What Does the Constitution Really Say About Religion?

If you want the best possible example of the gap between the original intent of the Constitution and what the Supreme Court has misinterpreted the Constitution to mean, it would be difficult to find a better example than the First Amendment’s "Congress shall make no law respecting an establishment of religion."

When Congress passed the First Amendment, many states had a church establishment that enjoyed special legal status and even direct funding from taxes. In some states it was the Anglican Church; in others, it was the Congregational Church. In many states, you had to be a Christian, sometimes specifically a Protestant, to hold public office. Had Americans been of one Protestant denomination, we might well have had a single national church. As Noah Webster observed, "a singular concurrence of circumstances, the possibility of establishing this influence, as a pillar of government, is totally precluded."

Even state constitutions that prohibited state establishment of a particular church, such as New Jersey (1776), specified that "no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles." Catholics, Muslims, Jews -- they had no such guarantee. This isn’t the ACLU’s prohibition of an “establishment of religion,” is it?

The first Congress said essentially nothing about what that prohibition on establishment of religion meant -- suggesting that there was general agreement -- but what was that agreement? We can get some idea by looking at what Congress and the president did. As the Library of Congress’s recent exhibit about religion in the early republic points out:

It is no exaggeration to say that on Sundays in Washington during the administrations of Thomas Jefferson (1801-1809) and of James Madison (1809-1817) the state became the church. Within a year of his inauguration, Jefferson began attending church services in the House of Representatives. ... Worship services in the House -- a practice that continued until after the Civil War -- were acceptable to Jefferson because they were nondiscriminatory and voluntary. ... Throughout his administration Jefferson permitted church services in executive branch buildings. The Gospel was also preached in the Supreme Court chambers. ... In attending church services on public property, Jefferson and Madison consciously and deliberately were offering symbolic support to religion as a prop for republican government.