…no law respecting the establishment of religion…

In recent years the Supreme Court has placed the Establishment and the Free Exercise of Religion Clauses in mutual tension, but it was not so for the Framers. None of the Framers believed that a governmental connection to religion was an evil in itself. Rather, many (though not all) opposed an established church because they believed that it was a threat to the free exercise of religion. Their primary goal was to protect free exercise.

Nor did most of the Founding generation believe that government ought to be “untainted” by religion, or ought not to take an interest in furthering the people’s connection to religion. The Northwest Ordinance (1787), which the First Congress reenacted, stated: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”

There is nothing in the drafting history of the First Amendment that contradicts the understanding of the appropriate relation between government and religion. In the First Congress, the committee proposal in the House read, “no religion shall be established by law, nor shall the equal rights of conscience be infringed.”

Leaving the question of establishment to the states does not entail the absence of religious liberty. Even before the incorporation of the religion clauses and without intervention by the federal courts, religious freedom and tolerance had spread throughout the United States.

Most Framers supported religion because it increased virtue among the people, a necessary element for the maintenance of a free republic. Nonetheless, when it came time to speak upon the matter, the Supreme Court preferred to base its conception of the original understanding of the clause on its interpretation of a phrase from a letter by Thomas Jefferson to the Danbury Baptist Association of Connecticut (1802).

Jefferson’s metaphor of a “wall of separation” was interpreted by the Court as the authoritative statement of a “high and impregnable” barrier between church and state, even though this was itself an expansion beyond Jefferson’s own meaning and practice.

The modern view of the Establishment of Religion Clause began with Everson v. Board of Education of Ewing in 1947, where the Court initiated the current separationist approach to the Establishment of Religion Clause. On the way to reaching its decision, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment applied the First Amendment’s proscriptions against establishment to the states. Although there is vigorous debate as to whether the provisions of the Fourteenth Amendment “incorporate,” or replicate, the guarantees of the Bill of Rights and fastens them on the states, most commentators opine that the Establishment of Religion Clause is the least likely candidate for incorporation.

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