Introduction: The Originalist Lens on Religion and Government

The Establishment Clause of the First Amendment declares that “Congress shall make no law respecting an establishment of religion.” This short phrase has been the subject of intense legal and political debate for more than two centuries. At its core, the clause defines the relationship between government and religion, but how broadly or narrowly that boundary is drawn depends heavily on the interpretive method one applies. Originalism, a prominent approach to constitutional interpretation, seeks to answer that question by examining what the ratifiers of the Constitution understood the clause to mean when they adopted it in 1791. This article explores the originalist approach to the Establishment Clause, its historical foundations, key Supreme Court cases, and the ongoing debate about its application to modern controversies.

What Is Originalism?

Originalism is a legal philosophy that holds that the meaning of the Constitution is fixed and should be understood as it was originally intended or understood by those who drafted and ratified it. It stands in contrast to living constitutionalism, which argues that constitutional meaning can evolve over time to meet new circumstances. Originalist judges and scholars rely on historical evidence such as the Federalist Papers, records of the Constitutional Convention, state ratification debates, and contemporaneous legal writings to discern the original public meaning of constitutional provisions. When applied to the Establishment Clause, originalism asks a deceptively simple question: what did the First Congress and the state ratifiers intend to prohibit when they forbade the federal government from legislating an establishment of religion?

Two Main Strands of Originalism

Originalists generally divide into two camps: original intent originalism, which focuses on the subjective intentions of the framers, and original public meaning originalism, which seeks the ordinary meaning that the text would have had to a reasonable person at the time of ratification. The latter is now the dominant form. Both approaches, however, rely on deep historical investigation to avoid reading modern values into the Constitution.

The Establishment Clause in Historical Context

To understand the originalist view of the Establishment Clause, one must first understand the religious landscape of the late eighteenth century. At the time of the Founding, several states had official or preferred churches. Massachusetts, Connecticut, and New Hampshire had Congregationalist establishments; while Virginia, after a fierce battle led by Thomas Jefferson and James Madison, disestablished the Anglican Church in 1786 with the Virginia Statute for Religious Freedom. Many founders were wary of a national religion but were perfectly comfortable with state-level endorsements of Christianity. The First Amendment originally applied only to the federal government, not the states, which left state establishments untouched.

Originalists point out that the clause’s language — “Congress shall make no law respecting an establishment of religion” — is carefully worded. The phrase “respecting an establishment” means both prohibiting Congress from establishing a national religion and from interfering with existing state establishments. That dual meaning reflects a compromise: the federal government would have no power over religion, leaving the matter to the states. This federalism dimension is crucial to many originalist interpretations.

Key Historical Documents and Debates

James Madison, who drafted the First Amendment, explained in his Memorial and Remonstrance Against Religious Assessments (1785) that religion should be free from government coercion. Thomas Jefferson later described the First Amendment as building “a wall of separation between church and state” in an 1802 letter to the Danbury Baptists. Originalists often note that Jefferson’s metaphor was not part of the constitutional text and argued that the wall was meant to protect the federal government from religion, not to cleanse the public square of all religious expression. Similarly, many originalists point to the practice of early Congresses: they appointed chaplains, provided for days of prayer and thanksgiving, and funded religious missions to Native Americans. If the framers had truly intended a strict separation, originalists argue, they would not have engaged in such activities themselves.

Originalist Interpretation of Key Supreme Court Cases

For most of American history, the Establishment Clause was rarely litigated at the federal level. That changed in the mid-twentieth century, when the Supreme Court incorporated the clause against the states through the Fourteenth Amendment in Everson v. Board of Education (1947). Since then, the Court has developed several tests to evaluate government involvement with religion. Originalists have been critical of many of these tests, arguing that they depart from the historical meaning of the clause.

Lemon v. Kurtzman (1971) and the Lemon Test

In Lemon v. Kurtzman, the Court struck down state laws providing financial support to religious schools. It established a three-part test: a law must have a secular purpose, must not have the primary effect of advancing or inhibiting religion, and must not foster excessive government entanglement with religion. Originalists have fiercely criticized the Lemon test as a judicial invention with no basis in the original understanding. For example, Justice Antonin Scalia, a leading originalist, repeatedly argued that the test was unworkable and historically inaccurate. In a 2005 opinion, McCreary County v. ACLU of Kentucky, Justice Scalia wrote that the display of the Ten Commandments in a courthouse did not violate the original meaning of the clause, because the Founders viewed religion as a positive element of public life. Originalists point to the fact that many founding-era legislatures funded religious education without controversy.

