The Constitutional Case for State Religion

Why the Establishment Clause Resists Incorporation

It is beyond common knowledge that the establishment of any official religion is anathema to American jurisprudence. Far from mere religious pluralism, our Founding Fathers intended to build “a wall of separation between church and state,” finding such a chasm necessary to prevent theocratic tyranny (Thomas Jefferson, Letter to Danbury Baptists (1908)). In fact, in his Memorial and Remonstrance Against Religious Assessments, First Amendment author James Madison argued that religion in the public sphere will only lead to oppression, corruption, bigotry, persecution, and the elimination of individual liberties. Such sentiments finally manifested in the First Amendment to the U.S. Constitution, wherein it is stated:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. U.S. Const. amend. I.

The codification of Jefferson’s “wall of separation” marked the establishment of one of the most fundamental values in American history. In fact, the separation of Church and State is so ubiquitous that nearly any non-American, formally educated or not, recognizes it as intrinsic to America’s core principles. It begs the question, then: if separation between Church and State is so universally recognized, and if First Amendment jurisprudence overwhelmingly condemns their intermingling… then why does a Supreme Court Justice argue that U.S. states can establish official religions?

Easy to overlook in the dissents and concurrences of the myriad Establishment Clause cases heard by the Supreme Court, Justice Clarence Thomas has routinely maintained that the clause’s incorporation via the Fourteenth Amendment to the states is improper. Put plainly, Justice Thomas believes that while the First Amendment forbids the federal government from establishing an official religion, states are free to establish their own state religions (Elk Grove Unified School District v. Newdow, 542 U.S. 1, (2004) (Thomas, J., concurring).

Therein lies the point of this article. I hope to investigate the constitutional argument of allowing states to establish their own official religions by examining both the incorporation doctrine and post-Fourteenth Amendment case law. In the end, I conclude that 20th century Establishment Clause precedent notwithstanding, the First Amendment neither forbade states from establishing state religions, nor is it incorporable through the Fourteenth Amendment in the modern day. As an aside, I usually don’t like to write about law in my free time, but I thought this was an interesting and under-discussed nugget of constitutional jurisprudence. (I’m going to off-and-on abide by Bluebook citation requirements, depending on how lazy I feel).

A Brief History of State Religion and the Constitution

By the time our constitution was introduced, at least six states had official religions. Massachusetts, Connecticut, and New Hampshire established the Congregational Church; Virginia, North Carolina, and New York established the Anglican Church; and states like Maryland, Pennsylvania, Delaware adopted religion-specific laws based on their respective denominations. These states slowly began to “disestablish” official religions throughout the 19th century, with Massachusetts being the last in 1833. Their very existence, however, aligns with the well-established principle that pre-Fourteenth Amendment constitutional principles did not apply to the states. Put plainly, the very existence of officially established state religions in the 19th century proves that the First Amendment does not prevent it. State efforts to disestablish came at their own discretion, not some constitutional obligation.

Nevertheless, the Bills of Rights inapplicability to the states came crashing down with the Fourteenth Amendment. In a legal doctrine called “incorporation,” parts of the first ten amendments are made applicable to the states through the Due Process Clause of the Fourteenth Amendment. It reads, in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. U.S. Const. amend. XXIV, §1.

Whereas the Supreme Court previously held the Bill of Rights was clearly intended to limit only the federal government (Barron v. City of Baltimore, 32 U.S. 243 (1833)), the Fourteenth Amendment sparked a litany of cases in which many rights were incorporated to the states. However, not all rights were thus incorporated. Rather, the Supreme Court carefully selected only those rights which are essential to due process - both substantive and procedural - pursuant to the text of the Fourteenth Amendment. In simple terms, not all of the first ten amendments are incorporated to the states.

The Third (quartering of soldiers), the Seventh (right to jury trial in civil cases), the Ninth (protection of unenumerated rights), and the Tenth (powers reserved by the states) Amendments are not incorporated to the states. Likewise, the Fifth and Sixth Amendments have only been partially incorporated, as the right to indictment by grand jury and the right to a selection of jury from residents of crime location, respectively, have not been incorporated. As such, we can see that incorporation of the Bill of Rights to the states is not automatic.

How, then, can we understand which rights are incorporated and which are not? In Hurtado v. California, the Supreme Court reasoned that “if in the adoption of that [Fourteenth] Amendment it had been part of its purpose to perpetuate the institution of the grand jury in all the States, it would have embodied, as did the Fifth Amendment, express declarations to that effect.” Hurtado v. California, 110 U.S. 516, 534 (1884). Put plainly, since grand juries were not affirmatively stated as necessary to Due Process in the Fourteenth Amendment, its incorporation to the states is neither necessary nor proper. More importantly, in Twining v. New Jersey, wherein the incorporation doctrine was first established, the Court reasoned that:

“It is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.” Twining v. New Jersey, 211 U.S. 78, 99 (1908).

As Twining and Hurtado explain, the text of the Fourteenth Amendment makes it explicitly clear that prohibitions of state action are limited to only violations of due process, no further and no less. It is for this reason that much of the Bill of Rights remains non-incorporated: they do not involve deprivation of life, liberty, or property, without due process of law. We can clearly see, then, that incorporation is only proper when the right in question is fundamental to due process.

