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The 60th Anniversary of the Everson Decision and America's Church-State Proposition

Published online by Cambridge University Press:  24 April 2015

Carl H. Esbeck
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On February 10, 1947, the United States Supreme Court handed down Everson v. Board of Education of Ewing Township. For scholars of the First Amendment, Everson marks the beginning of the Supreme Court's modern era with respect to church-state relations. It is easy enough to state the reason for the decision's prominence, for it was in Everson where the Establishment Clause was first “incorporated” through the Fourteenth Amendment and made applicable to the actions of all state and local governments. But just what did it mean to take the restraints on federal power that comprise the principle of no-establishment and to make them limits on the governments of the several states, as well as on the thousands of municipalities, counties, and school districts that dot the land? In Part II of these remarks, I will focus on what has occurred downstream of Everson over these event-filled sixty years. As the reader will see, I am of the belief that Everson's new deal has resulted in more good than harm for religious freedom. Still the record is mixed, as it is with most major developments. However, before going there, in Part I of this extended essay, I look back in time to recapture just what was in the bundle of restraints that all nine of the Justices in Everson said they were bringing forward via the Fourteenth Amendment and making newly binding on the many unsuspecting state and local officials.

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Articles
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Journal of Law and Religion , Volume 23 , Issue 1 , 2007 , pp. 15 - 41
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Copyright © Center for the Study of Law and Religion at Emory University 2007

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References

1. 330 U.S. 1 (1947).

2. Religious pluralism is a fact. From the government's perspective, such pluralism is neither good nor bad. From the perspective of believers concerned for their liberty, religious pluralism is not necessarily bad so long as it is authentic. Openly acknowledging religious particularity in a civil society that lives with these differences amicably, without denying that the particulars truly matter, constitutes authentic pluralism. On the other hand, pluralism is undesirable when religious people are expected to hide their religious differences in the public square so as not to offend others of a different persuasion.

3. By “organized religion” I mean not only churches, synagogues, mosques, and religious organizations generally, but also identifiable systems of religion or religious observance such as Christianity, Judaism, Islam, Hindu, Buddhism, and the like, as well as their subdivisions such as Presbyterian, Catholic, Reformed Jewish, and Sunni religious communities.

4. See Wilson, John F. & Drakeman, Donald L., Introduction, in Church and State in American History 1, 1–12 (Wilson, John F. & Drakeman, Donald L. eds., 3d ed., Westview Press 2003)Google Scholar.

So there were two. Priest and prince, or church and state, each needed the other, but both were separate aspects of one society. This separated double authority structure is what marked off Western Christendom from Eastern Christianity, and it properly locates the significance of “church and state.”

Id. at 3-4.

5. The Great Schism of A.D. 1054 had earlier divided the church into Western Catholicism and Eastern Orthodoxy.

6. These state-by-state disestablishments are chronicled in my article Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 BYU L. Rev. 1385, 1448-1540 [hereinafter Esbeck, Dissent and Disestablishment].

7. Mead, Sidney E., The Lively Experiment: The Shaping of Christianity in America 34-35, 38, 42-45, 51–52 (Harper & Row 1963)Google Scholar (calling the coalition the “pietists” and the “rationalists”); McLoughlin, William G., New England Dissent, 1630-1833: The Baptists and the Separation of Church and State vol. 1, xv (Harv. U. Press 1971)Google Scholar (calling the allied parties the “pietistic” and “rationalist” approaches).

8. McLoughlin, supra n. 7, at xvii.

9. On the Virginia disestablishment, see Buckley, Thomas E., Church and State in Revolutionary Virginia 1776-1787, at 38–173 (U. Press Va. 1977)Google Scholar; Eckenrode, H.J., Separation of Church and State in Virginia: A Study in the Development of the Revolution 74–115 (Da Capo Press 1971)Google Scholar (originally published 1910); Miller, William Lee, The First Liberty: Religion and the American Republic 3-75, 96–106 (Alfred A. Knopf 1986)Google Scholar.

