The Establishment Clause:
A Question of Jurisdiction

by Herbert W. Titus

Second:   Education, Welfare and Religious Tests
Third:   Establishment Clause Public Policy
Last:   The Religion Clauses: An Epilogue


“The realm of religion,” Justice John Paul Stevens wrote in Wolman v. Walter, 433 U.S. 229, 264 (1977), “is where knowledge leaves off, and where faith begins ….”

With this definition of religion, Justice Stevens confidently concluded that all tax subsidies to any school with a “religious mission” was an unconstitutional establishment of religion, in violation of the First and Fourteenth Amendments of the U.S. Constitution.

While Justice Stevens acknowledged that he had lifted his definition of religion from Clarence Darrow’s argument in the Scopes evolution case in Dayton, Tennessee in 1924, he did not explain why a 20th century, atheist defense lawyer’s definition should control the meaning of a word contained in an 18th century document.

Nor did Justice Stevens pause to consider whether Darrow’s evolutionary epistemology, the product of the Darwinian revolution of the mid-nineteenth century, should be superimposed upon a document written in a day when intelligent men took the Bible, including the book of Genesis, as the fountainhead of knowledge for the establishment of a nation. W. Davis, Eastern & Western History, Thought and Culture 1600-1815 241-68 (1993).

For Justice Stevens it was simply axiomatic that the language of the U.S. Constitution should be understood not as it was written, but as it might have been written by men “enlightened” by the most recent developments in science.

Religion and No Establishment

While no other justice joined Justice Stevens in his explicit endorsement of Darrow’s dichotomy between knowledge and faith, the High Court has continuously ruled as if Darrow was right. States may use tax money to support “science,” but not “religion,” defining the latter category as any teaching based upon the Bible as revelation from God. Cf. Abington School Dist. v. Schempp, 374 U.S. 203, 223-25 (1963).

Attempts to avoid this constitutional distinction between “science” and “religion” have led Christians to attempt to introduce the Genesis account of the origin of man and the universe as “creation science” and Hindu gurus to claim that transcendental meditation is the “science of creative intelligence.”

But the Courts have pierced this scientific veil, uncovering the “true” religious purpose and nature of such efforts, and have held the teaching of such viewpoints in the public schools to be an unconstitutional establishment of religion. Edwards v. Aguillard, 482 U.S. 578 (1987); Malnak v. Yogi, 592 F. 2d 197 (3d Cir 1979).

Given such rulings it comes as no surprise that prayer is necessarily religious in purpose and effect, whereas the teaching of any subject based upon the scientific method is always assumed to be secular in purpose and effect. The former activities are banned as unconstitutional, whereas the latter are not only permitted, but promoted. L. Tribe, American Constitutional Law 1169, 1208-09 (2d ed 1988).

Moreover, legislation may no longer be justified solely on the basis that it conforms with religious norms, but it must have an empirical foundation, lest it too be religious in purpose and effect and, therefore, unconstitutional. Id. at 1205.

Religion and Free Exercise

The Court has not, however, employed this secular/religious dichotomy as their working definition of religion in cases implicating the Free Exercise Clause. In Seeger v. U.S., 380 U.S. 163 (1965), Justice Tom C. Clark concluded for a unanimous Court that “religious belief’ included the faith of an agnostic so long as he held to beliefs that “occupy the same place as the belief in a traditional deity holds m the lives” of a traditional believer in God.

The borrowed Court this definition of religion from Paul Tillich, a 20th century theologian. Tillich claimed that any matter deemed of “ultimate concern” by any person was that person’s religious faith, even if it was not rooted in a belief in any notion of God or immanence as such. P. Tillich, The Shakings of Foundations 57 (1948).

Five years later, the Court found that this “ultimate concern” test was met even by a person who explicitly denied that his belief was “religious” or that he believed in a Supreme Being. It was enough that the person held a principled, rather than an expedient, objection to obeying a law. Welsh v. U.S., 398 U.S. 333 (1970).

