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Establishment Clause: Church & State

The so-called separation of Church and State is a hot topic issue that inevitably results in differing opinions. But what does the U.S. Constitution actually say on the issue?  The First Amendment provides, in part, that “Congress  shall make no law respecting an establishment of religionor prohibiting the free exercise thereof.” The bold provision is the Establishment Clause; the latter is the Free Exercise Clause.

These clauses were included in the Constitution to protect against the establishment of a national Church and protect the freedom of conscience and religion. James Madison is recognized as the principal architect of these provisions (and the U.S. Constitution). By forbidding the “establishment of religion” and guaranteeing the “free  exercise thereof,” the Religion Clauses ensured that the Federal Government—unlike the English Monarch— would, among other things, have no role in filling ecclesiastical offices. The legal effect, therefore, is that there is a firm distinction drawn between between civil and religious functions. More specifically, as a recent U.S. Supreme Court opinion (Hosanna-Tabor) announced, Madison’s understanding of the establishment clause was as follows:

The [Religion Clauses enact] into, and  [establish] by law, sundry rules and proceedings relative purely to the organization and polity of the church incorporated, and comprehending even the election and removal of the  Minister of the same; so that no change could be made therein by the particular society, or by the general  church of which it is a member, and whose authority it recognises [sic].” 22 Annals  of Cong. 982–983 (1811).

In spite of these understandings, the present test for the establishment clause is as follows: a law is permissible under the Establishment Clause only if: (1) it has a secular legislative purpose, (2) its primary or principal effect is neither to advance nor to inhibit religion, and (3) it does not foster excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). Do note, however, that this test was formulated by the Supreme Court several decades ago. The composition of the Court has changed dramatically since then and it would not be surprising that the scope of Establishment Clause analysis is changed should a new case be reviewed.

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