Why Do We Even Need an Establishment Clause?

[Jim_B]

I was wondering. Why did the framers of our constitution think we needed both an establishment clause ("Congress shall make no law respecting the establishment or religion…") and a free-exercise clause (of religion, of course)?

The First Amendment was originally only binding on the federal govt., I know. But even so, if freedom of religion was already guaranteed, why would we need the establishment clause? Isn’t freedom from government meddling in religious matters part of freedom of religion? Or am I thinking of something else?

:):)

[Northern_Piper]

Because free exercise does not necessarily prevent a government from favouring one religion over another, by establishing one religion and providing funding out of the public purse, special privileges to the adherents of the established religion, etc.

[boytyperanma]

@Jim_B

I was wondering. Why did the framers of our constitution think we needed both an establishment clause ("Congress shall make no law respecting the establishment or religion…") and a free-exercise clause (of religion, of course)?

The First Amendment was originally only binding on the federal govt., I know. But even so, if freedom of religion was already guaranteed, why would we need the establishment clause? Isn’t freedom from government meddling in religious matters part of freedom of religion? Or am I thinking of something else?

:):)

Politics. The founding fathers weren’t a hive mind and didn’t agree on everything. Having both satisfied different people and got them to give yea votes.

[Pjen]

Politics and paranoia in the eighteenth century applied to the fractious treatment of religion both back in Europe and the American experience of the previous century and a half.

I generally admire the US Constitution but occasionally it is a prisoner to its somewhat out of era concerns. The small problem of slavery was (mostly) sorted by various amendments, but the features such as establishment and right to bear arms are seated in eighteenth century concerns rather than modern ones.

The European alternatives simply call for freedom of religion and its expression without necessarily banning state religion. The only such case of anything approaching an establishment clause that I can think of is France whose revolution followed the course of yours.

[UDS]

It wasn’t uncommon at the time for a country to have (a) an established church, plus (b) laws guaranteeing “toleration”; the right to form and participate in other churches. If the Bill of Rights had simply included a “free exercise” clause, that might have been understood to guarantee toleration, without necessarily prohibiting establishment.

[Monty]

@Pjen

I generally admire the US Constitution but occasionally it is a prisoner to its somewhat out of era concerns. The small problem of slavery was (mostly) sorted by various amendments, but the features such as establishment and right to bear arms are seated in eighteenth century concerns rather than modern ones.

Do you think that having government ram a particular religious idea down the throats of the people in the US is out of date? There are more than a few Sikhs, Hindus, Buddhists, atheists, and especially Muslims in the United States today that would likely beg to differ.

[Tom_Tildrum]

From what I have read, there is considerable historical evidence that the intended purpose of the Establishment Clause was to prevent the federal government from establishing a national church that would supplant the established state churches that existed at the time.

[John_Mace]

@UDS

It wasn’t uncommon at the time for a country to have (a) an established church, plus (b) laws guaranteeing “toleration”; the right to form and participate in other churches. If the Bill of Rights had simply included a “free exercise” clause, that might have been understood to guarantee toleration, without necessarily prohibiting establishment.

That was true in the US at the state level for several decades after The Establishment Clause was put in the US Constitution. I’ve quoted this many times before, but this was in the original Massachusetts constitution:

Article III. [As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion and morality; and as these cannot be generally diffused through a community, but by the institution of the public worship of God, and of public instructions in piety, religion and morality: Therefore, to promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public Protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subjects an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.

Provided, notwithstanding, that the several towns, parishes, precincts, and other bodies politic, or religious societies, shall, at all times, have the exclusive right of electing their public teachers, and of contracting with them for their support and maintenance.

And all moneys paid by the subject to the support of public worship, and of the public teachers aforesaid, shall, if he require it, be uniformly applied to the support of the public teacher or teachers of his own religious sect or denomination, provided there be any on whose instructions he attends; otherwise it may be paid towards the support of the teacher or teachers of the parish or precinct in which the said moneys are raised.