This subjective approach to defining religion has come to dominate the Court’s application of the Free Exercise Clause. In cases like Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1973), the Court has developed a set of inquiries designed to insure that a person’s objection to a particular civil duty is rooted in norms that transcend expedience.

Two Definitions or Only One

Can the Court justify defining religion one way for Establishment Clause cases, but another way for Free Exercise challenges? In his first edition of American Constitutional Law, Harvard professor Laurence Tribe attempted just that, only to abandon the effort as “dubious” in light of the constitutional text. L. Tribe, American Constitutional Law 1186 (2d ed. 1988).

But the dual definitional approach to the meaning of religion in the First Amendment is not just doubtful, it is impermissible. The text reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .…” (Emphasis added.)

As Justice Wiley B. Rutledge wrote in Everson v. Board of Education, 330 U.S. 1, 32 (1947), the single word, “religion,” “governs two prohibitions and governs them alike. It does not have two meanings, one narrow to forbid an establishment’ and another, much broader, for securing the free exercise thereof.’ Thereof’ brings down religion’ with its entire and exact content, no more and no less, from the first into the second guaranty ….”

Not only does the text demand one definition of religion, so do the rules of logic. If a belief may qualify as “religion” for Free Exercise purposes, even if rooted in scientific principle, as the Court implied in Welsh, then why should not belief in evolutionary science not also qualify as “religion” for Establishment purposes. If the Court followed elementary rules of logic, then it should forbid the teaching of science in the public schools by anyone who embraces it as true, or by anyone who claims the scientific method to be the key to all truth.

The Court, however, has avoided this logical dilemma by finessing the question, treating science as self-evidently “secular” and the Bible as self-evidently “religious.” Tribe has defended the Court’s habit of not defining religion in Establishment Clause cases on the ground that it gives the Court leeway to change its rulings depending upon what popular opinion considers “religiously significant.” Because people’s views change over time, the Court will never find itself bound by any precedent, having never adopted a definitive meaning of the term. L. Tribe, American Constitutional Law, supra, at 1187.

The Original Definition

But America’s founders had a very definite meaning in mind when they placed the word, religion, in the First Amendment. As Justice Hugo L. Black wrote for the majority in Everson v. Board of Education, 330 U.S. 1 (1947), the First Amendment religion clauses were derived specifically from the constitutional and statutory policy of one of the original thirteen states, the Commonwealth of Virginia.

Justice Black and the Court were right. Only Virginia had adopted the twin principles of free exercise and no establishment of religion. All of the other states had endorsed the policies of toleration, instead of free exercise, and of no preference, instead of no establishment. See Titus, “No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion,” 22 Cumberland L. Rev. 505 (1992).

But Justice Black ignored that Virginia had also explicitly defined religion in Article I, Section 16 of its 1776 Constitution. That Section stated that religion was “the duty that we owe to our Creator” which can only be discharged “by reason and conviction, not by force or violence.” Sources of Our Liberties 312 (Perry, ed. 1978). Only after defining religion objectively, that is, in terms of the nature of the duty owed to the Creator, could Virginia’s founding statesmen have guaranteed absolute security for the free exercise of religion.

The other state constitutions afforded absolute protection for “religious worship” [e.g., Section 2, Delaware Declaration of Rights (Sept. 11, 1776) in Sources of Our Liberties, supra, at 338], or for “religious profession of sentiments” [e.g., Article II, Massachusetts Declaration of Rights in Sources of our Liberties, supra, at 374], but not for religion, per se.

That religion included more than worship, and even more then profession of religious faith, was made abundantly clear in the fight that Thomas Jefferson and James Madison waged to achieve their goal to disestablish religion in Virginia. Titus, “No Taxation or Subsidization,” supra, 22 Cumberland L. Rev. at 506-08, 510-11. In the preamble of his 1786 Bill for Establishing Religious Freedom, Jefferson wrote that all opinions, including religious ones, were outside the jurisdiction of the State. Because Almighty God had created the mind free, he concluded that the State had no power “to compel a man to furnish contributions of money for the propagation of opinions,” religious or otherwise.

