The First Amendment’s Establishment Clause must compete with another famous definition of the American government’s proper relationship with the church: Thomas Jefferson’s letter to the Danbury Baptists, wherein he wrote of a “wall of separation between church and state” (Dreisbach). Nevertheless, the First Amendment is the legal statement which, along with the Fourteenth Amendment’s incorporation effect, rules over that relationship. The difficulty lies in figuring out what the First Amendment actually means for that relationship. These battles have raged for a century, each interpretation with its friends and foes, on lines more plausibly generated by preference for what the law will be than on what the law given in the Constitution is. The Supreme Court has, until recently, proffered the Lemon test and other interpretations which make endorsement and religious motivation sufficient to constitute an ‘establishment of religion’ (Pacelle). Observation of historical establishment and disestablishment, however, yield a different answer.

In defining ‘religion’ for United States v. Seeger and other cases, the Supreme Court has, in part to avoid litigating religious question, held that a sincere belief occupying a place analogous to belief in God qualifies as religion (Barron & Dienes 432-3). Welsh v. United States carried this idea forward in a plurality opinion, allowing that that ‘deep and sincere’ beliefs which were “purely ethical or moral in source and content” could suffice as ‘religion’ (433). In effect, the Supreme Court defined religion by its function and place in life, not by its content or reference to particular positions; thus, it could and had to consider Secular Humanism a religion in its own right (431; Iserbyt 22).

Meanwhile, the meaning of ‘Establishment’ has never quite settled. While the current court has overturned the Lemon test, at least for a time, that test was the putative standard used by many courts for decades and alongside the endorsement test (a reduction of the Lemon test) represents a significant portion of modern jurisprudential thought (Barron & Dienes 431-3; Weaver 0:00; Pacelle). The Lemon test is a three-part standard, in which failure to pass any prong suffices to show the law invalid as establishment.

That test demands that the government action must have a secular legislative purpose, that the primary effect of the law must be neither to advance nor to inhibit religion, and that the law must not foster “excessive government entanglement with religion” (Barron & Dienes 436). As has been shown in the thoroughly inconsistent application of this test, this standard is vague, gratifyingly so for the judicial activist (Weaver 1:00). The endorsement test has been offered as a simpler alternative, wherein endorsement proves establishment (Barron & Dienes 431-3).

The Lemon test, and its endorsement relative, alongside the more expansive readings of the coercion test, reflect a judgement that the First Amendment prescribes secularism, the separation of government from religion (431-3). Laws must offer an irreligious purpose as their reason for existence and thus their scaffold, as per the first prong. Laws must seek to be at least somewhat irreligious in their effect, must carefully eschew a central effect which touches religion if they do not wish to be vulnerable to a tetchy judge, as per the second prong. Laws must have only the connection with religion which their potential judge deems non-excessive, as per the third prong. This last prong is, in fact, just the Establishment Clause in less restrictive wording, ‘excessive entanglement’ being more general than ‘establishment’ and thus insufficient as an objective definition. The test, overall, does little to alter the Establishment standard away from individual judicial taste, except in demanding general secularism.

This standard is the standard which has not only been applied to the federal government but communicated via incorporation to the states, which has ruled much legislation over the past century (Barron & Dienes 430-466; Norman 3-5). This standard, however, is incoherent with itself. If religion is any ‘deep and sincere’ ethical belief, then the only way for a law to evade being endorsement of religion is for its proponents, its application, and its effects to be scrupulously out of step with the officers’ personal moral convictions. Even then, the law will almost certainly communicate certain moral values; a law against murder communicates a moral abhorrence of murder as component to its central intent and effect, which constitutes (under Lemon) establishment of religion, regardless of mindset.

The difficulty into which these definitions bring the court is that religion so defined is inherent to the human estate, and this form of disestablishment requires removing it entirely. Secular humanism, a philosophy consisting in part of a denial of religion, is itself acknowledged to be religious by the federal Supreme Court (Iserbyt 22). As such, any standard which allows endorsement to constitute illegal establishment, even endorsement in primary intention or effect, falls flat on its face; the refusal to endorse religion is itself an endorsement of certain religious beliefs, such as a denial of Christian Nationalism and Christian theonomy. The standard renders itself illegal, and it therefore cannot stand (Mark 3:25).

Under this standard, indeed, privacy legislation such as HIPAA is excluded as demonstrating a moral stance against the use of medical information by private actors to exploit the citizenry (Kitaev et al. 113-9). Alternatively, the government could argue that all their actions are taken purely to appeal to their voter base, from pure power-lust rather than moral belief. Not only would this be a self-defeating proposition, as it demonstrates (barring appalling naivete) a complete disregard for public opinion, it would also vitiate establishment jurisprudence as a whole, rendering the clause null. Anything could be justified under this standard, just as Lemon could condemn anything.

