Original Intent: The Meaning of the Religion Clauses
By Derek H. Davis, Ph.D.
In spite of its merits, the separation of church and state is a controversial subject in America today. The controversy begins with the religion clauses of the First Amendment to the United States Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . .” The two clauses—the Establishment Clause and the Free Exercise Clause—issue two separate mandates.
The Establishment Clause was clearly intended to eliminate the possibility of an established church in the new nation; beyond that, full agreement among scholars as to the framers’ intent ceases. The Free Exercise Clause, whose original purpose is also much debated, generally was intended to preserve the right of the citizen to believe, following John Locke, “according to the dictates of his own conscience,” free from civil coercion.
Much of the contemporary debate over the framers’ intent in the wording of the religion clauses focuses on the Establishment Clause. This is because some of the key issues in American society today focus upon the degree of permissible government sponsorship, promotion, advancement, or support of religious activities, and it is accepted by all that the term “establishment” as contained in the Establishment Clause bears most directly upon these issues.
There are two basic interpretations of what the constitutional framers intended the Establishment Clause to mean, the “separationist” position and the “accommodationist” position. Accommodationists call for a greater accommodation of religion in public life than the separation position, especially in allowing governmental financial assistance to flow directly to religious institutions, be it for worship, operational expenses, or the administration of programs that advance so-called “secular” interests—charitable endeavors, social justice programs, humanitarian measures, and the like. The separationist interpretation was first advanced by Justice Hugo Black for a five-to-four majority in the 1947 landmark case of Everson v. Board of Education, where he wrote, “In the words of Jefferson, the clause against establishment of religion by laws was intended to erect ‘a wall of separation between church and State.’”
Elaborating further, the Court declared that the original purpose of the Establishment Clause was to create a significant separation of the spheres of civil authority and religious activity by forbidding all forms of government assistance for religion. That is, the clause went far beyond merely prohibiting the governmental establishment of a single church or of preferring one religious sect over another.
The separation was not to be absolute, as will be explained below, nor should it be. As Leonard Levy has stated, “The heart of this broad interpretation is that the First Amendment prohibits even government aid impartially and equitably administered to all religious groups.”
This “separationist” interpretation grows out of the views of many of the leaders in the eighteenth-century movement for religious liberty, notably Thomas Jefferson and James Madison. For example, in Jefferson’s “Bill for Establishing Religious Freedom” (1779) and Madison’s “Memorial and Remonstrance” (1785), the idea is clearly expressed that religion should be totally independent of government interference. In contrast to the separationist interpretation, the various accommodationist views generally hold that the framers intended for the Establishment Clause to prevent the governmental establishment of a single sect or denomination of religion over others.
According to this interpretation, J. M. O’Neill has said that the framers purposed to prohibit “a formal, legal union of a single church or religion with government, giving the one church or religion an exclusive position of power and favor over all other churches or denominations.” Sometimes called “nonpreferentialists,” proponents of this view permit governmental aid to religious institutions as long as it prefers no particular group or sect. Accommodationists hold that the wall of separation between church and state was not intended to create a sharp division between government and religion or to enjoin government from fostering religion in general.
The separationist—accommodationist debate also embraces the Free Exercise Clause. The separationist position is that governmental bodies, having no inherent competence in matters of religion, should restrict the free exercise rights of individuals and religious bodies only to the extent that their religious exercise will endanger the health and welfare of themselves or others, or if it violates public policy in some serious way. As a legal standard, this became the accepted view of the Supreme Court as early as 1878 in Reynolds v. United States. More recently, however, due to the views of an increasingly accommodationist Supreme Court, state and local governments have been given considerable freedom to regulate religious activity, so long as it occurs pursuant to “neutral” laws of “general applicability” not written to discriminate specifically against religious activity. In this sense, it is not religion being accommodated, as under the accommodationist interpretation of the Establishment Clause, but the majoritarian political process. This trend is troubling to separationists because it offers minority (and often unpopular) religions little protection or “separation” from legislative enactments that infringe upon their religious practices.
Classical separation understands religious liberty as the absence of government constraint upon individuals in religious matters. This emphasis upon individual freedom, the protection of each individual’s religious conscience, is the fulcrum upon which issues of church and state turn. The accommodationist position de-emphasizes individual action while giving greater attention to the communal aspects of religion.