In support of this position, Madison wrote in his famous Memorial and Remonstrance that a man’s opinions were within the realm of religion, i.e., subject only to the Great Governor of the universe. Because all opinions, not just religious ones, were subject only to reason and conviction, they were immune from civil power. That immunity, in turn, had been secured by Article I, Section 16 of the Virginia Constitution.

The word, religion, then is a jurisdictional term designed to separate from civil power all duties owed exclusively to the Creator. Those duties, by definition, are the ones subject only to reason and conviction which, according to the revelation of the Creator, include “all truth,” not just “religious” truth (John 16:13). As for other duties encompassed by religion, they too are to be determined by the revealed law of the Creator, not by any individual’s profession of faith, or by popular perception, as modern Courts and commentators have claimed.


The First Amendment protects freedom of religion in two distinct ways. First, it prohibits Congress from passing any law “respecting an establishment of religion.” Second, it proscribes any Congressional action “prohibiting the free exercise” of religion.

Since 1947, the United States Supreme Court has applied this language in such a way as to prohibit state and local governments from doing what Congress is prohibiting from doing. Everson v. Board of Education, 330 U.S. 1 (1947).

This ruling rested upon the assumption that the Fourteenth Amendment “incorporates” the freedom of religion clauses of the First Amendment and applies them to the States. See Duncan v. Louisiana, 391 U.S. 145, 148 (1968). [For a critique of the incorporation doctrine and for an alternative justification for applying the religion clauses to the state and local governments, see Titus, “The Bill of Rights: Its Text, Structure and Scope,” (1994).]

Since 1971, the United States Supreme Court has generally applied a 3-part test to determine if a statute or other civil government action violates the Establishment Clause of the First Amendment. First, the statute or action must have a secular purpose. Second, the statute or action must not have as its primary or principal effect the advancement or inhibition of religion. Third, the statute or action must not foster an excessive government entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602 (1971).

While the Court has never provided working definitions of “secular” and “religion,” it has assumed that secular means empirically verifiable truth, whereas religion means unprovable faith beliefs. This dichotomy between the profane and the sacred is presumed to be self-evident and incontestible, and hence, in need of no explanation or discussion. See, e.g., Tribe, American Constitutional Law 1186-88 (2d ed. 1988).

The Court has, therefore, consistently struck down prayer and Bible reading in tax-supported public schools, for having both a religious purpose and primary effect of advancing that purpose. Abington School District v. Schempp, 374 U.S. 203 (1963); Wallace v. Jaffree, 472 U.S. 38 (1985).

It has also found that the posting of the Ten Commandments on the walls of a public school classroom has no secular purpose and, consequently, has the primary effect of advancing religion. Stone v. Graham, 449 U.S. 39 (1980). Finally, it has ruled that the teaching of creation science in the public schools has no secular purpose. Edwards v. Aguillard, 482 U.S. 578 (1987).

Thus, all of these activities are unconstitutional establishments of religion, having violated the first or second prong of the 3-part test. Under the second and third prongs, the Court has invalidated a variety of government programs supporting religious schools, including tax subsidies for the teaching of secular subjects [e.g., Meek v. Pittenger, 421 U.S. 349 (1975); and Wolman v. Walter, 433 U.S. 229 (1977)] and tax credits and deductions for parents who send their children to religious schools. e.g., Committee for Public Education v. Nyquist, 413 U.S. 756 (1973); and Sloan v. Lemon, 413 U.S. 825 (1973).

The Court has reasoned that the teaching of secular subjects in a religious setting so infects that teaching that the primary effect necessarily advances the religious objectives of the schools. It has further concluded that no meaningful safeguards can be devised to moderate that effect without excessively entangling civil government in the religious affairs of those schools. See generally Nowak, Rotunda and Young, Constitutional Law 1038-4 7 (3d ed. 1986). Thus, religious schools are denied any significant access to tax revenues on the ground that such tax subsidies constitute an unconstitutional establishment of religion.