Any every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law: and no subordination of any one sect or denomination to another shall ever be established by law.] [Art. XI of the Amendments substituted for this].

[Pjen]

@Monty

Do you think that having government ram a particular religious idea down the throats of the people in the US is out of date? There are more than a few Sikhs, Hindus, Buddhists, atheists, and especially Muslims in the United States today that would likely beg to differ.

I live in the UK where we have an ‘established religion’. We also have complete religious freedom and although the established religion is Christian, there is a considerably lower percentage of Christians in the country than in the USA.

Every religion ia not only tolerated but also heavily protected as belief and practice.

The Thousands and Millions of Sikhs, Hindus, Buddhists, atheists, and Muslims here do not give a toss about the established religion.

It is muchj the same as any belief system- so long as other belief systems are protected, there is no reason to worry about establishment.

[Skald_the_Rhymer]

@Monty

Do you think that having government ram a particular religious idea down the throats of the people in the US is out of date? There are more than a few Sikhs, Hindus, Buddhists, atheists, and especially Muslims in the United States today that would likely beg to differ.

Hey, don’t forget the atheists!

Wait, you didn’t forget the atheists. Never mind.

[UDS]

@John_Mace

That was true in the US at the state level for several decades after The Establishment Clause was put in the US Constitution. I’ve quoted this many times before, but this was in the original Massachusetts constitution:

Well, it’s a guess on my part, but would it be a correct guess to think that maybe this was because, at the time, the establishment clause was understood to prevent Congress, and therefore the Union, from establishing a church, but it didn’t explicitly mention the states, and therefore they were free to establish churches unless prevented by their own constitutions?

[PhillyGuy]

@UDS

Well, it’s a guess on my part, but would it be a correct guess to think that maybe this was because, at the time, the establishment clause was understood to prevent Congress, and therefore the Union, from establishing a church, but it didn’t explicitly mention the states, and therefore they were free to establish churches unless prevented by their own constitutions?

Taken literally, the first amendment forbids Congress from passing legislation respecting an establishment of religion. A law forbidding an establishment of religion would be an example of that.

In Connecticut, Jews could not vote until 1818 (or establish synagogues until several decades later) because of the dominance of the Congregational church.

[Monty]

@Pjen

I live in the UK where we have an ‘established religion’. We also have complete religious freedom and although the established religion is Christian, there is a considerably lower percentage of Christians in the country than in the USA.

Every religion ia not only tolerated but also heavily protected as belief and practice.

The Thousands and Millions of Sikhs, Hindus, Buddhists, atheists, and Muslims here do not give a toss about the established religion.

It is muchj the same as any belief system- so long as other belief systems are protected, there is no reason to worry about establishment.

At the risk of being a MOTO, the USA is not the UK. Furthermore, there were times in the UK when attempting to practice a faith other than that of the established church was not exactly conducive to one’s health and welfare.

MOTO=Master Of The Obvious

[RickJay]

It is important to note that the world of 1789 had a very different perspective on this than the world of 2015.

In today’s western world there really isn’t a lot of penetration of religion into the civic sphere, and what there is is not of enormous significance. A Pjen points out above, the UK has an official religion and it doesn’t really matter. Canada’s Constitution specifically cites “the supremacy of God” as a founding principle and it has absolutely zero legal impact. The USA is arguably the most religious of all industrialized countries, and is one of the few that prohibits state religion, so really the legalities don’t matter much anymore.

To people in 1789, though, the issue of religion was a way bigger deal, and wars over religion were still, to them, fairly recent history. The Thirty Years’ War - the WWII of its era - was history to them as fresh and important as the World Wars were to us (I know it was longer before, but time was slower then, if you know what I mean.) Religion remained a significant political issue and was an active way for governments to interfere in people’s lives. To the people who wrote the Constitution of the United States, the idea that a state religion could be used to subvert their other intentions for democracy and the apparatus of state was a very real, present idea.

