For about 150 years, the First Amendment applied only to the federal government; states were free to discriminate between religions if they wished. Following the Civil War, however, a seed was planted that would eventually change the legal landscape in a way the founding fathers never envisioned. That seed was the passage of the 14th Amendment which provided in part that “no state shall . . . deprive any person of life, liberty or property without due process of law.” In the 1947 case of Everson v. Board of Education, the Supreme Court held for the first time that the First Amendment’s guarantee of freedom from an “establishment of religion” was one of the liberties protected by the Due Process Clause of the 14th Amendment. Since 1947, states and smaller governmental entities have also been forbidden to respect an establishment of religion.
According to the Supreme Court in the Everson decision, “The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. Neither can force 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. . . . Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.'”
The Constitution itself does not mention any “wall of separation between church and state.” In my opinion, judicial activist judges have made far more of this metaphorical wall than is appropriate. Jefferson himself used the phrase only with regard to the federal government. Like his fellows of the first American generation, Jefferson believed that states could be deeply involved in religion. He proposed that the state of Virginia teach the moral principles of the Bible in its schools. The founding fathers likely would have been horrified had someone told them that within 150 years the First Amendment would apply also to the states. But they also could not have envisioned a United States populated by millions of Muslims, Hindus and Buddhists from throughout the world. It was inevitable that the First Amendment’s application would be broadened to include all levels of government. It was also inevitable that its protections would be broadened to include citizens of all religions, Christian or otherwise, as well as citizens who preferred no religion at all.
Would we want to say that American citizens of non-biblical religions are not entitled to the guarantees of the First Amendment? Does freedom of religion apply only to Christians and to Jews? Ought the State of Utah to be allowed to pass laws making Mormonism its official state religion, supporting that religion with state taxes and prohibiting its citizens from all other religious practice? Do we want Buddhist shrines in our courthouses, or Jehovah’s Witness translations of the Bible, or even statues of the Virgin Mary?
The First Amendment creates a legal tension. On the one hand, it prohibits the establishment of religion. On the other hand, it guarantees religion’s free exercise. When does the first liberty begin to encroach on the second? If I and people like myself constitute a majority, when does our free exercise of religion begin to meld into an improper establishment of religion? The Supreme Court itself has no clear answers and no bright-line distinctions. The justices on that Court do not all answer these questions the same way. A majority of the Court has given some guidelines, however, and we will look at those guidelines next. Whatever we might think of these guidelines as Christian citizens, they are the current law of the land.