10. See Wilentz, Sean, The Rise of American Democracy: Jefferson to Lincoln 265-272, 279280, 349–352 (W.W. Norton 2005)Google Scholar. “[Revivalists] came to understand how the successful voluntarist innovations of the revivals had rendered formal state support unnecessary.” Id. at 270.

11. See Hatch, Nathan O., The Democratization of American Christianity 3–46 (Yale U. Press 1989)Google Scholar; Noll, Mark A., America's God: From Jonathan Edwards to Abraham Lincoln 207–208 (Oxford U. Press 2002)CrossRefGoogle Scholar. Historians Nathan Hatch and John Wigger report that:

The early American republic [was] … a period of great religious ferment and originality. The wave of popular religious movements that broke upon America in the generation after independence decisively changed the center of gravity of American religion, worked powerfully to Christianize popular culture, splintered American Christianity beyond recognition, divorced religious leadership from social position, and above all, proclaimed the moral responsibility of everyone to think and act for themselves. In this ferment, often referred to as the Second Great Awakening, Christendom witnessed a period of religious upheaval comparable to nothing since the Reformation-and an upsurge of private initiative that was totally unprecedented.

The mainspring of the Second Great Awakening was that religion in America became dominated by the interests and aspirations of ordinary people. In the generation after the Revolution, American Christianity became a mass enterprise—and not as a predictable outgrowth of religious conditions in the British colonies. The eighteen hundred Christian ministers serving in 1775 swelled to nearly forty thousand by 1845. While the American population expanded tenfold, the number of preachers per capita more than tripled; the colonial legacy of one minister per fifteen hundred people [became] one per five hundred. This dramatic mobilization indicates a profound religious upsurge—religious organizations taking on market form—and resulted in a vastly altered religious landscape.

Hatch, Nathan O. & Wigger, John H., Introduction, in Methodism and the Shaping of American Culture 13–14 (Hatch, Nathan O. & Wigger, John H. eds., Abingdon Press 2001)Google Scholar.

12. Wigger notes:

Older denominations rooted to traditional patterns of hierarchy steadily lost favor throughout the era. While the Presbyterians and, to a lesser extent, the Congregationalists and Episcopalians posted modest gains in absolute numbers, their rate of growth lagged far behind that of the Methodists and Baptists. This was true not only on the frontier but also throughout the United States. In the south Atlantic region, where the Methodists were prominent, the Episcopalians' share of church adherents dropped from 27 percent to 4 percent between 1776 and 1850. In cities such as New York and Baltimore, the one religious sentiment that working-class men and women in general seem to have agreed upon was a strong dislike for established, European-style clericalism. The early Methodist circuit rider James Quinn clearly understood the uniqueness of the American situation. Following the Revolution, wrote Quinn,

the anti-Christian union between the Church and state had been broken up, tithes and glebes could no longer be relied upon for Church revenue, and the religious orders of America were left free to choose their own course, and worship God, with or without name, in temple, synagogue, church, or meeting-house, standing, sitting, or kneeling, in silence or with a loud voice, with or without book.

Wigger, John H., Taking Heaven by Storm: Methodism and the Rise of Popular Christianity in America 9 (Oxford U. Press 1998)Google Scholar (footnote omitted).

13. See Hatch, supra n. 11, at 3-16; Noll, supra n. 11, at 443-445.

14. See McConnell, Michael W., The Supreme Court's Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic, 37 Tulsa L. Rev. 7 (2001)Google Scholar (reviewing four church-state disputes that reached the High Court in the first half of the 19th Century and were resolved without resort to the First Amendment).

15. See Barron v. City of Baltimore, 32 U.S. 243 (1833) (holding that the Bill of Rights is not meant to bind the states). That included, of course, the protection of religious freedom by the First Amendment; Permoli v. Municipality No. 1 City of New Orleans, 44 U.S. 589 (1845) (holding that First Amendment does not protect an individual's religious freedom from the actions of state officials).

