Constitution of the United States/First Amend./Religion
First Amendment: Religion
Overview of the Religion Clauses (Establishment and Free Exercise Clauses)[edit | edit source]
The first two provisions of the First Amendment, known as the Religion Clauses, state that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The Establishment and Free Exercise Clauses were ratified as part of the Bill of Rights in 1791 and apply to the states by incorporation through the Fourteenth Amendment. Together with the constitutional provision prohibiting religious tests as a qualification for office, these clauses promote individual freedom of religion and separation of church and state.
The Supreme Court has acknowledged that the Religion Clauses "are not the most precisely drawn portions of the Constitution." The Framers' goal was "to state an objective, not to write a statute." The clauses are "cast in absolute terms" and either, "if expanded to a logical extreme, would tend to clash with the other." Accordingly, the Court has said that "rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited." The breadth of the clauses has allowed debates over their proper scope since ratification. It has also led to some "internal inconsistency" in the Supreme Court's opinions interpreting these clauses, as well as interpretations that have shifted over time.
The following essays discuss the historical background of the Religion Clauses, including a discussion of colonial religious establishments and the shift in early America towards greater religious freedom. Next, essays address how both clauses prevent the government from interfering in certain religious disputes. Essays then examine, in turn, Supreme Court interpretations of the Establishment Clause and the Free Exercise Clause. Finally, two essays explore the relationship between the two Religion Clauses, as well as the relationship between the Religion Clauses and the First Amendment's Free Speech Clause.
One preliminary issue broadly relevant across Religion Clause jurisprudence is what the First Amendment means when it refers to "religion." Some early cases suggested that courts might determine what is properly considered to be "religion." In an 1890 case rejecting a Free Exercise Clause challenge to a law disenfranchising polygamists, the Court said calling the advocacy of polygamy "a tenet of religion" would "offend the common sense of mankind." Later cases, however, seemed to retreat from this suggestion as they restricted the ability of the government, including courts, to judge the legitimacy of religious beliefs. Nonetheless, the Religion Clauses extend only to sincere religious activities, and in evaluating constitutional claims, the government may investigate whether a person's beliefs are insincere and whether they are secular, stemming from political, sociological, or philosophical views rather than religious beliefs.
A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected. One 1965 case noted "the ever-broadening understanding of the modern religious community," discussing conceptions beyond even traditional theism. In an Establishment Clause case decided a few years earlier, the Court had stated that the government may not "aid all religions as against non-believers," or "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."
Historical Background[edit | edit source]
Introduction to the Historical Background on the Religion Clauses[edit | edit source]
As the Supreme Court has recognized, many colonists left Europe and settled in America "to escape the bondage of laws which compelled them to support and attend government-favored churches." Scholars have described the modern concepts of "religious liberty" and "separation of church and state" as originating with the development of the United States. The Framers of the Religion Clauses built upon almost two centuries of historical developments that shaped this American model of religious freedom after the arrival of the earliest colonists. During these formative years--and even after the First Amendment's ratification--the concept of freedom of religion lacked a fixed meaning. The concept evolved significantly over the colonial period in tandem with political and social movements. Accordingly, while the Supreme Court has often suggested that colonial and Revolutionary history is important in determining the meaning of the Religion Clauses, jurists and historians have disagreed about which history appropriately informs the clauses, given the complexity and variability of that history.
The colonists left a European society in which church and state were closely interconnected. Historically, political leaders throughout the world believed that a government could not legislate to preserve public morals or maintain civil order unless the state based its rule in a religion that was followed by the populace. The features of historic state-sponsored religions, known as religious "establishments," included a government-recognized state church; laws outlining religious orthodoxy or church governance; compulsory church attendance; state financial support for the church; proscriptions on religious dissent; the limitation of political participation to the state church's members; and the use of churches for civil functions such as education or marriage.
Even in colonial times, there were debates about what types of state support for religion created a religious "establishment," and what level of state support was appropriate. Although some of the colonists may have fled religious persecution in England and other European countries, many New World colonies initially mandated the practice of a specific religion and persecuted those who did not comply. Some of the colonies that did not designate a single official religion still limited citizenship to Christians and adopted other hallmarks of an established state religion.
During the colonial period and Revolution, however, some colonies began to recognize broader conceptions of religious liberty and embrace greater separation between church and state. Delegates to the Continental Congress expressed diverse views on the issue in debates leading up to the adoption of the First Amendment's Religion Clauses. Although the Religion Clauses immediately constrained the federal government, some states continued to support religious establishments even after the First Amendment's ratification. