The Establishment Clause

This excerpt from Chapter 2 of "The First American Founder: Roger Williams and Freedom of Conscience" by Alan E. Johnson discusses the events leading up to and surrounding the trial and banishment of Roger Williams from the Colony of Massachusetts Bay in 1635-36.  After spending that winter in the New England wilderness, succored only by his Native American friends, Williams went on to establish the new settlement of Providence (later in Rhode Island) based on liberty of conscience and separation of church and state.

I venture to explore and explain the original intent and original meaning of the Establishment Clause. This paper finds that the “separation of church and state” doctrine so largely espoused is not how many of the writers and ratifiers of the First Amendment understood the Establishment Clause. There was disagreement amongst some of the writers as to the intent of the clause, but the majority of congressmen and state legislators understood the clause as preventing the federal government from creating a national religion or preferring one religion to another so as to allow the states to have their own established churches unfettered by federal interference. The Establishment Clause implicitly gives to those states the power to support whichever religion they choose. This understanding of the Establishment Clause, one that is a strictly federal prohibition, goes against the modern jurisprudential understanding that the Establishment Clause can be incorporated against the states. I will contend that based on the original intent and arguments of constitutional construction, the Establishment Clause should not have been incorporated because it is a right intended to protect the states, not the people.

The definition of "theocracy" has perplexed scholars for many centuries.  Some argue that theocracy exists only when religious leaders are also the actual, official political leaders and, as such, impose their particular theological views on the populace at large.  This essay argues that effective control of a polity by religious leaders and their theology is dispositive, regardless of the governmental organization that exists on paper.  For example, Roger Williams pointed out that in many theocracies (including that of seventeenth-century Massachusetts Bay) "the Magistrate is but the Ministers Cane through which the Clergy speaks . . . ."  "The Bloody Tenent Yet More Bloody" (London, 1652), 131.  The present essay was incorporated, with some additions and revisions, into Appendix B of Alan E. Johnson's book "The First American Founder: Roger Williams and Freedom of Conscience" (http://www.amazon.com/First-American-Founder-Williams-Conscience/dp/1511823712/ref=sr_1_1?s=books&ie=UTF8&qid=1436397728&sr=1-1).  For a summary of some of the points in this book, see the author's YouTube channel (https://www.youtube.com/channel/UCOlUZaehYk7WmwW8v9oBMzQ) about Roger Williams, including an interview (https://youtu.be/mGRl5lIbdYY) with the author about this book.

Note:  The sentence and citation on page 5, n.1, in this article referring to John M. Barry's book on Roger Williams should be qualified by Barry's remarks elsewhere in his book:  "Technically, the Bay was not a theocracy. Consistent with the admonition to render unto Caesar the things that were Caesar’s, and to God those which were God’s, the plantation prohibited a minister or church officer from simultaneously holding a government office. (For this reason some historians have argued that Puritan Massachusetts actually advanced the concept of separation of church and state.) But if not a theocracy, Massachusetts was theocentric."  Barry, Roger Williams, 169.  As discussed in this article, I disagree with the position that Massachusetts Bay was not a theocracy.

This outline was prepared for the May 16, 2019 meeting of Discussion Group 2 of the Pittsburgh Freethought Community.  Its purpose is to cite and (where possible) link selected primary and secondary sources on freedom of conscience and church-state separation.  The end of each section poses questions for the consideration of the reader.

In my essay, a case study of civil religion, I propose to examine both the history and evolution of the Pledge of Allegiance and the ultimate decision of the Supreme Court in terms of its constitutionality, as well as the remarkable dissents, using the famous notion of Robert N. Bellah. The Pledge case reveals the controversial legal as well as public attitudes towards the role of religion in American public life, especially the growing gulf between the predominantly separationist interpretation of the Establishment Clause by the Court since World War II, on the one hand, and the continuing strong role of religion in American public life, on the other.