16. See Bradfield v. Roberts, 175 U.S. 291 (1899) (upholding the use of federal funds for construction at a Catholic-affiliated hospital corporation situated in the District of Columbia).

17. The two additional pre-Everson cases are as follows: The Selective Service Draft Law Cases, 245 U.S. 366 (1918)Google Scholar (upholding exemptions from military draft for clergy, theology students, and pacifist denominations); Quick Bear v. Leupp, 210 U.S. 50 (1908) (upholding disbursement of Indian trust funds, held by the federal government as trustee, to a Catholic mission operating religious schools for Indian children). In both cases the Court did a mere summary inquiry into the meaning of no-establishment. Only one other Supreme Court case predating Everson expressly referenced the Establishment Clause. In Davis v. Beason, 133 U.S. 333 (1890), the Court upheld the conviction of a Mormon residing in the Idaho Territory for falsely taking an oath to the effect that he was not a member of any polygamous organization. The holding is properly recognized as a case about the Free Exercise Clause. However, in passing the Court noted that while the Establishment Clause prohibited government enforcement of a religious tenet, that truism did not imply that the observance of a religious tenet could not be prohibited by law in the interest of public morals. Id. at 345.

18. 333 U.S. 203 (1948) (invalidating a public school program permitting local churches to hold weekly religion classes in classrooms during regular school hours).

19. This understanding of voluntaryism is reflected in the modern Supreme Court's cases that distinguish the Establishment Clause from the Free Exercise Clause on the basis that the no-establishment principle (unlike free exercise) does not require a showing of coercion of religionbased conscience or other religious harm. Sch. Dist. of Abington Township v. Schempp, 374 U.S. 203, 221, 223 (1963); Engel v. Vitale, 370 U.S. 421, 430 (1962).

20. Examples of specific religious belief or observance are a theistic oath, worship services, proselytizing, prayer, devotional Bible reading (as opposed to the use of the Bible as literature or history), and the teaching of religion (as opposed to teaching about religion).

21. While voluntaryism will bear its own weight as a civil legal principle, the principle did coincide with those organized religions that believe that religious faith should be subscribed to and practiced wholly apart from the affirmative support of the government. The formidable Jesuit, Fr. John Courtney Murray, criticized voluntaryism as a Protestant reading of the Establishment Clause rather than, as was his view, the Religion Clauses of the First Amendment were merely an article of peace among multiple religious denominations. Murray, John Courtney, We Hold These Truths: Catholic Reflections on the American Proposition 58–72 (Image Books ed. 1964)Google Scholar; see Miller, supra n. 9, at 134-135, 218-221. However, Fr. Murray's role in Vatican II suggests that he came to see considerable merit in the American church-state proposition and he successfully worked to have the Roman Catholic Church move closer to the American view. See Noonan, John T. Jr., The Lustre of Our Country: The American Experience of Religious Freedom 331–353 (U. Cal. Press 1998)Google Scholar.

22. Rakove, Jack N., Original Meanings: Politics and Ideas in the Making of the Constitution 311–312 (Vintage Books 1997)Google Scholar.

23. See Esbeck, Dissent and Disestablishment, supra n. 6, at 1432-1448, 1498-1524 (surveying the efforts of Isaac Backus and John Leland).

24. See Noonan, supra n. 21, at 61-91.

25. Madison, James Jr., A Memorial and Remonstrance Against Religious Assessments ¶¶ 1, 8 (1785)Google Scholar, in The Papers of James Madison vol. 8, 299, 301–302 (Rutland, Robert A. & Rachal, William M.E. eds., U. Chi. Press 1973)Google Scholar.

26. There is no small number of religious Americans today who cling to the belief that active government support for religion qua religion is good and the removal of the government's support is bad. In the long term, however, it is the voluntaryistic proposition that active government support for religion is harmful in multiple ways: to be genuine, religion is the product of persuasion not state privilege; independent religious organizations are an effective check on the power of the state, which in turn helps to preserve and expand liberty; government support for religion often leads to civil religion instead of authentic faith, causing some to have contempt for a church that has become a lapdog to civil authorities; and active state support for religion can compromise (even co-opt) the church and silence her prophetic voice. See Esbeck, Carl H., The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L. Rev. 1, 63–75 (1998)Google Scholar (collecting authorities) [hereinafter Esbeck, Establishment Clause as Structural].

