Replies

The First Amendment, ratified in 1791, applied by its terms only to the federal government - "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ... ."

State constitutions

Before 1940, most legal issues respecting religion were left to the states to resolve, each in accordance with its own state constitution. By 1833, every state constitution guaranteed its citizens basic liberty of conscience, free exercise of religion, and freedom of religious worship and association. Every state also removed the most glaring vestiges of early religious establishments, notably the mandatory payment of tithes and compulsory participation in religious services. Most states accommodated citizens with religious scruples against serving in the military or swearing religious oaths. Most states also granted peaceable religious communities the right to have corporate charters and properties and to maintain their own religious schools, marriage ceremonies, charities, hospitals and cemeteries.

These basic guarantees of private religious freedom, however, did not prevent the states from patronizing a general form of public religion, and ostracizing those private parties who objected. Before 1940, only one state constitution - ironically, the Constitution of Utah (1896) - had a provision mandating "no union of Church and State." For much of the 19th century, state officials routinely acknowledged and supported common (usually Christian) beliefs and practices. "In God We Trust" and similar confessions appeared on currency, stamps, state seals and government stationery. The Ten Commandments and other Bible verses were inscribed on the walls of many courthouses, public schools and other public buildings. Crucifixes and other Christian symbols were erected in some state parks and on statehouse grounds. Flags flew at half staff on Good Friday. Easter, Christmas and other Christian holy days were state holidays. Sundays were official days of rest. Government-sponsored chaplains were appointed to state legislatures, asylums, prisons, and hospitals. Prayers were offered in Congress and in state legislatures. Thanksgiving Day prayers and proclamations were made by presidents, governors and mayors alike.

Government officials afforded various forms of aid to religious groups. State and federal subsidies were given to Christian missionaries, charities and schools on the American frontier. Tax exemptions were accorded to Christian churches, clerics and charities. Special criminal laws protected church properties from violation; special procedural laws protected church officials from discovery and testimony. Tax revenues supported the acquisition of religious art for state museums, the purchase of religious texts for public state schools, and the construction and maintenance of private religious schools.

Government officials predicated some of their laws and policies directly on Christian teachings. Many of the first state schools and universities had mandatory courses in religion and compulsory attendance at daily chapel and Sunday worship. State prisons, reformatories, orphanages and asylums taught basic Christian beliefs and values. Polygamy, prostitution, pornography and other sexual offenses against Christian morals were prohibited. State marriage and divorce laws generally followed Christian commonplaces. Blasphemy was still occasionally prosecuted. It was a commonplace of 19th-century American legal thought, made famous by Justice Joseph Story, that "Christianity is a part of the common law."

Enter the Supreme Court
The U.S. Supreme Court, after some tepid interventions in the 1920s and 1930s, responded forcefully to the plight of religious dissenters. In the landmark cases of Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947), the Court incorporated the First Amendment free-exercise and establishment clauses into the due-process clause of the 14th Amendment. On its face, the Court held, the First Amendment binds the federal government: "Congress shall make no law ... ." As a general statement of religious liberty, however, the First Amendment also binds state governments. For religious liberty is part of the body, the corpus, of fundamental liberties guaranteed by the 14th Amendment: "No state shall deprive any person of ... liberty ... without due process of law."

By so incorporating the First Amendment religion clauses into the 14th Amendment due-process clause, the Supreme Court accomplished what the Blaine Amendment (1876) and 15 other proposed amendments to the Constitution could not accomplish. It created a national law on religious freedom enforceable by the federal courts against federal, state, and local governments alike. In 150-plus First Amendment cases decided after 1940, the Supreme Court took firm control of the American experiment in religious freedom, with lower federal courts and most state courts following its lead.

in more than 30 cases from 1947 to 1989, the Court created a strong establishment clause, emphasizing especially the principle of separation of church and state. This eradicated many traditional privileges and protections of public Christianity, particularly in the public schools. Beginning in the mid-1980s, however, the Court slowly weakened this separationist reading, allowing for the reintroduction of various types of state support for and cooperation with religion. While no coherent First Amendment theory has yet emerged to bring these two lines of cases together, the Court's most recent cases have experimented actively with principles of neutrality that are common to both religion clauses. John Witte, professor of law, Emory University Religious liberty