Outside education, the Court has applied the 3-part test less rigorously. For example, it has generally found that creche scenes on public property are secular in purpose, thus satisfying the test’s first prong. Such scenes are perceived by the Court to be an integral part of a largely commercialized holiday season that has lost its religious significance, in much the same way that the religious meaning of the logo, “In God We Trust,” on a dollar bill has dissipated. Lynch v. Donnelly, 465 U.S. 668, 671, 680, 676, 692-93 (1984).

As for the test’s second prong, the Court has scrutinized each situation to determine whether the public display of the creche “endorses” its patently religious message, or merely “accommodates” those who still hold to the religious meaning of Christmas. Compare, e.g., County of Allegheny v. A.C.L.U., 492 U.S. 573, 595-602 (1989) with Lynch v. Donnelly, supra, at 681-82, 693-94 .

In only one case in the past 23 years has a Court majority totally disregarded the 3-part test. In Marsh v. Chambers, 463 U.S. 783 (1983), the Court upheld the legislative practice of employing and paying chaplains, even though one of their primary tasks was to pray at the opening of legislative sessions.

Former Justice William J. Brennan registered a vigorous protest. Even a law student , Brennan asserted, could tell that the employment of a chaplain to open a legislative session with prayer served no secular purpose: To invoke Divine guidance on a public body entrusted with making the laws’ … is nothing but a religious act. Id. at 797, 800.

As for the primary effect of such a practice, Brennan found it “clearly religious … [for] invocations in … legislative halls explicitly link religious belief and observance to the power and prestige of the state.” Id. at 798.

Excessive entanglement was equally obvious to Justice Brennan as he noted that the legislature must choose the chaplain and oversee his religious activities, which was “precisely the sort of supervision that agencies of the government should if at all possible avoid.” Id. at 798-99.

Brennan dismissed the majority decision as a “unique exception,” allowed solely because the very same Congress that adopted the Bill of Rights also established the legislative chaplaincy that has continued even to the present day. Id. at 813-14.

To date, Brennan’s characterization of the Marsh decision has proved true. A recent effort to extend it to support state-sponsored clergy prayer at public school graduation ceremonies failed. Lee v. Weisman, 120 L. Ed 2nd 467 (1992).

In that case, however, five justices (Kennedy, Scalia, White Rehnquist, and Thomas) refused to apply the traditional 3-part test. One other (Souter) declined to join the opinion of three colleagues (Blackmun, Stevens, and O’Connor) who did.

Emerging from the Court’s four opinions are two alternative approaches that may dominate Establishment Clause cases in the future. Justice Kennedy and the four dissenters, would substitute a single test for the current tripartite one. The question for them is whether the government policy coerced any one into conformity with a religious policy. The only difference between Kennedy and the four dissenters was how to define coercion.

The dissenters concluded that there was no unconstitutional coercion in a graduation prayer, as contrasted to a classroom prayer, because no student was required by law to attend graduation, whereas he was required to attend classes. (Id. at 512-15). Justice Kennedy ruled that there was, in fact, coercion in both cases, because peer, family, and community pressure to attend the graduation ceremony was substantially equivalent to the legal sanction requiring classroom attendance. Id. at 482-87 .

The other four justices concurred with Kennedy, not because they found coercion, but because they found that choosing a clergyman to offer a graduation prayer constituted an “endorsement” of the religious views contained in the prayer. Such an endorsement violated the Establishment Clause requirement that the government remain “neutral” about religion. Id. at 493-95, 506-09.

The no coercion test was favored by five justices, in part, because it accorded with such long-standing practices as presidential Thanksgiving proclamations, calls to prayer in times of national crises, and legislative chaplaincies. Even Justice Kennedy found such practices non-coercive because they were mere encouragements directed at adults in an undisciplined community setting. Id. at 487.

The no endorsement test would place such practices in jeopardy. Justice Souter observed, however, that Thanksgiving proclamations and calls for national prayer may technically violate the Establishment Clause by endorsing religion, but not sufficiently serious for the law to take notice of them, according to the “legal aphorism de minimis non curat lex.” Id. at 508-09.