Clearly a different standard is required. The natural place to turn, as per 2022 Supreme Court jurisprudence, is the history of establishment, seeking to discover what it was intended to mean (Pacelle). The difficulty in such an endeavor is the particularity of historical data; America never agreed on a single, broad definition for ‘establishment,’ from which establishment-laws could be formed. Instead, establishment was constituted by a variety of different laws, differently formulated and applied, differing massively across jurisdictions (McConnell 2110-6). Such particularity not only blurs the proper verdict in most particulars but troubles the creation of a general theory to allow judges and citizens to anticipate what the law means in less-precedented case

A rough statement of establishment’s general nature can, however, be derived from a consideration of several American polities’ establishment or disestablishment. Esbeck and Hartog, in summary of such an assessment, proffer a five-point enumeration of common ‘establishing’ laws. According to these authors, in the colonial and early American context relevant to the Constitution, establishment included government’s financial support of a state church; government control over the creeds of a state church; mandatory church attendance at the licensed state church; use of the state church to accomplish governmental functions (claimed or proper), which included records, marriages, and welfare administration; and religious tests confining public office to members of the state church or its close relatives (Hall). So short an examination as is possible today cannot fully corroborate this finding, but a general theory summarizing both Esbeck and this examination’s own findings can be supported. To wit, ‘establishment’ is when the state’s organization and organized religion (particularly institutions of worship) overlap in the substance of their institutions, such that one’s legislation was binding within the institution of the other.

England’s establishment was the milieu in which the Thirteen Colonies largely came into being (only Georgia was founded after 1689’s relaxation of England’s strictures, a relaxation which in no way amounted to disestablishment (13 Colonies; McConnell 2110-5)). This establishment included an official, state-established church, complete with prescribed doctrine and liturgy (McConnell 2114). The aftermath of the Glorious Revolution included allowance for Trinitarian, Protestant nonconformists, but the state church remained (2115). It remains, in fact, to this day.

This institutional connection is blatant; it is not, however, American, though certainly America’s political lineage is essentially English. The constitutions of Massachusetts and South Carolina (1780 and 1778 respectively) provide examples of American establishments contemporaneous with the Constitutional Convention. Article III of the Massachusetts Declaration of Rights, part of their 1780 constitution, allows and commands the state legislature to require both bodies-politic and religious societies to establish institutions for “the public worship of GOD” which support Protestant teachers of good character, unless such already be available to the area (Journal 223). This establishment included also an authority for the legislature to compel citizens to attend such public institutions (223). Three reservations are made explicit: that the bodies-politic and religious societies shall have the right to elect their own “public teachers” and contracting with them; that the citizen may divert the funds he pays for such institutions to the institution he attends; and that no one sect or denomination (of Protestants, as per the earlier provision) shall be made superior to another by law (223-4). This establishment is the most thorough under consideration today, after England’s, and its establishment clearly consists of state interference in the structure, running, and funding of church institutions.

South Carolina’s 1778 constitution establishes religion with less stricture. That document declared that, “The Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State” (Rowndes et al., Sec. XXXVIII). Like the Massachusetts establishment, the state was not allowed to prefer one Protestant denomination of another. The substance of the establishment, then, consists in what amounts to a licensure requirement for churches, complete with protections for recognized churches, requirements for ministers, and proscriptions for the registration of a church body. Its required ministerial oath and the doctrinal commitments it makes integral to church-founding, however, render it more doctrinally coercive than the Massachusetts establishment.

Both of these establishments lack the single-denomination nature of the Church of England. Both, however, contain not merely endorsement of a religious practice but institutional bonds between the state and the church, amounting in South Carolina to licensure (already a disestablishment compared to England) and in Massachusetts to provisions for outright governmental founding and funding of the church institution. In both, note, church doctrine is constrained to be ‘Protestant,’ though the South Carolina constitution gives much more flesh to doctrinal requirements.

The first example of American disestablishment comes from South Carolina’s 1790 constitution. This constitution ceases the licensures entirely; the only restriction on religious duty in Article VIII is that the liberty thus given may not be an excuse for “licentiousness” or violations of public peace and safety (South). Article I, Section 23 even establishes a partial institutional divide between church and state by limiting active preachers “of any religious persuasion” from holding primary legislative or executive seats. The constitution does hold that the “right, privileges, immunities, and estates” of religious societies are undiminished by the alteration in the state’s charter; the nonsectarian nature of this provision, however, renders it hardly an establishment but rather a recognition of justice, given also that “civil” societies are included in the same section’s provision (Art. VIII, Sec. 2).

Disestablishment in South Carolina, notably, preceded the more famous Virginia disestablishment (Jones). This disestablishment was not, in the minds of its workers, a removal of religion or Christianity from government. William Tennent, an important advocate for the change, argued that the state ought to promote Christianity without discriminating against any sect thereof, and he held that the state ought to enact laws on ethical (religious) grounds, contrary to the view of establishment inherent in the first prong of the Lemon test, the requirement for the legislation’s primary purpose to be secular and thus irreligious (Jones). The substance of this disestablishment was not secularism. It was a removal of those institutional entanglements which characterized the South Carolina government prior to the change, without any removal of the religious endorsement integral to those entanglements.

