What The Establishment Clause Really Means

Forget the sound bite about a “wall of separation.” We dig into what the Establishment Clause actually says, why the founders cared, and how the Supreme Court’s view has evolved from strict separation to a history-and-tradition lens that prizes neutrality without scrubbing religion from public life. With Dr. Sean Beienberg, we unpack the founding-era landscape where some states still had established churches, walk through Jefferson’s letter and Madison’s Memorial and Remonstrance, and contrast competing models: strict separation, non-preferentialism, and minimalist federalism. You’ll hear how those frameworks shape real-world fights over school prayer, vouchers, and religious symbols on public land.

We take on the Blaine Amendments and their anti-Catholic legacy. We explain how many state constitutions still restrict public funds for “sectarian” schools and why modern school choice programs route money to parents to preserve neutrality. Then we turn to the courtroom: from early cases striking down school-composed prayers to more recent rulings upholding legislative invocations and historic memorials, the line has shifted toward practices consistent with national traditions and away from a blanket bar on religious presence. The key test today is no coercion, favoritism, or penalty for religious status in generally available benefits.

If you care about constitutional law, education policy, or how pluralism works in daily governance, this conversation offers clarity and context without the jargon. You’ll leave a sharper sense of where the Court is heading, why free exercise and establishment can clash, and how neutrality tries to hold the middle. Subscribe, share this episode with a friend who loves civics, and leave a review with your take on where the Establishment Clause line should be drawn.

Check Out the Civic Literacy Curriculum!

School of Civic and Economic Thought and Leadership

Center for American Civics

Chapters

• 1:32 Setting The Stage: Today’s Focus
• 1:59 What Is The Establishment Clause
• 4:16 Founding Context And Federalism
• 7:16 Competing Models: Separation To Minimalism
• 13:01 Modern Shift To History And Tradition
• 16:04 Jefferson’s Letter And Its Legacy

Transcript

SPEAKER_00: 0:46

Welcome back to Civics in New Year. Today we have Dr. Sean Byenberg to talk with us about the establishment clause. So if you haven't listened to the episode before this with Dr. Kreese, where he kind of goes over the freedom of religion as a whole, I definitely suggest that you start there. But this episode and the episode after, we're going to dig more into these two clauses. So, Dr. Beyenberg, when we're looking at freedom of religion, what is the establishment clause?