While Lee v. Weisman appears to have sounded the death knell to the 3-part test, it did not overrule it, nor did any of the opinions question the fundamental premises of that test. The dichotomy between the “secular” and the “religious” remains. And the principle of “neutrality” continues to occupy center stage.


In 1947, the U.S. Supreme Court ruled that the Establishment Clause of the First Amendment incorporated the doctrine of “separation of church and state.” Everson v. Board of Education, 330 U. S. 1 (1947). In Everson, the Court embraced for the first time the notion that the Establishment Clause required the State and the National governments to be neutral about religion.

This doctrine of religious neutrality impacted most dramatically upon public education. Two years after Everson, the Court began to erect a wall between education and religion, by banning religious education from the premises of the public schools. McCollum v. Board of Education, 333 U.S. 203 (1948). By 1987, the Court had raised this wall to ban classroom prayer and Bible reading from the public schools, to secularize the nation’s educational curriculum, and to prohibit any significant tax support for religious education in private schools. Wallace v. Jaffree, 472 U.S. 38 (1985); Edwards v. Aguillard, 482 U.S. 578 (1987); Grand Rapids School District v. Ball, 473 U.S. 373 (1985).

These and other rulings virtually eliminated religion from the formulation and implementation of state educational policy. And, if extended to other areas of public policy – such as abortion, the wall of separation threatened to eliminate religion as an effective factor in the formulation of public policy generally. See, e.g., Harris v. McRae, 448 U.S. 297 (1980).

So, in the early 1980’s, the Court’s conservative critics launched a counter-offensive. On the academic front, Professor Robert L. Cord published his critique of the wall of separation of church and state.

After a careful study of the writings and actions of Madison and Jefferson, Cord concluded that the original intent of the framers of the First Amendment’s Establishment Clause was “intended to prevent the establishment of a national church or religion, or the giving of any religious sect or denomination preferred status.” R. Cord, Separation of Church and State 15 (1982).

This “no preference” principle was picked up by Justice William Rehnquist in his dissenting opinion in Wallace v. Jaffree, supra, 472 U.S. at 91-114. With Justice Rehnquist’s elevation to the chief justiceship, there was great hope that he would lead the Court back to this original position. See R. Cord, “Church-State Separation: Restoring the No Preference’ Doctrine to the First Amendment,” reprinted in Restoring the Constitution 295-328 (H. House, ed. (1987).

The Cord/Rehnquist thesis rests, first of all, upon the initial wording of James Madison’s proposal to the First Congress which put together the Bill of Rights. That language read as follows:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. Sources of Our Liberties 422 (Perry, ed. 1972).

Even though the text of this original proposal was drastically altered, Cord and Rehnquist contended that the textual changes did not change the original intent of Madison and his colleagues.

Because no statements could be found in the legislative record explaining the change of text, both Cord and Rehnquist assumed that the textual changes were not substantive. Therefore, they rested their case for the “no preference” principle upon statements made in support of the original proposal. Cord, supra, at 3-15; Wallace v. Jaffree, supra, 472 U.S. at 92-98.

Both Cord and Rehnquist offered further support for their view by citing a number of acts of the early Congresses and of the Presidents from Washington through Madison. They attributed special significance to the national policy that appropriated tax money to support the religious education of the Indian tribes, especially because Thomas Jefferson concurred in that policy by signing various treaties containing such financial support. Cord, supra, at 17-82; Wallace v. Jaffree, supra, 472 U.S. at 100-104.

Finally, they rested their case on the commentaries of Joseph Story and Thomas Cooley, two great 19th century expositors of the constitution. Story’s view was the most compelling:

The real object of the [First] [A]mendment was … to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. 2 J. Story Commentaries on the Constitution of the United States 632 (5th ed. 1891).

Resting on all of these nontextual sources, Cord and Rehnquist concluded that the Court’s neutrality doctrine was mistaken and that the wall that the Court had erected to separate religion from public policy was in error:

It would seem from this evidence that the Establishment Clause… had acquired a well-accepted meaning: It forbade establishment of a national religion, and forbade preference among religious sects and denominations …. The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the “wall of separation” that was constitutionalized in Everson. Wallace v. Jaffree, supra, 472 at 106.

