Scholarly Commentary.

The explication of the religion clauses by scholars in the nineteenth century gave a restrained sense of their meaning. Story, who thought that “the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,”6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. “The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”7

“Probably,” Story also wrote, “at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment.9

Not until the Supreme Court held the religion clauses applicable to the states in the 1940s10 did it have much opportunity to interpret them. But it quickly gave them a broad construction. In Everson v. Board of Education,11 the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that “aid one religion” or “prefer one religion over another,” but also those that “aid all religions.” With respect to the Free Exercise Clause, it asserted in Wisconsin v. Yoder12 that “only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion.”

More recent decisions, however, evidence a narrower interpretation of the religion clauses. Indeed, in Employment Division, Oregon Department of Human Resources v. Smith13 the Court abandoned its earlier view and held that the Free Exercise Clause never “relieve[s] an individual of the obligation to comply with a ‘valid and neutral law of general applicability.’ ” On the Establishment Clause the Court has not wholly repudiated its previous holdings, but recent decisions have evidenced a greater sympathy for the view that the clause bars “preferential” governmental promotion of some religions but allows governmental promotion of all religion in general.14 Nonetheless, the Court remains sharply split on how to interpret both clauses.

Footnotes

6
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 1865 (1833). back
7
Id. at 1873. back
8
Id. at 1868. back
9
For a late expounding of this view, see T. COOLEY, GENERAL PRINCIPLES OF CONSTITUTIONAL LAW IN THE UNITED STATES 224–25 (3d ed. 1898). back
10
Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free Exercise Clause); Everson v. Board of Education, 330 U.S. 1 (1947) (Establishment Clause). back
11
330 U.S. 1, 15 (1947). Establishment Clause jurisprudence since, whatever its twists and turns, maintains this view. back
12
406 U.S. 205, 215 (1972). back
13
494 U.S. 872, 879 (1990). back
14
See Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); and Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The fullest critique of the Court’s broad interpretation of the Establishment Clause was given by then-Justice Rehnquist in dissent in Wallace v. Jaffree, 472 U.S. 38, 91 (1985). back