SPEAKER_01: 1:13

The establishment clause is effectively part of the, as Professor Caris alluded to, the broader effort by the founders to protect a freedom of religion broadly understood. And I want to focus effectively on both the original sort of understanding of what it was and then how the doctrine has developed, which and I should say developing. So this is one of the places where over the course of the 20th century the court has laid out sort of different tests. I'll try to skip over the really boring tests and just sort of give you the high-level takeaway. Right? So the establishment clause, everybody agrees, is designed to avoid at the federal level initially something akin to a Church of England. The complication comes a little bit later, word, a little afterward, when you're applying the Bill of Rights to the states. But originally the establishment clause was just everybody agreed at the threshold, it was just that there would not be a federal established church. And I emphasize that because several of the states, even through the mid-19th century, continued to maintain their own established churches. They weren't necessarily that everybody had to march in like gunpoint or you were going to be punished, but at least one that was sort of supported by the state financially. And so some people in the Americas, I mean this again reflects the diversity of the states under federalism. Some of the states were sort of religious havens, some of them were specifically designed for a particular religious community or tradition. So just at the threshold level, the sort of everybody can sign on to this. The original understanding and effort of the establishment clause was to avoid basically creating a national church. Probably leave the states alone at theirs, but not build a national church. Fourteenth Amendment, by that time, effectively there's an agreement that even the states should not have established churches. So there's a little bit of sort of dog, sort of doctrinal ambiguity about what that plays out. But effectively, once we no longer have the federalism concern, then the question becomes okay, what does it actually mean to establish a church? And particularly, the language of the First Amendment doesn't say there shall be no established church. It's law respecting an establishment of religion, which gets a little more complicated. So the basic, basic positions that have been laid out on how to understand this, we can cluster into a couple of different schools. The one that was the predominant understanding in Virginia from shortly after the ratification of the Constitution, and which the United States Supreme Court adopted in the mid-20th century, is a position called strict separation. Its origins are not necessarily in the text of the establishment clause, but most famously are encapsulated in Jefferson's famous letter to the Danbury Baptist, where he calls for the erection of a wall of separation between church and state, again, particularly at the federal level. Now, we sometimes have the narrative that this is exclusively basically a protection of sort of secularists against from religious people. But at the time of the founding, again, this is a letter to Danbury Baptists. Religious minorities in any of the states are often frustrated that they're basically second-class citizens. And the argument comes, I think, is most famously and eloquently articulated in a document called Madison's Memorial and Remonstrance, where he effectively explains and says, the primary reason we actually want this understanding of separation of church and state is that the religion and basically the relationship and obligations you have to God are too important for the state to interfere with. And so everybody should be able to agree to that. So at the time of in the 1780s, Virginia does have an established church, but Madison and Jefferson are basically able to persuade much of the Virginia political class to adopt something closer to the stricter separation perspective. This established the church there. Not all of them. Washington, John Marshall, many of the other figures are disagree with Madison and Jefferson on this. This school ends up then getting picked up as and understood as the broader American perspective by the Supreme Court of the 1940s. That's probably not necessarily right insofar as, as I was alluding to, there are different understandings of what counts as an establishment clause, an establishment of religion. And the Supreme Court basically says we're just going with Virginia, which may be right, but it's not necessarily the most representative one. There's a scholar named Donald Drakeman who I think has probably written the best book on this. And Drakeman argues that we should understand establishment in one of the narrower ways because it's the only way people would have signed off on this First Amendment. So some of the other ways that the court has interpreted the establishment clause over time is one called non-preferentialism. And there's a couple versions of this. But effectively, this is the idea that the government can choose to support religion, but cannot disproportionately benefit one church over another. So it is to say the state, the government can basically it can have perhaps a prayer in school, but it couldn't have necessarily only the Baptists get their prayers. There are some in the 19th century that argue that a proper understanding of sort of common law inflecting the establishment clause suggests that there can be a preference for, but not within Christianity. So I think Joseph Story and some others are associated with that. But the basic take in non-preferentialism is that there can indeed be interactions between church and state, but they basically have to be non-preferential at the very least of religion to non-religion, but some say basically that it can be as long as there's uh sort of a level of parity. Uh and then finally, there's a minimalist interpretation, which basically just says the whole purpose of this was effectively federalism, and the establishment clause shouldn't even apply to the states today. It's impossible to apply it under the 14th Amendment. The court, like I alluded to for most of the 20th century, for most of the mid to late 20th century, was closer to strict separation and drifted more toward non-preferentialism. And I think that's fair to say, uh, without rattling off a thousand cases, that that's effectively where the court has moved now. They've effectively said what counts as a violation of establishment is something inconsistent with our history and traditions. So that means that yes, you can have prayer at a legislative meeting. Yes, that that that's not a problem. Yes, you can have the state contribute to, for example, a school voucher toward a private school if that similarly is being extended to a secular private or to a religious private school, if that's similarly being extended to a secular private school. And so in the last few years, the doctrine has pushed much more toward that, which in some ways is closer to what it was before you know the 1940s when they just said we're going with Virginia strict separation.

SPEAKER_00: 8:38

So you brought up Jefferson's letter to the Danberry Baptist, which, if you're listening to this, it's a very short read. Um, I used to read it with my students in class. And so we've heard this separation of church and state. This is the only place that wording is, correct? It is not in the actual constitution itself.

SPEAKER_01: 8:58

Correct. That's why I said that the language is quite interesting. It's no law respecting an establishment of religion. So separation of church and state is sort of a conceptual way, is one way to sort of apply or interpret that. It does become a popular phrase in the 19th century, although it largely has, if you go back and see what they count it as, it really is mostly just anti-Catholic, where they're saying we have to have a separation of church and state, so we can't subsidize Catholic schools, even if we're saying mandating the King James Protestant Bible be read. But separation of church and state in the 19th century really is coded as anti-Catholic. And particularly, there's a sort of movement called the Blaine Amendment. It's more actually closely associated with Ulysses Grant, but Senator James Blaine is the sponsor in Congress. And this effectively would have modified the First Amendment to make it explicit that basically government money could not be directed toward sectarian institutions, but particularly Catholic schools. It fails at the federal level, but one thing that is striking, Congress then requires that as a condition of Western states getting into the union. So most of the Western state constitutions include a provision that's called a baby blane amendment. Arizona, for example, is one of them where they say explicitly no money can go from basically state funds to a religious uh institution. And this is part of why this is part of why, for example, states have moved in some cases away from like the school voucher model toward more of an ESA model where the money goes to the parent first, and then the parent can choose what kind of school it goes to. But that's basically a workaround because many of the states have these Blaine amendments. There are some on the Supreme Court, and they've gestured in this way, that the Blaine amendments might themselves, at least at the state level, violate the free exercise clause by basically creating an additional burden that is imposed on religious institutions that isn't imposed on secular institutions. So there's been a line of case law, I guess this is in some ways more on the free exercise with clause, but there's been a line of case law suggesting that indeed, no, this is not an establishment of religion if you say that a church can, uh, church school can be eligible for the same thing that a secular school or even maybe potentially a public school might be. That effectively, as long as you are not privileging it and saying this is the religion we want to put a thumb on the scale for and protect, that that's that that's okay. So yeah, so Jefferson's Jefferson's phrase is effectively an interpretation, but the court very much picks it up and it becomes sort of the language that the court uses for about 25, 30 years in the 20th century. But you're absolutely right. The phrase is indeed respecting an establishment of religion. Separation of church and state is an interpretation, perhaps the correct interpretation, but it is by no means either the exclusive or the text itself.

