It wasn't until halfway through the 20th century that this rule ("Congress shall make no law ...'') was applied to the states. Since then, we have struggled to define exactly what that means in the modern world.
At the time of the Revolutionary War, the Church of England was the established church in the mother country and the southern colonies (plus a few New York counties). King George was the head of the church. Land grants and tithes supported it. Preachers were licensed; bishops sat in the House of Lords.
When England lost the war, the Church of England became understandably unpopular. And the new country had enough religious variety (Puritans, Baptists, Anglicans, Quakers, Catholics, a few Jewish people) that we couldn't agree on establishing some other church.
So the First Amendment announced that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
It wasn't until halfway through the 20th century that this rule ("Congress shall make no law ... ") was applied to the states. Since then, we have struggled to define exactly what that means in the modern world. We have nothing remotely like the 18th-century establishments.
But what about giving aid to religious schools? Is that like the land grants and tithes that supported the Church of England?
One approach (separation of church and state) has held that the government should have no connection whatsoever with religion. The Supreme Court under Chief Justice Warren Burger took this approach.
It basically told religion, like a father disinheriting his son, "You're dead to me." The Burger Court once held that the government couldn't offer speech therapy to children in parochial schools, because even that would improperly entangle religion and state.
The idea of separation has a particular appeal for people who want to keep religion out of public life. Separationism aligns with the campaign against traditional moral standards in laws that deal with sex and marriage. Its proponents have argued that laws limiting financial support for abortion violate the establishment clause, because the objections to abortion stem from religious belief.
But this approach has two flaws. First, in the modern world, the government has its fingers in everything. Strict separation is impossible. Second, it seems odd to treat disestablishment like disinheritance.
Cedric of Rotherwood disinherited his son Ivanhoe because he condemned the boy's Norman sympathies. America didn't put religious establishment aside because it frowned on religion per se. On the contrary, the First Amendment enshrined religion as the first freedom, before speech or the press.
The other approach (neutrality) to understanding religious disestablishment seems more practical and truer to history. We had too much religious variety in 1791 to agree on an established church. But rather than acting like a father disinheriting his son, our approach was more like a father who decides to let his children choose their own paths in life and treats them all equally.
The Supreme Court has gradually embraced this approach under Chief Justices Rehnquist and Roberts. In 2002, Chief Justice William Rehnquist held that Ohio could, if it wanted to, include religious schools in a voucher program for tuition at private schools. The program was consistent with the establishment clause because it was "neutral with respect to religion." It was the recipients who chose religious schools, not the state.
Chief Justice John Roberts went even further two weeks ago in Espinoza v. Montana Department of Revenue. He held that a state program offering scholarships for children to attend private schools not only could include religious schools, but had to. The First Amendment, he said, "protects religious observers against unequal treatment."
It has taken more than half a century to sort this issue out, but I think we have reached the right conclusion. The point of the establishment clause is not to push religion off into a corner. It's to let us make up our own minds.
- Garvey is president of The Catholic University of America in Washington, D.C.