Accommodationists emphasize that the religion clauses were never intended to deal harshly with religion and interpret them to make religious liberty a positive right, the individual and communal exercise of which is to be encouraged, if not initiated, by government. This position is significantly different from that of separationism and leads to markedly different contemporary policies and practices. In sum, accommodationists consider that the operative ideal of the early republic was a posture of support of religion by government on a nonpreferential basis. In turn, that posture seems to point toward a twenty first-century ideal of governmental accommodation to religion in ways that promote virtue among the citizens and generally secure the greater common civil good.
Classical separation holds that direct, especially financial, support of religious institutions inevitably compromises their religious mission, causes dependence upon governmental support, politicizes religion, and ultimately causes religion to lose its prophetic role and its ability to provide the moral foundations that the nation needs.
Both positions have their strengths and weaknesses. The surviving data of the founding period, especially the debates of the founding fathers in formal session, as well as the records of the states’ ratification proceedings, are regrettably inadequate in their treatment of the subject and certainly leave room for more than one interpretation. Nevertheless, upon close examination of the deliberation process engaged in by the drafters of the religion clauses, it can be demonstrated that the separationist position is indeed far more compatible with the drafters’ views and should therefore be adhered to today.
The First Congress / Emergence of the Religion Clauses
James Madison had been among those who argued that a bill of rights was unnecessary. He insisted that the national government had no power to infringe upon individual rights. He soon came to appreciate the honest fears of the delegates to the state conventions, however, who insisted upon a clear prohibition of federal infringement upon the rights of conscience as well as other individual liberties. It was largely on the basis of his assurances that he would seek to secure before the First Congress the kinds of amendments that the states wanted that most of the states were willing to ratify the Constitution.
After the Constitution was ratified, Madison, feeling “bound in honor” to secure amendments, was true to his word and offered a number of proposed amendments to the First Congress. On 8 June 1789, at the opening of the First Congress, Representative Madison proposed, among others, the following amendment: “The civil rights of none shall be abridged on account of religious belief, nor shall any national religion be established, nor shall the full and equal rights of conscience in any manner or in any respect be infringed.”
As stated earlier, most of the controversies about church-state separation in the United States revolve around the Establishment Clause. While every proposed wording of the religion clauses differentiated establishment issues from free exercise and other issues, due to space limitations only the establishment issues will be addressed here. Accommodationists claim that the word “national” in Madison’s proposal is proof that Madison intended nothing more than a prohibition against the preference of one religion over another. Robert Cord, for example, argues that Madison’s proposal supports his thesis that “the religion clauses ultimately adopted by Congress were meant to deny to Congress the constitutional authority to pass legislation providing for the formal and legal union of any single church, religion, or sect with the Federal Government…. Consequently the separation of Church and the national State envisioned by the adopters of the First Amendment would leave the matter of religious establishments or disestablishment to the wisdom of the several States. On initial consideration, Cord’s thesis seems persuasive. Yet a number of facts suggest that Madison might have opposed more than just the establishment of a national church.
Madison had led a fight in 1785 in the Virginia legislature against a bill calling for a general tax assessment for the support of not one but of all Christian religions. In his renowned “Memorial and Remonstrance,” Madison repeatedly referred to the assessment bill as an “establishment of religion.” After his retirement from the presidency, Madison in 1817 expressed his disapproval of tax-supported chaplains for Congress and the armed services as well as presidential proclamations of days of thanksgiving. Significantly, he described these as “establishments” and “the establishment of national religion.” All of this makes it difficult to know conclusively what Madison meant when he submitted his proposed amendment prohibiting the “establishment” of a “national religion.” He may have been signifying not that the federal government had no business preferring one church or religion over others but that national action on behalf of any or all churches or religions was outside the purview of permissible governmental action.
Madison’s proposed amendment was referred to a specially formed select committee, of which Madison was a member. The committee changed the wording of the amendment proposal several times but eventually settled on the following language: “No religion shall be established by law, nor shall the equal rights of conscience be infringed.”
Debate on the Select Committee’s proposed amendment opened on 15 August 1789. Peter Sylvester, a fifty-year-old lawyer from New York, opened the debate and focused on the establishment question. He feared that the clause “might be thought to have a tendency to abolish religion altogether.” Sylvester apparently thought that the proposed amendment might be construed by the American people as a total congressional ban on religion. If that was the essence of Sylvester’s thinking, he was less concerned with the issue of governmental aid to religion than the larger issue of the very survival of religion. In that case, he would merely be asking for a rephrasing of the amendment; his comment would say nothing about his views on establishment. His concerns, however, led to a rephrasing of the amendment.