Incorporating the Establishment Clause

The First Amendment’s Establishment Clause was incorporated to the states by Everson v. Board of Education in 1947. Holding, in relevant part, that:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another... That wall must be kept high and impregnable. We could not approve the slightest breach.” Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).

Everson thus laid the foundations for a near-century of Establishment Clause litigation wherein myriad state actions were scrutinized, outlawed, and deemed outright “un-American.” See Engel v. Vitale, 370 U.S. 421 (1962) (holding that a non-sectarian prayer in school violated religious liberty), Wallace v. Jaffree, 472 U.S. 38 (1985) (holding that a moment of medication or voluntary prayer subtly endorsed religion, which is unconstitutional), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) (holding that a student-initiated prayer before football games created an atmosphere of state-endorsed religiosity, which is unconstitutional); But see Kennedy v. Bremerton School District, 597 U.S. 507 (2022) (a coach’s pre-game prayer was not an official endorsement of religion, prohibiting it would violate the Free Exercise Clause).

While criticized by some conservative legal scholars throughout the 20th century, it was not until 2002 that the Establishment Clause’s incorporation would come under national spotlight. In Zelman v. Simmons-Harris, Justice Clarence Thomas wrote, in a concurring opinion, that:

The Establishment Clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion.” On its face, this provision places no limit on the States with regard to religion. The Establishment Clause originally protected States, and by extension their citizens, from the imposition of an established religion by the Federal Government. Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring)

Justice Thomas pushed further in Elk Grove Unified School District v. Nedow, stating “the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.” Elk Grove Unified School District v. Nedow, 542 U.S. 1, 46 (U.S. 2004) (Thomas, J., concurring). And again in Van Orden v. Perry, asserting “the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect any individual right.” Van Orden v. Perry, 543 U.S. 677, 703 (U.S. 2005) (Thomas, J., concurring).

In the aforementioned cases, and various others, Justice Thomas reasons that the structural guarantee of the Establishment Clause can be preserved even with the incorporation of protections that prevent restricting individuals’ religious or non-religious observances. Put plainly, a state’s establishment of an official religion, or any pro-religious acts, do not necessarily infringe on the rights of the individual. For example, the mere display of the Ten Commandments does not force anyone to anything. So long as each individual can freely exercise their own religion without state interference, state promotion of religion has no due process ramifications.

As evidence, think back earlier this article when I mentioned that certain states used to have official religions. If states held official religions as late as 1833 (disestablishing on a voluntary basis, not any sense of legal obligation), then clearly such establishments were not contrary to the founding. In fact, the language of the First Amendment goes further to prove that such establishments need protection from federal interference. In forbidding Congress from making any law “respecting an establishment of religion,” the language not only prohibits Congress from affirmatively establishing a national religion, but also prohibits Congress from making laws that meddle with state establishments.

If the First Amendment thus contains structural protections for state religious establishments, it makes no sense to incorporate it to the states. Just as nonsensical would it be to incorporate the Tenth Amendment’s state power doctrine back to the states, so too would it be illogical to enforce the protection of state religious establishments from federal overreach back to the states.

Even if one conceded (wrongly) that the Establishment Clause contains no protections for state religious establishments, we must argue in the alternative that such establishments do not affect due process. In the section previous, it was made abundantly clear that incorporation is only proper if the right in question protects against the deprivation of liberty without due process. This is to say plainly, a right can only be held against state governments if it protects an individual in terms of due process. (Twining, Hurtado).

As Justice Thomas points out, state religious establishments do not necessarily infringe upon an individual’s free exercise. In the case of Wallace, a moment of silence for “meditation or prayer” neither forces an individual to pray to a certain God nor even pray at all. Consequently, the only manner in which the restriction of state religious action is proper is when it actually infringes, enforces, or prohibits one’s individual exercise of their own religion/irreligion. As such, decisions like the Oregon Supreme Court’s Lowe v. City of Eugene, which erroneously outlaw mere displays of crosses on public land for the simple reason of “religious endorsement,” have no basis to claim that such displays prohibit an individual’s free exercise of their own religion/irreligiosity.

Conclusion

This article, nor any future legal/constitutional analyses, is neither an endorsement for a liberal constitution nor the current governmental system we “enjoy.” I do not seek to work within the liberal framework, as my previous articles should make clear. I am just writing this for fun/the sake of it.

As I said in the outset, this article is just a hypothetical investigation into the constitutional jurisprudence surrounding the First Amendment. At present, Texas, for example, cannot simply declare that Christianity is its official state religion. A wealth of post-WWII Establishment Clause jurisprudence clearly precludes it.

However, I hoped to correct one of the most widely misunderstood aspects of our Republic. Remembering that freedom of religion is not freedom from religion, it is beyond clear that state religious establishments are neither anathema to our constitution, nor should they be. As many as six states established official religions (more if you count explicitly sectarian laws), and the case law supporting the incorporation of the Establishment Clause simply does not add up.

It is abundantly evident that selective incorporation only involves those rights which are necessary for due process of law within the states. The Establishment Clause, then, clearly only prohibiting the U.S. Congress from making laws related to a National religious establishment, does not involve the due process of law. Therefore, a state may establish an official state religion, providing that such an establishment does not force, forbid, or otherwise interfere with an individual’s free exercise of their own religion.

IC XC NIKA