The root difficulty with the Cord/Rehnquist thesis lies with their presupposition that the textual change from Madison’s original proposal was of no substantive significance.

In his concurring opinion in Lee v. Weisman, 120 L. Ed. 2d 467, 495 (1992), Justice David Souter proves otherwise. First, he documents that Congress considered several textual versions of an establishment clause. Some of these, including Madison’s original proposal, would clearly or arguably have endorsed the “no preference” principle. But the final text was derived, not from the Madison proposal, but from one introduced by Fisher Ames of Massachusetts.

The Ames proposal read, in pertinent part, as follows: “Congress shall make no law establishing Religion.” The House adopted this language and sent it to the Senate. In doing so, it specifically rejected language that read “that no religion shall be established by law.” By rejecting the latter, “which arguably ensured only that no religion’ enjoyed an official preference over others” the House “deliberately chose instead a prohibition extending to laws establishing religion’ in general.” Id. at 497-98.

The Senate considered a number of Establishment clause texts, one of which clearly endorsed the no preference principle. Finally, it adopted the final House text, only to reject it in favor of a very narrow one prohibiting any law “establishing articles of faith or a mode of worship.” This was unacceptable to the House and it called for a joint conference committee. The House conferees prevailed upon the Senate to adopt the text that now appears in the First Amendment. Id.

“What is remarkable,” Justice Souter wrote, “is that, unlike the earliest House drafts or the final Senate proposal, the prevailing language is not limited to laws respecting an establishment of a religion,’ a national religion,’ one religious sect,’ or specific articles of faith.’ The Framers repeatedly considered and deliberately rejected such narrow language and instead extended their prohibition to state support for religion’ in general.” Id.

Souter completed his textual critique by pointing out that several state constitutions, in existence at the time that the Bill of Rights was being considered, had adopted a non-preferential policy without disestablishing religion. But the language chosen by Congress did not track those state documents. Rather, the text tracked that of Jefferson’s Virginia Statute for Religious Freedom which condemned all establishments “however non-preferentialist.” Id. at 498-99.

To go beyond the constitutional text in search of an original intent, as the Cord/Rehnquist thesis requires, is to elevate the statements of a few over the language of the constitution, itself. This is especially impermissible when the statements contradict the text which requires one to conclude “that the Framers were extraordinarily bad drafters – that they believed one thing but adopted language that said something substantially different, and that they did so after repeatedly attending to the choice of language.” Laycock, ” Nonpreferential’ Aid to Religion” 27 Wm. & Mary L. Rev. 875, 882-83 (1986).

Rejection of the no preference principle, however, does not mean that one must endorse the modem view that the Establishment Clause requires the government to be religiously neutral.


“Congress shall make no law respecting an establishment of religion ….” The introductory phrase of the First Amendment to the United States Constitution was unprecedented. Nothing like it had theretofore appeared in any English document.

Nor was the text to be found in any State Constitution at the time the Bill of Rights was written. Even the Virginia Constitution of 1776 did not contain a prohibition against the “establishment” of religion. It merely guaranteed the “free exercise” thereof. Section 16 of the Virginia Constitution in Sources of Our Liberties 312 (R. Perry, ed., 1972).

But the principle of disestablishing religion had been endorsed by statute in Virginia when, in 1786, the Virginia Assembly adopted Thomas Jefferson’s Bill for Establishing Religious Freedom.

That Bill, when coupled with James Madison’s supporting Memorial and Remonstrance Against Religious Assessments of 1785, illumines the purpose and meaning of the prohibition against an establishment of religion. Titus, “No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion,” 22 Cumberland Law Review 505, 506-07 (1991-92).

The legislative battle over the disestablishment of religion in Virginia began in the 1784-85 session of the Virginia General Assembly. A bill was introduced in the House of Delegates providing for the legal support of teachers of the Christian religion.

