May 14, 2009

Shifting Boundaries: The Establishment Clause and Government Funding of Religious Schools and Other Faith-Based Organizations

Public Funding of Religious Activity in 18th-Century America

Before the American Revolution, most of the original colonies used tax dollars to support religious activity. Indeed, several colonies chose a single church as their officially established religion, and these churches enjoyed many privileges not extended to other religious groups. For instance, the Anglican Church enjoyed government support in some of the Southern colonies, while the Congregational Church held sway in New England. Other colonies supported religion more generally by requiring citizens to pay taxes that would be used partially to fund religious institutions; these colonies allowed individual taxpayers to direct their payments to the Protestant denomination of their choice. Only Delaware, New Jersey, Pennsylvania and Rhode Island did not compel any taxpayer support for religion.

During and immediately after the American Revolution, however, government funding of religion came under attack. Religious minorities, including Baptists and Methodists, argued that government support of religion infringed upon the liberty that the colonists fought to win from the British crown. In response, defenders of religious establishments countered that the government needed to fund religion because public virtue depended on vigorous religious institutions, which, they argued, could not survive with purely private support. But between 1776 and 1790, critics of religious establishments gained the upper hand, as Maryland, New York, North Carolina, South Carolina and Virginia adopted constitutional provisions prohibiting the establishment of religion.

The debate in Virginia profoundly influenced future discussions about public funding of religion; indeed, Virginia’s experience served as the primary historical example in the Supreme Court’s pivotal Everson decision more than 160 years later. The debate in Virginia arose after the state’s General Assembly sought in 1784 to pass a bill that would provide public funds to support teachers of Christianity. Future presidents James Madison, a member of the Virginia House of Delegates at the time, and Thomas Jefferson, then-U.S. minister to France and previously the governor of Virginia, urged the legislature not to pass the bill. In a famous 1785 pamphlet, Madison made several key arguments against the bill, including the claim that religion will flourish only if it is supported entirely by voluntary contributions. The Virginia General Assembly rejected the bill to support Christian teachers and, one year later, adopted Jefferson’s Act for Establishing Religious Freedom, which he had written in 1779, the same year he became Virginia’s governor. The measure provided that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.”

In 1789, the newly formed U.S. Congress adopted the Bill of Rights, including the Establishment Clause. The states ratified the Establishment Clause and other proposed constitutional amendments in 1791. Many scholars believe that the states ratified the Establishment Clause under the impression that the clause barred Congress both from establishing a national religion and from interfering with existing state establishments. And,indeed,until 1947 the U.S. Supreme Court did not interpret the clause to apply to state and local governments.