In Elk Grove Unified School District v. Newdow (2004), Justice Clarence Thomas opined that the First Amendment’s Establishment Clause is a “federalism protection” that does not protect an individual right of “non-establishment.” Although a federalism interpretation of the Establishment Clause has a long (albeit sporadic) history in law review scholarship, no modern Supreme Court justice had advocated its adoption before Justice Thomas’s Newdow opinion.

This article takes Justice Thomas’s interpretation seriously. Through an investigation into the historical and political context that led to the drafting of the Establishment Clause, I find evidence to support Justice Thomas's reading. Justice Thomas, however, did not draw the full implications of his federalist interpretation. Recovering the Founders’ original concern with federalism necessarily means that the original intention that animated the adoption of the Establishment Clause cannot be applied to modern day, incorporated “no-establishment” jurisprudence.

Religious freedom is often listed among the core freedoms that characterize the liberal state-along with freedom of speech, freedom of association, and freedom of the person. But it may seem that what is valuable about religion, from a liberal point of view, would be sufficiently protected by these other core freedoms. Does religious freedom have a special role to play in a liberal state?

The attached PDF contains the title page, copyright page, epigraphs, and table of contents for "The First American Founder: Roger Williams and Freedom of Conscience" by Alan E. Johnson (available in paperback and Kindle editions at Amazon websites throughout the world).  For additional information, see http://www.amazon.com/First-American-Founder-Williams-Conscience/dp/1511823712/ref=sr_1_1?s=books&ie=UTF8&qid=1436397728&sr=1-1.

Legal studies suffer from a conspicuous lack of method.  Much of the field is dominated by pre-methodical commonsense eclecticism, a dominance that excludes efficient and effective collaboration.  This article argues that Bernard Lonergan's articulation of an eight-fold method for the human sciences called "functional specialization" could be productively employed in legal studies so that the field might eventually begin to yield cumulative and progressive results, rather than endless and fruitless disputation.  The article illustrates its central thesis by briefly applying Lonergan's method to the field of legal studies concerned with the Establishment Clause of the First Amendment.

Although James Madison has been invoked by justices and judicial scholars for over 100 years, Madison's principle of religious liberty has never been fully grasped or adopted by the Supreme Court. Judges and scholars have failed to understand Madison's radical but simple teaching that religion is not part of the social compact and, therefore, that the state may not take religion within its cognizance. In this article I set forth Madison's principle of " noncognizance " in light of the social compact theory he articulates in the " Memorial and Remonstrance. " I then attempt to show how it consistently explains Madison's political actions and writings on religious liberty. I conclude by explaining how a " Madisonian " approach, properly understood, would adjudicate the First Amendment's religion clauses.

RESUMEN: En este trabajo se analizan los métodos de comprensión e interpretación constitucional utilizados tanto por la Suprema Corte de los Estados Unidos, como por el Tribunal Constitucional Federal de Alemania, con especial atención a casos en donde se involucra la libertad religiosa. El enfoque es sobre la forma en que ambos tribunales interpretan las relaciones entre el Estado y la Iglesia y las posibilidades de que éstas limiten o violenten derechos fundamentales. El énfasis de este trabajo se encuentra en la necesidad de que los jueces constitucionales resuelvan este tipo de casos difíciles optimizando los intereses involucrados y no intentando definir cuál es el significado de las normas constitucionales o la intención del Constituyente.

For Foreign Service Officers, the American principle of "separation of church and state" need not inhibit discussion of religion's role in American society, in other countries, or in international affairs.  The American norm is religious liberty, always and everywhere a goal of American foreign policy.  Education on religious liberty begins with the First Amendment to the Constitution, the Virginia Statute of Religious Freedom (1786), and President George Washington's letters to religious congregations (1789-1793).  Discussions call for clear word choices – "establishment," "toleration," "tolerance," "freedom to worship," "freedom of worship," "freedom of conscience," and "freedom of religion."  "Religious freedom" or "religious liberty" is the American standard, not mere "toleration."

