What is the historical meaning of the First Amendment regarding religion?

There are two schools of thought on the Constitution; either those that are strict Constitutionalists or those that believe it is a living, breathing document that changes with the times. Certainly there were assumptions at the time the Constitution was written when most of those in government were protestant. Though not in any judicial position, I tend to argue a strict Constitutional view. It’s the same with the Bible, the Bible is either the infallible, inspired, Word of God or is subject to change such as the view of liberals and progressives relative to the culture. I account for the change in times but like the Bible I try to seek it’s original meaning.

Prior to the Constitution, the several states had their own laws. Religion was important and most addressed it in new state constitutions. Some that settled the various states were those that had escaped religious persecution. Even among the various Christian denominations the theology differed. No denomination wanted a state sponsored or from a historical perspective, “established” religion that might force change on their beliefs and no denomination wanted to be mixed with politics. I know as a PCA Presbyterian, I do not want to be forced to follow a more liberal denomination or even one that differs in theology. I’m sure in the same sense no individual from another denomination wants to be told by government to only follow what PCA Presbyterians believe in.

The mantra of most Americans is a separation of church and state. Various denominations and religions as well as those that have no religion do not want their theological belief system (or unbelief) changed or another forced on them. The phrase, “Wall or hedge of separation”, was first used by the founder of Rhode Island, Roger Williams. Williams also founded the first (not First) Baptist church in America. Later, Thomas Jefferson wrote a letter to the Danbury Baptist Association using the phrase, "a wall of separation between church and state”, when referring to their fears in that both the establishment verbiage and free exercise language together supported their freedom to worship without persecution.

The First Amendment says, “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”. No where in the Constitution does the phrase exist regarding “separation of church and state”. There are multiple appellate cases, even more notable from the United States Supreme Court that address those areas where religion and any level of American government overlap. In the 1947, US Supreme Court case of Everson v Board of Education, the Township of Ewing, NJ under New Jersey law allowed the free public transportation of not only public school children but also the “not for profit” private schools which were mostly parochial, Catholic schools. Everson had argued against taxpayer funding of bus transportation of parochial students. The Supreme Court said that the public transportation was for the public benefit and outweighed the potential entanglement. Furthermore, that due process of the Fourteenth Amendment was not violated.

In 1971, the United States Supreme Court decided the case of Lemon v Kurtzman. It was from that case that the “Lemon Test” was created for subsequent cases. The Lemon test hinged on the following; government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. For four decades that test was used without consistency and began to face criticism. In the 2022, Kennedy v Bremerton case involving a coach’s postgame prayers, Justice Neil Gorsuch said that the (Lemon) test, “must be interpreted by ‘reference to historical practices and understandings.’ ”. He felt that the Lemon test had caused a “vice between the Establishment Clause on one side and the Free Speech and Free Exercise Clauses on the other.”. This seems to provide a more thoughtful shift relative to future First Amendment cases.

An example of government “entanglement” with religion has been presented in the Winter holiday displays where legal action has been brought against municipal displays of manger scenes on public property. Municipal governments have found through legal advice and Court rulings that displays that meet certain historical display criteria involving both secular and religious symbols have been successful. Such displays may include displays of a manger scene, a menorah as well as a Christmas tree and Santa Clause.

The First Amendment relative to religion has (1) wrongly been described as primarily a function of forming a hedge between church and state, (2) the free exercise clause has received less attention especially as time marches on when religious diversity and culture has overwhelmed a time in this nation when it was mostly Protestant with minority Catholic and Jewish faiths, and (3) the historical meaning of establishment was not to found but rather understood more as a predominant existing institution. The founders did not want a Church of England type institution in this new nation with a restricted ability to worship from different theological views and they also wanted to protect religion from a government imposing its own views into theology or the views of a single theological institution.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

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