[Freddy_the_Pig]

I don’t understand the OP’s question at all. Of course free exercise and non-establishment are two different things. There are countries that have one but not the other, there are countries that have both, and there are countries that have neither. This was as true in 1789 as it is today.

[John_Mace]

There are certainly people who argue that posting The Ten Commandments in courthouses creates a hostile environment for non-Jews and non-Christians. The Establishment Clause is what keeps them (the 10 Cs) out (in most cases). Ditto for prayer in school, crucifixes in the town square, etc. The fact that the US is a more religious country than most Western European countries is a very good reason to keep that clause in place. The only flaw I find in it is that it isn’t strong enough.

[UltraVires]

@John_Mace

There are certainly people who argue that posting The Ten Commandments in courthouses creates a hostile environment for non-Jews and non-Christians. The Establishment Clause is what keeps them (the 10 Cs) out (in most cases). Ditto for prayer in school, crucifixes in the town square, etc. The fact that the US is a more religious country than most Western European countries is a very good reason to keep that clause in place. The only flaw I find in it is that it isn’t strong enough.

How does posting the 10 Cs amount to an establishment of religion? If Looneyville, WV displays the 10 Cs on the courthouse square, what official religion has been established? Catholicism? Christianity in general? Judaism?

What benefits flow to these religions from their new state designation as the official religion of Looneyville? (again based solely on the display of the 10 Cs)

My point is that the current Establishment Clause precedent is a bastardized form of judicial history akin to children whispering to each other and the last child recounting something completely different from the first. I don’t believe the Constitution supports such a harsh “no religion in public life” policy by the plain text of the First Amendment.

[John_Mace]

@jtgain

How does posting the 10 Cs amount to an establishment of religion? If Looneyville, WV displays the 10 Cs on the courthouse square, what official religion has been established? Catholicism? Christianity in general? Judaism?

What benefits flow to these religions from their new state designation as the official religion of Looneyville? (again based solely on the display of the 10 Cs)

My point is that the current Establishment Clause precedent is a bastardized form of judicial history akin to children whispering to each other and the last child recounting something completely different from the first. I don’t believe the Constitution supports such a harsh “no religion in public life” policy by the plain text of the First Amendment.

I agree, but that’s the way things are now. And that’s why I said I wish it were stronger-- I would like see all vestiges of religion removed from the functioning of government. I’d rather not have to torture the EC to get what I want.

[UltraVires]

@John_Mace

I agree, but that’s the way things are now. And that’s why I said I wish it were stronger-- I would like see all vestiges of religion removed from the functioning of government. I’d rather not have to torture the EC to get what I want.

That’s fair, and as usual, I appreciate your intellectual honesty and candor. But I want to talk about it in a more practical matter. Take Looneyville. We know that the majority of people in the Looneyville government are Christians and want to display the 10Cs on that basis.

So they display them and as an atheist you are some combination of offended or pressured to conform to social norms. You don’t like that a religious symbol is displayed which contradicts your own opinion on religious thought.

What pressures do you face? Do you feel the need to join a church so as not to offend the government? Pretend to bow your head at opening prayers held at non-governmental functions? Hide your atheism?

Even if the display is removed, aren’t you still under the same social pressures? The people that wanted to display them are still in elected office. How is your situation (the hypothetical you) better because this largely ceremonial display is now removed?

What is your end goal? Can we ever remove the supposed pressures that you contend exist? What would that entail?

[Trinopus]

@jtgain

How does posting the 10 Cs amount to an establishment of religion? If Looneyville, WV displays the 10 Cs on the courthouse square, what official religion has been established? Catholicism? Christianity in general? Judaism? . . .

In the U.S., it leans toward Christianity. Alabama’s Justice Moore explicitly supports Christianity and that was his reason for his posting.

Also note that several of the ten commandments are specifically religious in nature; they aren’t all universally acceptable principles such as “Don’t murder” or “Don’t perjure.”

The fact that more than one denomination revere this text doesn’t make it a secular text.