27. At the time of the American founding, republics were still experimental and thought to be unstable. The founders knew, for example, how sectarian division contributed to the failure of the English Commonwealth (1649-58). It was believed that for a nation-state to take sides in disputes over creeds and other specific forms of religious observance was to dangerously risk dividing the body politic just at the moment when unity was most needed. Hence, for example, religious tests for public office were bad for civic peace, as were civil courts attempting to resolve disputes over religious doctrine. See U.S. Const. Art. VI[3] (“[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”); Watson v. Jones, 80 U.S. 679 (1871) (no civil court jurisdiction with respect to disputes over religious doctrine, polity, or church discipline). But the focus of “divisiveness analysis” must be on the government alone and its specifically religious behavior. Care must be exercised so that “divisiveness avoidance” does not slop over and violate the Free Speech Clause or the right to expressive association. See McDaniel v. Paty, 435 U.S. 618, 640-642 (1978) (Brennan, J., concurring in the judgment).

28. Mead, supra n. 7, at 134-155; Handy, Robert T., A Christian America: Protestant Hopes and Historical Realities 82–133 (2d ed., Oxford U. Press 1984)Google Scholar.

29. Separation of church and state (voluntaryism) is not to be confused with the application of religious doctrine to questions of public morality and the codification of public morality into civil law. See Harris v. McRae, 448 U.S. 297, 319-320 (1980) (rejecting argument that codifying a moral position concerning abortion, one shared by some religions, was a violation of the no-establishment principle).

30. de Tocqueville, Alexis, Democracy in America vol. 1, 334–335, 337 (Reeve, Henry trans., 4th ed., Langley, J. & Langley, H.G. 1864)Google Scholar (originally published 1841).

31. Everson, 330 U.S. at 11.

32. Schempp, 374 U.S. at 221, 223 (holding that public school classroom prayer and devotional Bible reading violates the Establishment Clause); Engel, 370 U.S. at 430 (holding that public school classroom prayer violates the Establishment Clause).

33. Everson, 330 U.S. at 11.

34. Id. at 11-13 (Black, J., for the Court); Id. at 28, 33-41 (Rutledge, J., dissenting). For continued reliance on the Virginia experience, see Mitchell v. Helms, 530 U.S. 793, 870 (2000) (Souter, J., dissenting) (referencing the passage of the Virginia Bill for Establishing Religious Freedom). Additional authorities are collected at Esbeck, Dissent and Disestablishment, supra n. 6, at 1578-1584.

35. 392 U.S. 83 (1968). The Court in Flast held that even in the absence of actual “injury in fact,” federal courts have standing to hear taxpayer claims brought under the Establishment Clause where it is alleged that congressional appropriations are being wrongly channeled to religion. Id. at 105-106. In Hein v. Freedom From Religion Foundation, 551 U.S. ___, 127 S. Ct. 2553 (2007) (plurality opinion), seven Justices said they continue to adhere to the ruling in Flast, whereas a different majority of five Justices held that they would not extend Flast to discretionary actions by officials in the executive branch.

36. Daimler Chrysler Corp. v. Cuno, 547 U.S. __, __, 126 S. Ct. 1854, 1864-1865 (2006) (denying taxpayer standing in claim alleging a violation of the Dormant Commerce Clause).

37. 392 U.S. at 103-104. The Virginia experience was then attributed to the Establishment Clause (written four years later) as constituting a restraint “designed as a specific bulwark against such potential abuses of governmental power, and that [the] clause … operates as a specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Art. 1, § 8.” Id. at 104. This attribution of the Virginia experience to the Establishment Clause is dubious history, but the Court in Flast had an objective in mind other than fidelity to history.

