Establishment vs. Free Exercise of Religion

The Supreme Court will decide this term the case of Carson v. Makin which concerns the State of Maine paying for the religious-oriented education of high school students from school districts without a public high school. The State claims that any payments for religious instruction violate the Constitution. On the other hand, it seems discriminatory against religion for the State to pay for private, secular education, but not for private education at religious schools.

The First Amendment to the Constitution begins: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” The Establishment Clause was aimed at the practice of using tax money to support a religious sect, such as the Anglican Church in England. In opposition to this practice, Thomas Jefferson wrote, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical….” Jefferson later advocated a “wall of separation” between church and state.

The Free Exercise Clause was aimed originally at the European practice of forbidding people to practice the religion of their choice. Protestants and other heretics had been massacred in France, and in England Catholics faced legal disabilities. The Free Exercise Clause forbade Congress from instituting any such discrimination.

Since the Supreme Court started in the 20th Century to apply the First Amendment to state and municipal laws as well as to federal legislation, the establishment of religion in its original sense has never been attempted. However, free exercise, in its original sense, has occasionally been at issue. The Santeria religion called for the ritual sacrifice of animals, including chickens, pigeons, goats, and sheep, through cutting of the carotid artery in the neck. The City of Hialeah, Florida, passed an ordinance forbidding the ritual slaughter of animals even when, as was the Santeria practice, the animals were slaughtered in the same manner as was otherwise allowed, and the animal were eaten after completion of the ritual. The Supreme Court ruled unanimously in 1993 that Hialeah’s ordinance unconstitutionally interfered with the free exercise of religion.

As originally understood, there was no conflict between the Establishment Clause and the Free Exercise Clause. So long as a legislature didn’t start an official religion supported by tax dollars, there was no Establishment Clause violation. And so long as it didn’t deny to any religious group practices that were otherwise legal, there was no Free Exercise Clause violation. There was no conflict between prohibiting the establishment of religion and guaranteeing its free exercise.

However, the Supreme Court eventually broaden the scope of what would constitute unconstitutional establishment, and what would contravene free exercise, thereby creating conflicts between the two clauses. Public benefits to religion were sometimes considered to violate the Establishment Clause in the absence of the state actually establishing a religion, and failure of a state to give public benefits to religious organization on the same basis as secular ones came to be considered a violation of free exercise, even though people remained free to practice their religion.

In Committee for Public Education and Religious Liberty v. Nyquist (1973) the Court overturned on establishment grounds the State of New York’s plan to give grants equally to religious as well as secular private schools for maintenance and repair of their facilities. In Locke v. Davey (2004) the Court accepted Washington State’s argument that it would establish religion if it allowed students in a scholarship program to use its benefits to study for the ministry.

But in Espinoza v. Montana Dept. of Revenue (2020), the Court’s majority didn’t allow Montana to exclude students wanting to study at religious schools from participation in the state’s program of financial aid. The dissent didn’t see the difference between a state’s refusal to support training for the ministry and its refusal to support religious-school education in general.

It seems that if a state supports religious institutions on an equal footing with secular ones, it supports free exercise, but violates the prohibition of establishment. But if on establishment grounds it refuses to include religious institutions in general programs of aid, it may be taken to violate the free exercise of religion. The case currently before the Court, Carson v. Makin, illustrates this dilemma. If the state pays for both secular and religious private education, it establishes religion, but if it doesn’t pay for religious education on the same terms as secular education, it denies free exercise.

The solution is to revert to the original understanding of the religion clauses, which avoids these dilemmas and allows states to do as they wish in such cases. This doesn’t imply that the original understanding of the Constitution is always best. It implies only that it’s a good resource when subsequent interpretations create problems that an original understanding avoids.

You can reply at wenz.peter@uis.edu.