This book is about Roger Williams (ca. 1603-83), who was banished from the colony of Massachusetts Bay for advocating freedom of conscience, separation of church and state, Native American rights, and related matters.  He founded the town of Providence in what became Rhode Island on the basis of full liberty of conscience and complete separation of religion and government.  For additional information, see the uploaded PDF and links.

The book is available in paperback and Kindle e-book editions at Amazon websites throughout the world.  The paperback is also available at some other websites and bookstores.

See also my YouTube channel (https://www.youtube.com/channel/UCOlUZaehYk7WmwW8v9oBMzQ) about Roger Williams, including an interview (https://youtu.be/mGRl5lIbdYY) with me about this book.

For Errata and Supplemental Comments, see the separate document uploaded at https://www.academia.edu/13798228/Errata_and_Supplemental_Comments_to_The_First_American_Founder_Roger_Williams_and_Freedom_of_Conscience.

Alan E. Johnson

The essay focuses on the landmark separatist decisions of the US Supreme Court between 1948 and the 1960s, during which the "separation of church and state" was fully established as a precedent derived from the Establishment Clause of the Bill of Rights.

An enormous effort has been dedicated to uncovering the original meaning of the First Amendment’s religion clauses, but, surprisingly, little research has been directed toward the Founding-era state constitutions on church and state. This article aims to open a field of inquiry by making the church-state provisions of the Founding-era state constitutions more accessible. It begins with a consideration of the distinction between the state declarations of rights and the state constitutions and the interpretive challenge this distinction poses. I then identify, categorize, and interpret the relevant church-state provisions of the Founding-era state declarations of rights and constitutions. The article concludes with a discussion of how a deeper knowledge of the Founding-era state church-state provisions might shed light on the original meaning of the First Amendment’s religion clauses, and it reveals the probable errors of particular originalist arguments made by leading scholars and Supreme Court justices.

The present essay addresses some of the historical background to the Religion Clauses (Establishment Clause and Free Exercise Clause) of the First Amendment to the US Constitution.  This discussion focuses on selected historical developments, including some that are not well known.  It does not attempt a complete analysis, which would require a book-length treatment.

Buck, Christopher. “The Constitutionality of Teaching Islam: The University of North Carolina Qur’an Controversy.” Essay VIII. Observing the Observer: The State of Islamic Studies in American Universities. Edited by Mumtaz Ahmad, Zahid H. Bukhari and Sulayman S. Nyang. Herndon, VA: International Institute of Islamic Thought, 2012. Pp. 137–177.

Review: The editors describe Christopher Buck’s essay as the first comprehensive treatment of the 2002 University of North Carolina controversy, characterized by Michael Sells as “suing the Koran on behalf of the Bible” (pp. xxiii and 138). This narrative-cum-analytic essay by an attorney and independent scholar documents an important post-9/11 controversy at a major university and demonstrates that even the academic study of Islam is not safe from what some observers have called the “Islamophobia industry.” (Usaama al-Azami, Review of Observing the Observer: The State of Islamic Studies in American Universities (2012). The American Journal of Islamic Social Sciences 30:3 (2013): 94–97 [96].)

Van Orden v. Perry​ (2005) and ​McCreary County v. ACLU​ (2005) are both Supreme Court cases
that were heard in the 2005 session. Both cases address the constitutionality of religious
monuments on government grounds, more specifically, the Ten Commandments, or Decalogue,
in the form of a monument display. Both case petitioners asserted the displays were a violation
of the First Amendment, precisely of the Establishment Clause: “Congress shall make no law
respecting an establishment of religion or prohibiting the free exercise thereof.” Both cases were
given ​writ of ​certiorari​. ​Both cases raised the same issue, but the cases had different outcomes.
One display was held to be constitutional and the other was ruled unconstitutional, evoking the
question: What was the intent of the First Amendment designers, and how does the ​stare decisis
of the First Amendment, specifically in regard to the Establishment Clause, pertain to the
differing opinions handed down by the Supreme Court?
A key point that is further developed is the primacy of religion within the founding of the
United States and the subsequent establishment of the Constitution. The totality of what it means
to “respect” an “establishment” of religion is examined. The role of the Ten Commandments as
they pertain to the United States central government and the law of the Constitution are
examined. The totality of the circumstances of the two cases is viewed through the prism of the
intended outcome and interpretation of the Constitution. It is the prism of a democratic republic
and not a judicial review.

