On Establishment

The word ‘establishment’ in the famous phrase in the First Amendment to the Constitution that bans “…establishment of religion…” is a key to understanding the intent of our founders with respect to separation of church and state.  Here are a number of quotes, both historical and contemporary on the word ‘establishment.’

Alexander Hamilton defined establishment of religion as: the government support and protection of religion.

“Remarks on the Quebec Bill,” in Hamilton Papers, 1:169-70.

 

“[F]or the men who wrote the Religion Clauses of the First Amendment the ‘establishment‘ of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity.”

[source unknown]

 

Of the eleven states that ratified the First Amendment, nine (counting Maryland) adhered to the viewpoint that support of religion and churches should be voluntary, that any government financial assistance to religion constituted an establishment of religion and violated its free exercise.(78) Some had done so from their earliest foundations; some arrived at that stance after the American Revolution. The Maryland constitution permitted a general assessment to support religion, but Marylanders firmly rejected a proposal to enact one. Of the ratifying states, only Vermont and New Hampshire adhered to the view that states could or should provide for tax-supported religion. On a whole range of other applications, however, Americans inherited traditions of government interference in religious matters.

 

“The First Amendment bans laws respecting an establishment of religion. Most of the framers of that amendment very probably meant that government should not promote, sponsor, or subsidize religion because it is best left to private voluntary support for the sake of religion itself as well as for government, and above all for the sake of the individual. Some of the framers undoubtedly believed that government should maintain a close relationship with religion, that is, with Protestantism, and that people should support taxes for the benefit of their own churches and ministers. The framers who came from Massachusetts and Connecticut certainly believed this, as did the representatives of New Hampshire, but New Hampshire was the only one of these New England states that ratified the First Amendment. Of the eleven states that ratified the First Amendment, New Hampshire and Vermont were probably the only ones in which a majority of the people believed that the government should support religion. In all the other ratifying states, a majority very probably opposed such support. But whether those who framed and ratified the First Amendment believed in government aid to religion or in its private voluntary support, the fact is that no framer believed that the United States had or should have power to legislate on the subject of religion, and no state supported that power either.”

The Establishment Clause, Religion and the First Amendment, By Leonard W Levy, page 146-147

In a nutshell, “establishment” entails some element of state coercion. Prayer in public school is indeed “establishment” because there is no option given: students have to attend that school, and thus have no choice in exposure to the prayer. .

Damien Falgoust, Esq. UT Law ’99

An “establishment” is not simply a “place.” It is the act of establishing, and “to establish” includes installing or settling in a position, to show to be valid or true, or to cause to be accepted, to enact, appoint or ordain for permanence, etc. (Random House Compact Unabridged.)

 

Prayer is, in its essence, a religious activity. To include prayer in public schools is to “establish” a religious activity. It’s irrelevant whether the activity “establishes” the particular views of the Presbyterians (or whomever), or Judeo-Christianity in general: it’s still an unconstitutional “establishment of religion.”

 

Establishment clause. That provision of the First Amendment to U.S. Constitution which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”. Such language prohibits a state or the federal government from setting up a church, or passing laws which aid one, or all, religions, or giving preference to one religion, or forcing belief or disbelief in any religion.”

Black’s Law Dictionary, Abridged Sixth edition, Centennial Edition (1891-1991) West Publishing Company, St. Paul, (1991) p 379

Some Thoughts on Religion and Law, Susan Batte, Esq.

1.The Constitution did not provide any mechanism for the establishment of religion or for the support of religion.

2.Religious tests were the primary mechanism for perpetuating an established church within the political structure.

3.The Constitution specifically prohibits religious tests or oaths for office.

THEREFORE, the Constitution created the concept of Separation of Church and State by providing nothing in the constitution that supports the idea that Government as Government is allowed to support any religion for any reason and by specifically prohibiting the primary political mechanism for supporting religion.

The 1st Amendment may only be interpreted, as being consistent with the Constitution and the views expressed in the Constitution concerning religion because:

1.The 1st Amendment was drafted after the Constitution was ratified and was not designated as repealing any provision in the Constitution.

2.The 1st Amendment does not provide any mechanism for establishing religion.

3.The 1st Amendment does provide the mechanism to allow an individual as an individual and not as government to exercise the religion of his or her choice.

THEREFORE, the 1st Amendment cannot be interpreted to mean that some governmental entities may support religion in some ways (i.e., vouchers, welfare programs, etc.).

Once the 1st Amendment prohibited Congress from establishing religion by prohibiting it from making any law respecting an establishment of religion – Congress was thereby precluded from passing any kind of appropriation bill to fund any religious enterprise.

In order for the above to be true, the interpretation of “establishment” would have to be broad, and in fact the broad interpretation of “establishment” is supported. First, the O.E.D. (Oxford English Dictionary) sets out a 1561 definition of establishment as “a means of establishing; something that strengthens, supports or corroborates.” Into the 1700s – 1800s, “establishment” could be defined as “the establishing by law (a church, religion, form of worship.)” As an example, the O.E.D. sets out the following: 1886 Earl Selborne Def Ch. Eng. I. iv. 77 All such relations of the Church to the State as those which are summed up in the term ‘Establishment‘.

Second, a broad interpretation of “establishment” is consistent with the indefinite article that proceeds it. “An” establishment of religion’ refers to all or any religious establishment — not to one or some establishments. In the absence of definiteness, the inclusion of “of one Christian sect over another” after “Congress shall make no law respecting an establishment” would be necessary if, as Mr. Barton argues, the 1st Amendment was all about stamping out competing rivalries between Christian sects.

In addition, the operative word in the Establishment Clause is RESPECTING. Respecting an establishment of religion. Any religious institution, be it a 20 member country church or a huge multimillion member international religion, is an establishment of religion. The government is forbidden from making any laws, positive or negative that would pertain to an establishment of religion.

The narrow definition of establishment is that the 1st Amendment meant only to prevent a “State Church” from being officially sanctioned by the Government. (In this way, some people have tried to argue that supporting religious schools doesn’t establish anything.) However, such a narrow reading of “Establishment” would need specific language added to the Amendment to support it since a plain language reading of the Constitution clearly shows no bias for (or against) Christianity as opposed to any other religion or even irreligion. And neither does the 1st Amendment.

 

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