38. Compare McCreaty Co. v. ACLU, 545 U.S. 844 (2005) (holding that recent depiction of the Ten Commandments in county building display case violates Establishment Clause), with Van Orden v. Perry, 545 U.S. 677 (2005) (plurality opinion) (determining that a stone monument on the grounds of a state capitol building depicting the Ten Commandments that had been in place for several years did not violate the Establishment Clause).

39. Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) (holding that non-custodial father did not have standing to maintain claim that voluntary public school student's recitation of “under God” in Pledge of Allegiance violates the Establishment Clause).

40. The Everson Court did indulged the wildly improbable assertion that the Virginia experience of 1784-86 was bootlegged by James Madison and Thomas Jefferson into the Establishment Clause of the First Amendment as it was being drafted by the First Congress meeting in New York City during the period June to September 1789. 330 U.S. at 11-13; id. at 28, 33-41 (Rutledge, J., dissenting). The drafting and ratification of the Bill of Rights entailed a mostly different cast of participants and an entirely new array of concerns. We have a sketchy but still informative record of the debate in both the House and Senate of the First Congress over the drafting and redrafting of the text that eventually became the Establishment Clause. See Witte, John Jr., Religion and the American Constitutional Experiment 80–89 (2d ed., Westview Press 2005)Google Scholar. There is no indication that the Virginia experience of a few years before was even mentioned during these debates or was otherwise a factor. While Madison was in the middle of things, Jefferson was in Paris serving as our ambassador to France.

41. Esbeck, Dissent and Disestablishment, supra n. 6, at 1387-1394, 1401-1414, 1589.

42. Tilton v. Richardson, 403 U.S. 672, 689 (1971); Schempp, 374 U.S. at 221, 223; Engel, 370 U.S. at 430.

43. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Empl. Div. of Ore. v. Smith, 494 U.S. 872 (1990). There are limited instances when even intentional discrimination on the basis of religion does not violate the Free Exercise Clause. See Locke v. Davey, 540 U.S. 712 (2004) (long-standing state constitutional provision prohibiting state funding of those training for the clergy was held sufficient to support exclusion of divinity student from state scholarship program without violating the Free Exercise Clause).

44. See Labunski, Richard, James Madison and the Struggle for the Bill of Rights 178–255 (Oxford U. Press 2006)Google Scholar. James Madison, Jr., a member of the House of Representatives, introduced the Bill of Rights and said their purpose was “to limit and qualify the powers of the Government, by excepting out to the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” 1 Annals of Congress 454 (House of Representatives, June 8, 1789) (Joseph Gales ed., Gales & Seaton 1834).

45. U.S. Const. Art. I, § 8, cl. 14 delegates to Congress the authority “To make Rules for the Government and Regulation of the land and naval Forces.”

46. See Rojas v. Fitch, 127 F.3d 184 (1st Cir. 1997) (holding that statutory exemption for faith-based organizations from unemployment compensation tax did not violate the Establishment Clause).

47. See Kurland, Philip B., Religion and the Law: Of Church and State and the Supreme Court 18, 112 (Aldine Pub. Co. 1962)Google Scholar (proposing that First Amendment means religion can never be use as a basis for classification by the government).

48. While religious exemptions from general regulatory and tax burdens are compatible with the Establishment Clause, exemptions that discriminate among religions or that cause government officials to be drawn into the task of resolving a question of religious doctrine in order to administer a law do violate the Establishment Clause. See Tex. Mthly., Inc. v. Bullock, 489 U.S. 1 (1989) (plurality opinion) (disallowing state sales tax exemption on sale of a narrow range of sacred literature); Larson v. Valente, 456 U.S. 228 (1982) (disallowing regulatory law that favored longstanding religions but not newly emerging faiths).

