More or Less Bunk: The Establishment Clause Answers That History Doesn't Provide

Brigham Young University Law Review, Feb 6/Feb 7, 2004 by Gey, Steven G

The jurisprudence of the First Amendment's religion clauses is one of the most history-laden of any area of constitutional law. From the beginning of the modern era in the Court's church-state jurisprudence, nearly every discussion of note regarding the meaning of the Establishment and Free Exercise Clauses has revolved around the country's religious history.

When the Supreme Court first announced that the Establishment Clause was incorporated into the Fourteenth Amendment's Due Process Clause and therefore applicable to the states, much of the Court's discussion concerned religious discrimination in the early colonies and the fight over religious establishments more than a century and a half earlier in Virginia.1 When the Court upheld the constitutionality of legislative prayers several decades later, it did so largely on the ground that Congress had itself hired a chaplain nearly two centuries earlier.2 When Justice Thomas recently argued in favor of government funding of religious schools, he relied on the "shameful pedigree" of anti-Catholic discrimination during the nineteenth century.3 Members of the Court even argue about whether the views of particular historical figures deserve recognition in debates about the Constitution's original meaning. Although the Court has long based its interpretation of the religion clauses on the views of Thomas Jefferson, for example, Chief Justice Rehnquist has argued that Jefferson's views "are less than [an] ideal source of contemporary history" of the Establishment Clause because at the time the First Amendment was written Jefferson was in France.4

The problem is not that any of these historical discussions are inaccurate or entirely irrelevant to the discussion of the meaning of the religion clauses. The problem, rather, is that these discussions are so selective and tendentiously one-sided that they contribute little to a reasonable understanding of the modern theory of the First Amendment. Consider the other side of the four historical discussions mentioned in the previous paragraph. Although in its first major examination of the Establishment Clause the Court correctly noted that James Madison and other opponents defeated Governor Patrick Henry's Bill for Religious Assessments, for example, the Court neglected to mention that other states such as Massachusetts would continue to finance religious exercises well into the next century.5 Likewise, although the first Congress indeed paid for legislative chaplains, the author of the First Amendment himself would later write that this action directly contravened the Establishment Clause.6 As for Justice Thomas's citation to antiCatholic discrimination as the impetus for resistance to government financing of religion, he failed to note the abundant evidence of nondiscriminatory opposition to such financing-including the evidence amassed during the Court's earlier foray into the history of the battle over religious assessments in Virginia.7 Finally, the illogic of Justice Rehnquist's attempt to banish from discussions of church-state relations the author of the Virginia Bill for Establishing Religious Freedom speaks for itself. Jefferson's views on the First Amendment may not be, as Chief Justice Waite once asserted, "authoritative,"8 but they clearly contribute a great deal to the interpretive matrix in which the meaning of the First Amendment must be defined.

The frequent use-and misuse-of history in current discussions of religion-clause doctrine comes to mind in reading Carl Esbeck's contribution to this conference on the church-state settlement in the early American republic.9 Professor Esbeck provides an excellent survey of the various approaches to the church-state relationship throughout the early republic and mostly avoids the historical selectiveness of many other judicial opinions and academic articles on the subject. His article provides the full flavor of the rich diversity evident in early American religious and political culture.

My main cavil regarding Professor Esbeck's account concerns a few of the lessons he attempts to draw from this history. In particular, this Comment contests two central themes of Professor Esbeck's account. First, I believe Professor Esbeck is wrong to suggest that history provides any definitive answers to the various issues raised by the Establishment Clause. As Professor Esbeck's own historical evidence indicates, the history of religion in this country is a complicated and even contradictory affair. Second, to the extent that historical evidence supports any theory of the Establishment Clause, it certainly does not support Professor Esbeck's conclusion that the Establishment Clause permits the government to derive public policies directly from religious principles and justifications. The only historical evidence that supports such an interpretation of the Establishment Clause involves instances of overt political favoritism of Protestant Christianity-the sort of historical tendency that one hopes this much more religiously diverse country has now moved beyond. After sketching the themes that can be drawn from Professor Esbeck's discussion of early American religious history, I will turn to the lessons these themes suggest for modern Establishment Clause doctrine.