This Article shows that the European Court of Human Rights case of Lautsi v. Italy, upholding the display of a crucifix in an Italian state school classroom, compares favorably to recent United States Supreme Court cases that have upheld the display of crosses and Decalogues on public property. Both the European Court and the Supreme Court now grant greater deference to longstanding public displays of religion, to local decision-making about which religious symbols to maintain, and to the social utility and value of having public displays of religion in a pluralistic democratic society. Moreover, they have come to hold that protection of religious freedom does not require the secularization of society, but protection against coerced participation in or support for religion.

This Article responds to Lenn Goodman’s book, Religious Pluralism and Values in the Public Sphere (2014). Part I evaluates Goodman’s argument that John Rawls excludes “comprehensive” religious and moral arguments from public discourse. Part II analyzes Professor Goodman’s prediction that it will be practically difficult to enforce Rawlsian standards of public reason, and then shows how this is the case in U.S. constitutional law wherein American courts have had difficulty applying “secular purpose” norms to contested legislation. Part III describes more recent trends in constitutional law that accommodate religious pluralism in laws and legislative processes. The authors argue that Goodman’s interpretation of Rawls should be tempered by fuller engagement with Rawls’s later writings, which were relatively open to the substantive roles of religion in public reason and public discourse. They further argue that recent trends in U.S. constitutional law may promote the types of pluralistic discourse that Goodman and the later Rawls advocate.

This Article challenges the criticisms of religious freedom that have emerged among recent academics and politicians, and the growing subordination of religious freedom to sexual freedom claims. In particular, we analyze recent critical scholarship that claims that religious liberty was not important to the American founders and that calls for the removal of special religious exemptions and accommodations because they are said to threaten other fundamental rights and to privilege religion unfairly. These critical arguments we find historically false, philosophically misguided, sociologically one-sided, and increasingly dangerous given the perilous state of religious freedom around the world today. We call for a return to the founders' insights that religion deserves special constitutional protection and that religious freedom must be open to all forms of religion and belief. We also call for a proper balancing of the enduring principles of freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and disestablishment of religion, which together have helped forge the unique protection of religious freedom that America holds out to all its citizens, and to the world.

Professor Addicott’s article addresses the future legal ramifications that the fledgling intelligent design movement and the scientific concept known as the Anthropic Principle will have on the teaching of Darwinian evolution in public schools.  Both ideas are associated with the concept that an “unnamed” intelligent designer is responsible for the creation and sustainment of life.  Predicting that the Supreme Court will ultimately allow, for instance, school boards to incorporate intelligent design in the science curriculum, he believes neither of the two ideas violate the Establishment Clause and cannot be “dismissed as yet another back door attempt by creationists to get a sectarian religious idea into the public schools.”


In tracing the evolution/creation debate, Professor Addicott clearly establishes all the interested segments in the controversy to include the Fundamentalist creationists and “Darwinian activists.”  Interestingly, in evaluating how the Court will view intelligent design, Professor Addicott explores what he terms the “Darwinian paradigm”―arguing that Darwinian activists may have already violated the Establishment Clause by making Darwinian evolution its own religion.

This Article argues that a key-but-overlooked factor in the Vietnam-era breakdown of the draft system was the Supreme Court's expansion of the religious conscientious objector ("CO") exemption. It asserts that the Court understood that the CO exemption violated the Establishment Clause, but rather than strike the exemption down, the Court avoided the constitutional issue by interpreting away the religious element of CO statutes. The Article concludes that the Court's rulings caused CO exemptions to skyrocket, which in turn caused the draft system to collapse toward the end of the Vietnam War.