Institutional overlap implies, creates, and necessitates endorsement. Endorsement, however, is not by this necessity made the substance of establishment. Establishment also requires a common language of some sort between the institutions, in order to allow communication, and creates a certain amount of shared vocabulary. It does not follow that shared vocabulary and shared language are ‘establishment.’ Endorsement is undoubtedly integral to establishment, but endorsement alone does not constitute establishment, any more than pouring oil into a pot constitutes making French fries.

This fact is amply shown by the disestablishments in Texas (1876) and Tennessee (1870). The Texas disestablishment is the most thorough in terms of constitutional provisions, consisting in Sections 4 through 7 of its Bill of Rights (Preamble, Art. I). Section 4 minimizes the allowable religious test for political office to acknowledgement of a “Supreme Being,” a rather anorexic remnant of the oaths required by earlier state constitutions. This remnant is, however, remarkable in a constitution postdating the passage of the Fourteenth Amendment, which has been interpreted to incorporate First Amendment establishment restrictions into state governments (Norman 3-5).

Section 5 provides a similar protection for court witnesses, lacking even the demand for an acknowledgement. Section 6, in language which will reappear later, disallows all government coercion of the conscience or of religious ritual, provided it be peaceable. Section 6 does not, however, divorce government entirely from religion; indeed, government is given a duty to “protect equally every religious denomination in the peaceable enjoyment of its own mode of worship.” This provision is not secularism; it more closely aligns to Tennent’s argument that the government should promote non-sectarian Christianity, though without the specificity to Christianity (Jones). Of course, in 1876 Texas, non-Christian religion would be limited to Indian paganism, a bare and often legally foreign minority already potentially barred from office by Section 4, and Judaism, a near-Christian sect with little popular support or incentive to spread. The promotion of religion, therefore, would has a practical matter be effectively promotion of Christianity, as the nominally Christian government probably intended.

Section 7 enacts a final element of establishment by forbidding the state to spend money for the “benefit of any sect, or religious society, theological or religious seminary [sic],” or the use of state property for such purposes. This provision might be read as effective secularization, given that a state action which appropriates no property or money is hard to conceive of, though possibly allowing hostility to religion. Section 6 in general and particularly its final clause, however, put paid to that possibility. The state is clearly intended to “benefit” religion in general, as per Section 6; the restriction in Section 7 immediately following, therefore, must in consistency be a restriction on the use of funds for a particular sect or institution. In other words, this provision is a forbidding of financial entanglement with religious institutions, just as Section 6 was a forbidding of coercive actions in favor of or against those institutions.

The capstone which renders certain that this disestablishment required no cessation of endorsement is that the constitution itself is explicitly Christian. The Preamble of the document explicitly endorses Christianity, by any fair reading, declaring that, “Humbly invoking the blessing of Almighty God, the people of the State of Texas do ordain and establish this Constitution.” A clearer endorsement could not be asked for, and this statement in a document clearly intended as disestablishment. Lemon would call the statement ‘establishment,’ of course, but Lemon was not invented yet (Pacelle). Endorsement, by this evidence, was not considered establishment, not yet.

Tennessee’s 1870 constitution in large part agrees with the provisions of the Texas constitution. Indeed, Article I, Section 3 thereof is barely a few words different from Texas’s Article I, Section 6 (Constitution; Preamble). Tennessee’s Article I, Section 4, meanwhile, removes all religious oaths of office, with Article IX, Sections 1 and 2 providing a separate requirement that “No person who denies the being of God, or a future state of rewards and punishments, shall hold any office in the civil department of this State,” and that Christian ministers or priests are similarly barred (Constitution). Section 6 similarly protects jury members.

Three sections, however, actually allow or require discrimination in favor of religion generally: Article II, Section 28, allowing certain tax exemptions; Article VIII, Section 3, commanding legislative exceptions to the muster for objecting sects; and Article XI, Section 15, protecting each person’s religious day of rest. These three exceptions, however, are not religious entanglements. Tax exemptions, besides being not unique to religious institutions in this provision, are classic non-entanglement (Barron & Dienes 489). The other two, meanwhile, are specific protections for aspects of the conscience, albeit with a greater reliance on institutional statements than current jurisprudence likes.

This Tennessee constitution also clearly endorses Christianity, contra Lemon. Apart from the clear requirement for holding office, which might be termed establishment as per Esbeck and Hartog, Article I, Section 3, a section clearly disestablishmentarian in purpose, explicitly states the centrality of “Almighty God” (Hall).

Overall, the disestablishments evinced in American history, as contrasted to the establishments, do not match the definition of disestablishment implied by Lemon or a similar endorsement test. ‘Establishment’ is not shown by endorsement alone. ‘Establishment’ is an overlap between the institutions of civil government and of organized religion, as seen in England, Massachusetts, and pre-1790 South Carolina. In each of these establishments, the civil government provided laws which acted as rules of the religious institutions, not as general laws for the public. In each of the evidenced disestablishments, this overlap was removed, albeit in at least two cases, Texas and Tennessee, with a continued requirement that office holders be at least vaguely Christian (which does not institute a sect or state church, being too broad, particularly in conjunction with the other provisions). The conclusion is clear: by the historical record, Lemon is a lemon, along with all its kin, and secularism’s ‘wall of separation’ ought to be set aside permanently.

God bless.

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