SPEAKER_00: 12:00

And you, you know, you bring out free exercise, and this is why we're doing two separate episodes on this, because they they do intersect, but they also don't, because it's so it's such a complicated and very interesting look when we're looking at case law. So, can I ask one more question? So when we're looking at like school prayer, right? There has been Supreme Court cases on prayer in public school. Is that establishment or is that free exercise?

SPEAKER_01: 12:28

The courts have adjudicated those under the establishment clause. So the first, there's a there's a case about that from you know the 40s and 50s, they and in which case in in which very famously, New York basically writes it's really, really generic prayer. It's effectively like, God bless our schools, bless our children, let us learn, amen. I mean, it's really pretty much any monotheistic religion could could sign off onto that. It's very, it's designed to be very not non-sectarian. And nonetheless, uh, and the Supreme Court strikes that down. The dissents effectively say incredulously, like, what religion is this? Is this Episcopalianism? Is this Judaism? Like, this doesn't seem like it meets the sort of traditional understanding of establishment, which is your taxes are being used to support a specific religious tradition that you may not want to participate in. And then the the court and so then states and municipalities sort of play around with ways to maintain something along those lines. And so there's a in 1992 very famous case, Levy Weissman, where the Supreme Court strikes down a school prayer in which the school doesn't compose the prayer. That was part of the objection that had been made in that original case. And they just say, we will sort of rotate among inviting rabbis and priests and pastors, and they can give the invocation, and they get a little set of guidelines in that case, which is basically like don't you know proselytize, don't hector for your own. But it's effectively a just do a really generic prayer. And the Supreme Court strikes that down as well. And their argument effectively is that at least for younger people, they will feel sort of coerced and pressured to participate in religion, even if it's only just that like maybe some of their peers are standing up. And the dissenters in that case say, like, no, coercion means you're actually going to be punished for it. Like you're going, you're they're gonna withhold your diploma or something, but just sort of sitting there quietly while somebody else prays and somebody else stands up for it, the dissenters argue is is not an establishment. Uh and a couple of years ago, and so yeah, to it's hard for me to sort of avoid going too heavy into free exercise, but the basic controversy is the court, if you read each of these phrases broadly, then it creates a real problem. If you think the establishment clause is like anything that at the margin is has a possible connection to religion, that's the sort of the maximalist strict separation position. At the same time, if you want to read the free exercise clause broadly and say, no, you should be able to exercise your religious convictions without basically punishment from the state, if you read them both expansively, it creates a real tension. As several of the justices point out over the years, if you read them both narrowly, or even one of them narrowly, the relationship between them is a little less, a little less fraught. But for a while there, the court was trying to read them both maximally. And like I said, they're they're moving away from the more maximalist interpretation of the strict separation and effectively saying stuff that's sort of consistent with our history and traditions, sort of rotating prayers among it, certainly in like a legislative session. The court's increasingly okay with that. Or a few years ago, a case about whether it was an establishment of religion to have effectively an old cross that was built as a World War I memorial on public land. And they said, nobody's being like made to go bow before this image. This doesn't look like establishment and sort of memorials to things with basically maybe a religious image attached to it is well within the history and tradition of the United States. So they said that one's okay. So the court is moving toward, in some ways, maybe non-preferentialism, but basically much more of a sort of you're not being marched in at gunpoint, you're not being forced to specifically subsidize one thing, but instead the the religious people you're trying to reconcile with free exercise. Religious people religious connect connections to church and state are not necessarily inherently a problem as long as it's not basically designed to push you into a particular religious tradition. That's a sort of where the core is moving.

SPEAKER_00: 16:38

Fantastic. Dr. Weinberg, thank you. And listeners, if you haven't listened to the episode before this, it kind of goes over freedom of religion very broadly, please do, and then join us for our next episode where we're going to do a deep dive into free exercise clause.