The third proposal was submitted by Samuel Livermore of New Hampshire on August 15: “Congress shall make no laws touching religion, or infringing the rights of conscience.” This proposal has a decidedly separationist flavor and seems to be a reaction to possible nonpreferentialist notions among certain other committee members. Congress’s inability to pass any laws “touching” religion would arguably foreclose any kind of law that would benefit or sponsor religious projects or institutions. But the language was apparently unsatisfactory, thus the House committee entertained additional proposals.
Five days later Fisher Ames from Massachusetts submitted this language for consideration: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.” This language is softer, perhaps intending to remove the concern that Livermore’s proposal might be far too restrictive. But does the language disallow anything more than the establishment of a national church? It depends on the meaning of “establishment.” Ames likely was giving “establishment” a broad meaning in which any form of government aid to religion would be an establishment; otherwise he would have used decidedly better wording that would clearly permit nondiscriminatory aid to religion.
The next day, 21 August, the committee made some stylistic changes, producing this draft: “Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” Like the previous draft, there is contemplated here far more than the prohibition of a national church or the preference of some religions over others; thus the separationist perspective seems to be in view. The only account of the debate, in the Annals of Congress, provides only a paraphrase of the proceedings and does not help resolve the questions about the members’ meaning. Without debate, this fifth proposal was adopted by the necessary two-thirds of the House. The amendment was submitted to the Senate.
The Senate began deliberations on the House amendment on September 3 and continued through September 9. The Ames amendment must have provoked controversy in the Senate, since several alternative versions were suggested in its place. In considering the House’s draft, a Senate motion was first made to strike out “religion, or prohibiting the free exercise thereof,” and to insert, “one religious sect or society in preference to others.” The motion was rejected, and then passed. Thus, the first new Senate version read: “Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.” The establishment clause in this proposal appears to revert to a nonpreferentialist perspective, since only a prohibition against favoring some religions over others is contemplated.
After further debate, the Senate rejected this alternative wording: “Congress shall not make any law, infringing the rights of conscience, or establishing any Religious Sect or Society.” This language is similar to the sixth proposal, and the establishment language reflects at most a stylistic alteration, presumably on the basis that the words “in preference to others” were deemed unnecessary. But clearly, nonpreferentialism is the aim.
The Senate then considered but rejected language providing: “Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting free exercise thereof, nor shall the rights of conscience be infringed.” This is essentially a return to the language of the sixth proposal, except that the prohibition is now against establishing “any particular denomination of religion” as opposed to a “religious sect or society.” The proposal nevertheless still favors a nonpreferentialist perspective.
Considerable disagreement exists among church-state scholars as to the meaning that should be given these Senate language. At best we can say that it reflects considerable disagreements over what the religion clauses were intended to achieve. The final wording reflects a compromise, but clearly reverts to the more separationist language that dominated the House proposals. One thing is clear: the no preference understanding of the Establishment Clause was rejected. We may not be able to state precisely what the Establishment Clause means, but the committees had language, no less than five times (proposals 1, 6, 7, 8, and 10), that favored a nonpreferentialist (and/or accommodationist) perspective, but five times it was rejected. Whatever the merits of the no preference perspective, it is enlightening to know that it was so closely considered, yet so frequently rejected.
The religion clauses, with other amendments, were submitted to the thirteen state legislatures for ratification. Much to the disappointment of students of American constitutional law, there are no surviving records of the states’ debates. By June of 1790, the necessary nine states had approved of ten amendments—the Constitution’s Bill of Rights.
The Search for Meaning
It is unfortunate that in all of the developmental process, the framers left no record of any attempts to define terms so as to enable succeeding generations to determine with precision the intended meaning of the religion clauses. This problem is exacerbated by the paucity of records of the debates in Congress and the state ratifying conventions. One writer has said that the “men who wrote the Constitution wrote under great duress and heightened pressure; they developed the document in a politically charged environment and were subject to compromise and negotiation....” Regarding the debates of the First Congress, Leonard Levy adds: “Not even Madison himself, dutifully carrying out his pledge to secure amendments, seems to have troubled to do more than was necessary to get something adopted in order to satisfy popular clamor and deflate anti-federalist charges.” Despite the absence of perspicuous meanings in the religion clauses, it is submitted here that what we know of the process indicates at least a leaning toward a broad, separationist interpretation of the Establishment Clause rather than a narrow, nonpreferentialist perspective. That the drafters of the religion clauses had five opportunities to endorse nonpreferentialist language, but five times rejected it, is instructive to say the least.
Derek H. Davis is Dean of the College of Humanities, and Dean of the Graduate School at the University of Mary Hardin-Baylor. A complete bibliography of source quotations for this article are available upon request.