The bill’s proponents were persuaded to postpone taking any action until the next session; and, in the meantime, to print the bill and disseminate it for public consideration.

Madison composed the Remonstrance against the Bill for general circulation. It was so extensively signed by people of every religious denomination, that at the ensuing session of the legislature, not only was the original bill defeated, but Jefferson’s Bill for Establishing Religious Freedom was enacted into law.

Jefferson’s Bill was an unusual piece of legislation. Not only did it contain a specific prohibition against compelling anyone to support any religious ministry, but it declared that the “rights hereby asserted are of the natural rights of mankind.” The rights asserted were not written in the operative section, but in the extensive Preamble to the Bill, itself.

Jefferson’s Preamble and Madison’s Remonstrance, then, are the key sources for understanding the nature of the no establishment principle and the original meaning of the text of the Establishment Clause. Throughout both documents, the principle is singular, namely, that the civil government has no jurisdiction over matters that belong exclusively to God.

Madison put it this way. First, he drew attention to the Virginia Constitution’s definition of religion, namely, those duties owed to the Creator which by nature may only be enforced by “reason and conviction,” not by “force and violence.”

Second, Madison reminded his reader that when any man entered into a civil society he was duty-bound to reserve those duties which he owed exclusively to God from “the claims of Civil Society:”

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving allegiance to the Universal Sovereign.

Therefore, Madison concluded, “Religion is wholly exempt from … [the] cognizance [of Civil Society).” And “if religion be exempt from the authority of Society at large, still less can it be subject to that of the Legislative Body.” For the”jurisdiction” of any legislative body is derived from the authority of the people. Where the people have no jurisdiction, neither do their representatives.

Having stated the principle, Madison then applied it to the proposed legislation requiring a citizen to pay a tax to the religious teacher of the citizen’s own choice. Just because this proposal gave the taxpayer a choice did not save it from violating the God-given rights of men. If a civil government has authority to “force a citizen to contribute three pence only of his property for the support of one establishment, [it] may force him to conform to any other establishment in all cases.”

In other words, Madison saw no middle ground. Either a tax to support religion was within the jurisdiction of the civil government or it was not. The proposed policy of allowing the taxpayer to choose the religion to be supported by the tax did not save the measure, because it still forced the taxpayer to choose. That “freedom [if it] be abused,” Madison concluded, “[was] an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered.”

Jefferson echoed this conclusion in his Preamble. He maintained “that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.”

It is sinful because God, himself, created the mind free. Even the Holy Author of our religion chose not to subject the mind to “coercion” It is tyrannical, because civil rulers presume to use force to compel performance of duties that God, Himself, refused to son claimed, that they could not be the “object of civil government, nor under its jurisdiction.”

This “no jurisdiction” principle was deliberately chosen by the First Congress to limit its powers for one reason. Congress recognized that each State had formulated its own policies concerning religion.

If Congress had any jurisdiction whatsoever over religion, then Congress could displace state law under the Constitution’s Supremacy Clause. By denying to Congress all jurisdiction, States were free to adopt policies establishing one religion, plural religions, or none.

With the ratification of the Fourteenth Amendment, however, the states are no longer free to “make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” As I have argued previously, this provision grants national protection from State action abridging the privileges and immunities contained in the First, Second, and Third Amendments of the Constitution. See Titus, “The Bill of Rights: Its Text, Structure and Scope,” (1994). Thus, the Establishment Clause applies to the states.

In order to apply the no jurisdiction principle, however, one must return to the definition of religion, a topic that I have addressed above. In the next issue, I will address the topics of education and welfare, and assess current state and national educational and welfare policies against the Establishment Clause.

Second:   Education, Welfare and Religious Tests
Third:   Establishment Clause Public Policy
Last:   The Religion Clauses: An Epilogue


*     Copyright © 1994, 1995, 2021 Herbert W. Titus. This article originally published in The Forecast, Vol. 1, Nos. 13-24 and Vol. 2, Nos. 1-4 (1994-95). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.