49. See The Selective Service Draft Law Cases, 245 U.S. 366 (holding that clergy, theology students, and religious pacifist could be exempt from military draft consistent with Establishment Clause); Gillette v. U.S., 401 U.S. 437 (1971) (holding that religious pacifist opposed to all war could be exempt from military draft consistent with Establishment Clause); Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) (holding that nondiscrimination statute could exempt religious organizations from prohibition on religious discrimination in employment consistent with Establishment Clause); Cutter v. Wilkinson, 544 U.S. 709 (2005) (holding that federal civil rights legislation requiring states to accommodate many religious practices of prison inmates was consistent with the Establishment Clause).

50. See Zelman v. Simmons-Harris, 536 U.S. 639 (2002); Mitchell, 530 U.S. at 801 (plurality opinion); Agostini v. Felton, 521 U.S. 203 (1997); Bowen v. Kendrick, 487 U.S. 589 (1988). These programs have a secular purpose, namely, education, health care, or social welfare services. Hence, funding the programs is clearly within the government's authority. It remains true, of course, that government cannot have as a legislative purpose the support of religion qua religion. An absolute in Establishment Clause jurisprudence is the “prohibit[ion against] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.” Bowen, 487 U.S. at 611 (quoting Sch. Dist. of City of Grand Rapids v. Ball, 473 U.S. 373, 385 (1985)).

51. See U.S. Dept. of Justice (Carl H. Esbeck), Statement Before the United States House of Representatives Concerning Charitable Choice, before the Subcommittee on the Constitution, U.S. House Judiciary Committee (June 17, 2001), reprinted at 16 Notre Dame J.L., Ethics & Pub. Policy 567 (2002). When the regulations are followed, the Faith-Based Initiative generally, and Charitable Choice in particular, have been found to be consistent with the Establishment Clause. See Freedom From Religion Found, v. McCallum, 324 F.3d 880 (7th Cir. 2003) (upholding a state-funded addict rehabilitation program operated by a faith-based organization); Am. Jewish Cong. v. Corp. for Natl. & Community Serv., 399 F.3d 351 (D.C. Cir. 2005) (upholding funding of federal AmeriCorps program operating in conjunction with religious university that was training teachers for inner-city schools).

52. See 210 U.S. 50, at 81-82 (1908) (upholding disbursement of money by the federal government of Indian trust funds, held by the government as trustee, to a Catholic mission operating religious schools for Indian children).

53. See Mueller v. Allen, 463 U.S. 388 (1983) (upholding state tax deduction for parents of students at religious school for education-related expenses).

54. See Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (holding that a student that transferred from public to religious high school did not lose his special education assistance).

55. See Zelman, 536 U.S. 639 (upholding state school voucher plan for urban area).

56. See Laycock, Douglas, The Underlying Unity of Separation and Neutrality, 46 Emory L. J. 43, 46 (1997)Google Scholar.

57. The first in this line of speech equal-access cases is Widmar v. Vincent, 454 U.S. 263 (1981) (striking down under Free Speech Clause state university restrictions on student religious groups meeting in university classroom buildings; exclusion not required by the Establishment Clause). The most recent speech equal-access case is Good News Club v. Milford C. Sch. 533 U.S. 98 (2001) (striking down under Free Speech Clause a K-12 public school's denial of after-school access to classrooms for religious group seeking to meet with children upon first obtaining parental permission; exclusion not required by Establishment Clause). A case involving equal access to a speech forum and thereby access to government financial aid that partly defines the forum is Rosenberger v. Rector & Visitors of U. Va., 515 U.S. 819 (1995).

58. The Free Speech Clause does not, of course, protect speech attributable to the government. The government has constitutional powers and duties, but no constitutional rights. Rights are to protect people from the government, not the other way around.

59. Depending on the facts, it can be a close call whether the speech in question is private or governmental. An example of the private versus government question being difficult is student-initiated prayer at the opening of a public high school football game. In Santa Fe Indep. Sch. Dist. v. Doe, a divided Court attributed the student's prayer to the government. 530 U.S. 290, 315-317 (2000). That seems rightly decided.

60. Cutter, 544 U.S. at 727-728 (Thomas, J., concurring); Elk Grove United Sch. Dist., 542 U.S. at 50 (Thomas, J., concurring in the judgment).

