In this two-part essay, Cayden Connally explores the differing interpretations of the First Amendment to the Constitution. Part 1 examined the historical context of the First Amendment. This second part explores the common law precedent. If you haven’t read the first installment, read it here.

The Case for the Accommodationist View of the Establishment Clause of the 1st Amendment - Part 2

Accommodationism, the Establishment Clause, and the Common Law Precedent

Before the 14th Amendment was enacted in 1868, the Supreme Court had ruled that the protections of the Bill of Rights only applied to the federal government and not to state governments. This is most famously seen in the case of Barron v. Baltimore (1833), when Chief Justice Marshall and a unanimous Court held that the City of Baltimore did not have to compensate Barron for establishing a public works project that caused Barron’s business to take significant losses (Pacelle Jr., “Barron v. Baltimore”). This was because the Court ruled that the 5th Amendment’s protections against deprivations of property without due process and the remainder of the Bill of Rights only restrained the federal government (Pacelle Jr., “Barron v. Baltimore”). Consequently, this case shows that even several years after the ratification of the Establishment Clause, the Court took no issue with state establishments of religion per se. Indeed, as stated before, the wording of the Establishment Clause—“Congress shall make no law…” (emphasis added)—and the fact that six states had established churches at the time of the Clause’s ratification confirm this (Deverich 219-220).

Though the 14th Amendment’s Due Process Clause would gradually be used to incorporate the Bill of Rights to the states, the lack of major challenges to the presumptive accommodationist system after the 14th Amendment’s ratification lends itself to being more consistent with accommodationism than strict separationism. It was not until the very end of the 19th century that the accommodationist system was challenged in the Supreme Court. In 1899, the Supreme Court took up Bradfield v. Roberts, which challenged the constitutionality of using federal funds to support a hospital in Washington D.C. that was run by the Catholic Church. The Court found that the Congressionally-appointed funds to the hospital were constitutional because the hospital was first established by Congress for the strict purpose of caring for the ill and physically-handicapped (“Bradfield v. Roberts”). Because the purpose of establishing and supporting the hospital was not to promote Catholicism over other religious sects, Congress could constitutionally accommodate funds for the religiously-staffed hospital (“Bradfield v. Roberts”). Though it was based on a secular purpose, this decision from the Court still does not appear consistent with strict separationism, as it directly entangles a government-supported hospital with religion since it was operated by a Catholic institution. However, its reasoning and outcome are consistent with accommodationism.

It was only forty-eight years later in the aforementioned Everson v. Board of Education (1947) case when the Supreme Court started its shift away from accommodationism into strict separationism and consequently inconsistent standards. In this case, the Court incorporated the Establishment Clause to the states (“Everson v. Board of Education”). Moreover, though the decision upheld New Jersey’s funding of transportation to both parochial and non-parochial schools, it narrowed the Supreme Court’s past allowances of cooperation between church and state (“Everson v. Board of Education”). Writing for the majority decision, Justice Hugo Black said:

“The ‘establishment of religion’ clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another…No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state’ (“Everson v. Board of Education”).”

Here, Justice Black explicitly states that neither the federal government nor states can pass laws to aid any religious activities or institutions with tax dollars. However, the statements Justice Black articulates in this paragraph contradict not only the previously discussed historical context and precedent of the Establishment Clause but also seemingly his own holding in the case. Religions have goals concerning not only worship of God but also charity towards Man. If medical care or education are often goals of religions, then why would not tax money funding religious hospitals or transportation to parochial schools constitute supporting—in Justice Black’s words—“any religious activities or institutions?”

In his dissent for Everson, the strict separationist Justice Robert Jackson noted this problem, saying, “to render tax aid to its Church school is indistinguishable…from rendering the same aid to the Church itself (Ward).” For this reason, many have noted that the Everson case amounted to an awkward middle position: an accommodationist result with strict separationist rationale (Ward). Indeed, both sides tend to cite this case in support of their views (Ward). Nevertheless, since the Everson decision utilized contradictory separationist reasoning, was based on a faulty understanding of Jefferson’s letter to the Danbury Baptists, and reached an accommodationist outcome, it is ultimately best understood as supporting accommodationism.

