Amdt1.3.2 Accommodationist and Separationist Theories of the Establishment Clause

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court’s Establishment Clause decisions embody, to varying degrees, two views of the Establishment Clause that have been described as “separationist” and “accommodationist.” 1 These two views reflect an inherent tension between the two Religion Clauses.2 The Establishment Clause prohibits the government from providing some types of support to religion, requiring some separation between church and state, while the Free Exercise Clause prohibits the government from excluding religious individuals “from receiving the benefits of public welfare legislation” because of their faith, allowing and even requiring some accommodation of religion.3

The separationist view is embodied by Thomas Jefferson’s statement that the First Amendment created “a wall of separation between church and State.” 4 Thus, in Everson v. Board of Education in 1947, the Supreme Court said that this wall “must be kept high and impregnable.” 5 It went on:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.6

The “separation” of church and state is intended not only to protect the government from religious influence, but also to protect religious exercise by preventing the government from intervening in religious affairs.7

Just five years after Everson, though, in Zorach v. Clauson, the Court confirmed that the government could sometimes accommodate private religious practices without violating Everson's wall.8 It held that “no constitutional requirement . . . makes it necessary for government to be hostile to religion.” 9 In 1971, in Lemon v. Kurtzman, the Supreme Court said that “far from being a ‘wall,’” the line separating church from state “is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship.” 10 And in a dissenting opinion in 1985, then-Associate Justice William Rehnquist argued that “[t]here is simply no historical foundation for the proposition that the Framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.” 11

See, e.g., Steven G. Gey, Reconciling the Supreme Court’s Four Establishment Clauses, 8 U. Pa. J. Const. L. 725, 725 (2006); Ira C. Lupu, The Lingering Death of Separationism, 62 Geo. Wash. L. Rev. 230, 232 (1994). back
See Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947). back
Id.; see also Amdt1.6 Relationship Between Religion Clauses and Free Speech Clause. back
See Everson, 330 U.S. at 16 (quoting Letter from Thomas Jefferson to the Danbury Baptist Ass’n (Jan. 1, 1802), (internal quotation marks omitted)). back
Id. at 18. back
Id. at 15–16. back
See, e.g., Engel v. Vitale, 370 U.S. 421, 431 (1962). back
Zorach v. Clauson, 343 U.S. 306, 314 (1952). back
Id. back
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971). back
Wallace v. Jaffree, 472 U.S. 38, 92, 106 (1985) (Rehnquist, J., dissenting). back