61. See Esbeck, Establishment Clause as Structural, supra n. 26, at 15-17 (collecting authorities).

62. Recognizing only the vertical denial, law professor Kurt Lash proposed a means whereby the vertical denial or “federalism theory,” meant to protect the states from the national government, can nevertheless be understood today as an individual right to religious liberty, and thus fairly incorporated via the Fourteenth Amendment. Lash, Kurt T., The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L.J. 1085 (1995)Google Scholar (arguing that how the American people thought about the Establishment Clause changed between 1791 and 1868, and that it is the thinking of 1868 that is relevant when incorporating the clause and applying it to the states). However, the evidence that the meaning of the Establishment Clause changed during this period is thin and not altogether convincing, as is the evidence that the Reconstruction Congress gave much thought to the current meaning of the Establishment Clause. See Hamburger, Philip, Separation of Church and State 436 n. 112 (Harv. U. Press 2002)Google Scholar (discussing why it is unlikely that the Fourteenth Amendment was meant to alter the meaning of the Establishment Clause); Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction 253, 385 n. 91 (Yale U. Press 1998)Google Scholar (historical evidence sparse and members of reconstruction Congress did not list non-establishment among their catalogue of rights); Brose, Jonathan P., In Birmingham They Love the Governor: Why the Fourteenth Amendment Does Not Incorporate the Establishment Clause, 24 Ohio N.U. L. Rev. 1, 17–29 (1998)Google Scholar (reviewing the congressional history of the post-Civil War debate over drafting the Fourteenth Amendment and certain religion questions, and concluding that in 1867 and 1868, the Establishment Clause continued to be viewed as a power-limiting clause rather than as a rights-based clause).

63. Ketcham, Ralph, Framed for Posterity: The Enduring Philosophy of the Constitution 103 (U. Press Kan. 1993)Google Scholar; Siegan, Bernard H., The Supreme Court's Constitution: An Inquiry into Judicial Review and Its Impact on Society 114 (Transaction Books 1987)Google Scholar; Esbeck, Establishment Clause as Structural, supra n. 26, at 15-22, 26-27 (citing additional authorities). For example, the 1789 Constitution gave Congress express power to legislate with respect to the admission of new states into the union. And in doing so, such legislation could touch on the matter of religion, so long as the law did not create “an establishment.” Indeed, the Northwest Ordinance of 1787, which the First Congress reenacted, did touched on the matter of religion in Articles 1 and 3, but did so in a manner that was not “an establishment.” See An Act to Provide for the Government of the Territory Northwest of the River Ohio, 1 Stat. 50, 52 (1789)Google Scholar.

64. The Court sanctioned such an exemption in The Selective Service Draft Law Cases, 245 U.S. 366 (holding, inter alia, that exemption from military draft of pacifists sects was constitutional), and again in Gillette, 401 U.S. 437 (holding that Congress may exempt a person from military service if he opposes all war but not those persons who object to participation in a particular war).