After Everson, the Supreme Court did not stop in utilizing inconsistent rationale to lead jurisprudence further into the direction of strict separationism. Some years later in 1971, the Court in Lemon v. Kurtzman deviated from the prior Everson ruling and struck down Pennsylvania and Rhode Island legislation directed towards compensating parochial schools for certain costs (McGovern). The legislation allowed the respective states to use taxpayer money to compensate parochial schools for the cost of textbooks, teachers’ wages, and other educational resources (McGovern). Combining different standards from the previous cases of Abington School District V. Schempp (1963), Board of Education v. Allen (1968), and Walz v. Tax Commission (1970), Chief Justice Warren Burger and the unanimous majority opinion crafted the Establishment Clause standard of review that is still in some use today: the Lemon Test (McGovern). The Lemon Test has three prongs in order for legislation concerning aid to religion to be constitutional (Pacelle Jr., “Lemon Test”):

1. It must have a clear secular purpose.

2. Its primary effect must be neither to advance nor inhibit religion.

3. It must not result in an excessive government entanglement with religion.

Specifically, in Lemon, the Court stated that Pennsylvania and Rhode Island had violated the “excessive entanglement” prong because “a comprehensive, discriminating, and continuing state surveillance will inevitably be required” in order to ensure that the funds going to the schools are not being used to teach religious doctrine (McGovern). It is this third “excessive entanglement” prong that has lent itself to a great deal of inconsistency (Pacelle Jr., “Lemon Test”). The prong is so vague that Justices of different political persuasions have a great deal of subjective choice when it comes to deciding what constitutes “excessive entanglement” (Pacelle Jr., “Lemon Test”). Separationists would of course use it to divide church and state, but accommodationists could just as easily use it to uphold the laws in question (Pacelle Jr., “Lemon Test”).  

The Lemon Test as a whole is also vague enough that it has led to further inconsistent rulings behind separating religion from the government. While Burger himself likely intended this test to be accommodationist, it has become irrevocably tied to the cause of strict separationists since it was first constructed (Pacelle Jr., “Lemon Test”). For instance, the Court used the Lemon Test in Lee v. Weisman (1992) to strike down high school graduation ceremonial prayers, even if they were nondenominational (Pacelle Jr., “Lemon Test”). Moreover, just five years later in 1997, the Court expressed some doubt in the strength of the Lemon Test by merging the “excessive entanglement” prong into the “primary effect” prong in Agostini v. Felton (Pacelle Jr., “Lemon Test”).

So, the history of case law on the Establishment Clause shows the coherence of accommodationism and the incoherence of strict separationism. From the ratification of the 1st Amendment up to Everson, the accommodationist Court had clear standards of interpretation. However, beginning in Everson and especially after Lemon, the Court dipped into inconsistency once it adopted more strict separationist standards of review.

Conclusion

The debate between accommodationists and strict separationists over the relationship between church and state is not likely to end anytime soon. Nonetheless, both sides do not have equal merit. The historical context surrounding the ratification of the Establishment Clause and the religious character of the United States side in favor of accommodationism over strict separationism. Also, the history of Establishment Clause case law has shown accommodationism to be a more consistent point of view than strict separationism. For the sake of faithfulness to the meaning of the text and also to maintain a consistent standard of application, the Supreme Court ought to adhere more closely to accommodationism rather than strict separationism.

Cayden Connally is presently a senior at the University of Texas at Austin. He grew up in the West Texas town of Midland. Majoring in government and minoring in philosophy of law, his interests include learning about theology, philosophy, history, politics and how all these things play into one another. Moreover, he also enjoys watching classic films, visiting landmarks, and having deep discussions with friends. After graduating, Cayden plans to work in politics before eventually attending law school.

Works Cited

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Bobic, Michael P., and John R. Vile. “Accommodationism and Religion.” Mtsu.edu, First Amendment Encyclopedia, 2017, mtsu.edu/first-amendment/article/825/accommodationism-and-religion.

“Bradfield v. Roberts.” Berkleycenter.georgetown.edu, Berkley Center for Religion, Peace and World Affairs, berkleycenter.georgetown.edu/cases/bradfield-v-roberts.

Deverich, Carolyn A. “Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitary- Accommodationist Argument for the Constitutionality of God in the Public Square.” BYU Law Review, vol. 2006, no. 1, 1 Mar. 2006, pp. 217–220.

“Everson v. Board of Education, 330 U.S. 1 (1947).” Supreme.justia.com, Justia, supreme.justia.com/cases/federal/us/330/1/.

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Noll, Mark A., and Luke E. Harlow. Religion and American Politics: From the Colonial Period to the Present. Oxford University Press, 2007, pp. 82.

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Pacelle, Richard L. “Lemon Test.” Mtsu.edu, First Amendment Encyclopedia, mtsu.edu/first-amendment/article/834/lemon-test.

Ryman, Hana M., and J. Mark Alcorn. “Establishment Clause (Separation of Church and State).” Mtsu.edu, First Amendment Encyclopedia, mtsu.edu/first-amendment/article/885/establishment-clause-separation-of-church-and-state.

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The Writings of George Washington: from the Original Manuscript Sources. United States Government Print. Office, 1940.