This document constitutes the course materials for Alan E. Johnson's October 28, 2016 Continuing Legal Education (CLE) course entitled "Separation of Religion and Government from the 1787 U.S. Constitution to the Present."

This is the second of two CLE sessions on U.S. church-state law from the seventeenth century to the present.  The first session occurred on July 13, 2016, and, as a result of a one-hour time limitation, concluded before reaching the 1787 Constitutional Convention.  The course materials for the first session are posted at https://www.academia.edu/26966462/Church-State_Law_from_Seventeenth-Century_New_England_to_the_Present_An_Overview.  The present course materials substantially expand the earlier course materials for the period 1787 to the present.

The decisions written by the Supreme Court of the United States become policy, while also answering many consequential constitutional questions. Throughout the countless cases that the court has heard across many eras, there have been some where the issues in the case are able to be separated from that of most. There have also been cases that attempt to answer questions and challenges where similar ones have appeared in other cases. The overarching theme of religion in the government is a thread that can be seen through many significant cases that the court has taken up. Decisions from the high court can have the effect of significantly changing the strength and course of different movements and debates. These include religious movements, whose practices or involvement with government can produce any number of questions that might come before the court. In Lynch v. Donnelly, the city of Pawtucket, RI erects a Christmas display in a local park that includes a nativity scene or crèche, among other items commonly associated with the holiday. In this paper, I will summarize the Christian movement associated with this case. I will then summarize the legal arguments in the case. Finally, I will examine the court's opinion and the effect of the ruling on the movement.

These are course materials for the one-hour Continuing Legal Education (CLE) presentation by Alan E. Johnson on July 13, 2016, at the Pittsburgh Office of the law firm of Marshall, Dennehey, Warner, Coleman & Goggin.  As a result of the one-hour time limitation, the actual presentation on July 13, 2016, only covered legal developments up to the 1787 US Constitution.  Part 2 of the presentation, which will be conducted on October 28, 2016, will discuss church-state constitutional developments from the time of the 1787 US Constitutional Convention to the present.  Additional course materials will accompany the second part of the presentation.

This volume contains the following works authored by Roger Williams:  Christenings make not Christians (1645 or 1646), Experiments of Spiritual Life & Health (1652), The Fourth Paper, Presented by Major Butler (1652), The Hireling Ministry None of Christs (1652), and The Examiner defended (1652).

This paper looks at the role of the Establishment Clause as it pertains to USG funded counter radicalization programs. The administration, as highlighted in the QDDR, calls for partnerships with “emerging centers of regional or global influence, and non-state actors from NGOs and corporate partners to religious groups and individuals”.  Despite this, though, the government lacks a clear policy on how to engage with religious communities and groups, as evinced in its inconsistent application of the Establishment Clause in various programs across the globe. This paper looks at these inconsistencies and offers alternative interpretation frameworks put forth by legal scholars.

For centuries, a shorthand essay of Roger Williams (ca. 1603-83), written sometime during the last few years of his life, was left undeciphered and was accordingly unavailable to historians.  In a remarkable scholarly achievement, a team of professors and students recently decoded most of this essay and provided appropriate commentary and related materials.

The article presents – based on the study of the U.S. case law – the issue of the legality of Ten Commandments displays on government property. Federal and state courts do not agree on the constitutionality of Decalogue displays in a public space. The given case law is characterized by incoherence, casuistry and nuance. The issuing of divergent decisions by the courts in analogous cases is primarily a consequence of the lack of consensus in the judicature regarding the understanding of the constitutional principle of the separation of church and state. The author shares the stand of these American courts, which, while assessing the consistency of Ten Commandments displays
on public property with the requirement of religious neutrality of public authorities, take into account the fact that the Decalogue has not only a religious dimension but also a historical and cultural ones. Since the Ten Commandments played an important role in shaping the American legal and social order, its contemporary presentation in public space does not necessarily serve confessional or proselytic purposes, but constitutionally accepted educational goals. It is crucial in the judicial operationalization of the Establishment Clause to make a distinction between the permissible “recognition” of the religion’s significance in the lives of Americans and in the history of the Nation and the State on the one hand and the unconstitutional “advancement” of religion by the pubic authorities on the other hand.