65. In a helpful recent article, law professor Steven Smith critiques others and further explains his own position with respect to the “jurisdictional theory.” See Smith, Steven D., The Jurisdictional Establishment Clause: A Reappraisal, 81 Notre Dame L. Rev. 1843 (2006)Google Scholar [hereinafter Smith, The Jurisdictional Establishment Clause]. Smith's earlier arguments for the “jurisdictional theory” had come in for criticism. See Smith, Steven D., Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 45–48 (Oxford U. Press 1995)Google Scholar (concluding that the historical search for a substantive rule or principle underlying the Religion Clauses is doomed to fail because the clauses were intended to be no more than a jurisdictional allotment of power to the states; hence the provocative title suggesting that the many scholars who have searched for a substantive rule or standard to guide the courts when applying the Establishment Clause were foreordained to fail). In his most recent contribution, Smith: (1) acknowledges the horizontal denial (not just the vertical) that the Establishment Clause worked on federal power; and (2) notes that jurisdictional allocations necessarily have substantive consequences. Smith, The Jurisdictional Establishment Clause, supra n. 65, at 1861, 1874-1880. From the outset this meant, as Smith seems to acknowledge, that at the horizontal level Congress had no power (or “jurisdiction”) with respect to making laws about “an establishment,” but that Congress could draw on one of its original enumerated powers with respect to making laws more generally about religion. For example, using its expressed power to regulate the armed forces Congress could provide for military conscription, but then could also exempt religious pacifists. Such a law is within Congress' power (or “jurisdiction”) whereas the exemption, while about religion, is not “an establishment” of religion. Smith's reappraisal gets it right, it seems to me, but drains his original 1995 argument of much of its force. We see that Congress in 1791 and going forward has to work out a definable line between when it has jurisdiction to legislate about religion and when it does not have jurisdiction to legislate about religion because the desired act is “an establishment.” Call it jurisdictional or call it a substantive rule, is not this line-drawing the working out of a theory of church-state relations? As such, the Establishment Clause is about the separation of church and state or, more to the point, the clause is about properly ordering relations between church and state. Each has its own center of cognizance. Whether one calls it a “jurisdictional” or a “structural” Establishment Clause, they are one and the same. See generally Esbeck, Establishment Clause as Structural, supra n. 26. Moreover, this development ought to come as little surprise because the dual-authority pattern of divided jurisdiction between government and church has been part of the Western legal tradition since the fourth century. See Esbeck, Dissent and Disestablishment, 2004 BYU L. Rev., supra n. 6, at 1391-1392 1401-1432.

66. See Henry, Patrick, A Bill Establishing A Provision for Teachers of the Christian Religion (12 24, 1784)Google Scholar in Buckley, Thomas E., Church and State in Revolutionary Virginia 1776-1787, at 188–189 (U. Press Va. 1977)Google Scholar.

67. 210 U.S. at 81-82. The Court said “we cannot concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the Government is necessarily undenominational.” Id. at 81.

68. 175 U.S. at 292.

69. A typical example is as follows:

There can be a natural antagonism between a command not to establish religion and a command not to inhibit its practice. This tension between the clauses often leaves the Court with having to choose between competing values in religion cases. The general guide here is the concept of neutrality. The opposing values require that the government act to achieve only secutar goals and that it achieve them in a religiously neutral manner. Unfortunately, situations arise where the government may have no choice but to incidentally help or hinder religious groups or practices.

Nowak, John E. & Rotunda, Ronald D., Principles of Constitutional Law 764–765 (3d ed., Thomson West 2007)Google Scholar.

70. See Esbeck, Carl H., “Play in the Joints between the Religion Clauses” and other Supreme Court Catachreses, 34 Hofstra L. Rev. 1331 (2006)Google Scholar (providing an expansion of this argument).

71. See e.g. Neuhaus, Richard John, A New Order of Religious Freedom, 60 Geo. Wash. L. Rev. 620, 627–629 (1992)Google Scholar; Noonan, John T. Jr., The End of Free Exercise?, 42 DePaul L. Rev. 567, 567 (1992)Google Scholar.

72. See Esbeck, Carl H., Differentiating the Free Exercise and Establishment Clauses, 42 J. Church & St. 311, 323–325 (2000)Google Scholar (explaining in greater detail that the clauses-in-conflict problem is avoided by a rights-based Free Exercise Clause and a structural Establishment Clause, each in its own way protecting religious freedom). Further, the courts, commentators, and indeed, nearly everyone, presently speak and write in terms of two Religion Clauses. That convention will be virtually impossible to change. Finally, given the sharp cut-back in free exercise protection as a result of the decisions in Smith, 494 U.S. 872 (limiting protection of Free Exercise Clause to intentional discrimination against religion) and Locke, 540 U.S. 712 (long-standing state constitutional provision prohibiting state funding of those training for the clergy was held sufficient to support exclusion of divinity student from state scholarship program without violating the Free Exercise Clause), it is a foolish tactic to argue that the freedom of the church rests primarily on the free exercise text.