Engel v. Vitale (1962): School Prayer

In Engel v. Vitale, the Court ruled that state-sponsored prayer in public schools violated the Establishment Clause. Originalists again object that the framers would not have understood the clause to prohibit voluntary, non-coercive prayer in a public setting. They note that many early schools used prayer and Bible reading, and that the clause was intended only to prevent the creation of a national church. Critics respond that the originalist position ignores the coercion inherent in a school setting, where children are a captive audience. Nonetheless, originalist scholarship on school prayer often emphasizes that the Founders believed the states, not the federal courts, should regulate such matters.

American Legion v. American Humanist Association (2019)

A more recent case, American Legion v. American Humanist Association, involved a large World War I memorial cross on public land. The Court held that the cross did not violate the Establishment Clause, citing the memorial’s historical significance and religious neutrality over time. A plurality opinion rejected the Lemon test in favor of a more historical analysis. This decision was a significant victory for originalists, who had long argued that the government should be allowed to acknowledge religion’s role in American history without crossing into establishment. Justice Samuel Alito, writing for the plurality, traced the long tradition of religious monuments on public land from the Founding era through the twentieth century, concluding that such practices were consistent with the original understanding.

Originalist Critiques of Modern Doctrine

Originalists argue that the Supreme Court’s modern jurisprudence has created confusion and hostility toward religion. They point to the Court’s adoption of the “endorsement test” in Lynch v. Donnelly (1984), which asks whether a reasonable observer would perceive the government as endorsing religion. Critics say this test is highly subjective and unmoored from the original meaning. Similarly, the “coercion test” proposed by Justice Anthony Kennedy, which focuses on whether the government coerces individuals to engage in religious observance, has been embraced by some originalists as more historically grounded but has not been consistently applied.

A leading originalist scholar, Professor Michael McConnell of Stanford Law School, has argued that the Establishment Clause was originally understood to protect religious liberty and to prevent the federal government from interfering with state religious establishments, not to create a secular state. McConnell’s historical work shows that many early Americans supported non-preferential aid to religion, such as tax-funded chaplains and land grants to churches. This view, sometimes called “non-preferentialism,” holds that the government may support religion as long as it does not favor one sect over others. Non-preferentialism has been influential among originalist judges and policymakers, though it remains contested.

Counterarguments and Originalist Responses

Critics of originalism argue that the method is too rigid to address modern challenges such as school vouchers, religious displays on public property, and the accommodation of minority faiths. They contend that the founders did not anticipate the religious diversity of today’s America or the powerful role of the federal government. Originalists reply that fidelity to the text and original meaning provides stability and prevents judges from imposing their personal preferences. They also note that the founders deliberately used broad language — “an establishment of religion” — that could be applied to new circumstances, so long as the core meaning is preserved.

Another frequent objection is that originalism often yields ambiguous answers because historical evidence is incomplete or contradictory. For instance, the meaning of “establishment” in the eighteenth century varied: some states had multiple established churches; others had no establishment at all. Originalists acknowledge these complexities but insist that careful historical analysis can still identify a core prohibition on officially mandated religion. For example, even the most generous accommodationists agree that a national church or mandatory church attendance would be unconstitutional under any originalist reading.

The Role of Originalism in Current Debates

Originalist interpretations of the Establishment Clause have gained renewed prominence with the Supreme Court’s current conservative majority. In Kennedy v. Bremerton School District (2022), the Court ruled that a high school football coach who prayed on the field after games had a First Amendment right to do so. The majority, applying a historical analysis, held that the coach’s prayer was private speech and that the school’s attempt to suppress it violated both the Free Speech and Free Exercise Clauses. Justice Neil Gorsuch, writing for the Court, explicitly rejected the Lemon test and emphasized that the Establishment Clause must be interpreted by “reference to historical practices and understandings.” This decision signals a clear shift toward originalist methodology in religion cases.

Similarly, pending cases about public funding of religious schools and religious displays often invoke originalist arguments. Proponents of school voucher programs frequently cite the Virginia Statute for Religious Freedom and the writings of Madison to argue that aid to religious schools is permissible as long as it flows to parents rather than directly to churches. Opponents counter that such aid violates the original meaning because it funnels taxpayer money to religious instruction, which several states forbade in the founding era. The debate is far from settled, but originalism provides a powerful lens through which these disputes are examined.

Conclusion: Originalism as a Guide to the Establishment Clause

Originalist approaches to the Establishment Clause offer a way to ground modern constitutional disputes in the text and history of the First Amendment. By returning to the framers’ understanding, originalists hope to provide consistent and principled rules that respect the interplay between religion and government. While critics charge that originalism can be overly rigid and selective, its influence on the Supreme Court and legal scholarship is undeniable. As the Court continues to reshape Establishment Clause jurisprudence, understanding originalist reasoning will remain essential for students, lawyers, and citizens alike.

For further reading, see the National Constitution Center’s interactive constitution on the First Amendment, Cornell Legal Information Institute’s overview of the Establishment Clause, and Pew Research Center’s analysis of public opinion on church-state issues.