A broadly shared methodological commitment to originalism in church-state matters has not produced much agreement among Supreme Court justices. An underappreciated reason why is that, while the Founders agreed about the existence and importance of a natural right to religious freedom, they disagreed over how to separate church from state. The aim of this chapter is to explain the Founders’ shared and competing understandings of religious freedom. Part I explains the Founders’ common understanding of the existence of a natural right to religious liberty. Part II considers the Founders’ disagreement over how that natural right to religious liberty ought to limit the scope and exercise of governmental power in church-state matters. By better understanding how and why the Founders agreed and disagreed about religious liberty, it is hoped that Americans today might more accurately and thoughtfully deliberate how best to protect our “first freedom.”

It is well known that the ‘free exercise’ and ‘establishment’ clauses in Section 116 of the Australian Constitution have been interpreted narrowly by the High Court of Australia.  However, there has been limited examination of theoretical assumptions or perspectives which may have consciously or unconsciously informed this interpretation.  This article argues the High Court has adopted liberal assumptions about the nature of religion and its relationship to the state in the Section 116 cases.  These liberal assumptions are a sharp distinction between ‘private’ religious and ‘public’ non-religious exercise, that religious freedom is subject to state determinations of what is required for neutrality between religions, and religious freedom is subject to state determinations of what is required for social order.  The article proceeds to consider the implications of these assumptions for Section 116 cases in terms of a narrowing of religious freedom and a broadening of state power, and suggests awareness of these issues may produce a more nuanced approach to Section 116 in the future.

This paper will illustrate how U.S. law on the “Establishment Clause” of the First Amendment to the United States Constitution is negatively influencing the religious culture and practices of Argentina. It will do so through the example of a dramatic real life situation which led to a momentous judicial decision. While drawing some conclusions from the affair, the paper will consider whether and how some elements of religious law can be integrated into the fabric of law in a Western society with mixed legal elements, such as Argentina, and whether and how comparative constitutional law can in effect thwart that integration.

To download, go to https://ssrn.com/abstract=3043304

This Article dissects two developments in widely separate areas of American constitutional law – the “reasonable expectation of privacy” test for the Fourth Amendment’s Search and Seizure Clause and the “endorsement” test for the First Amendment’s Establishment Clause.  These two stories might seem worlds apart, and they have not previously been systematically examined together.  Nevertheless, the Article argues that they have in common at least three important symptoms of our legal culture’s deep malaise.  These three phenomena occur in other contexts too.  But they appear with special clarity and a stark cumulative force in the two stories on which the Article focuses.

The most evident of these three common threads is a shallow and distracting focus on psychological reactions and affects.  Another is the doomed effort apparent in both contexts to ground legal values in empirical facts, an effort found in other current legal strategies such as “original public meaning originalism.”  The third is the failure to see that legal techniques that can make sense to solve hard cases at the edges of doctrinal categories must sometimes be distinct from the deeper principles that motivate and shape the categories themselves.

The Article examines the doctrinal development of both the “reasonable expectation of privacy” and “endorsement” tests.  It also contemplates their possible fates as each comes under increasing practical and conceptual pressure.  At the end of the day, the Article is in some respects a plea for at least a certain sort of legal formalism – not the illusory axiomatic, determinate, legal formalism, that was the straw man of legal realists, but a more modest yet self-confident formalism that understands law’s distinctive role, in concert with other normative languages, in both framing and shaping the world in which we live.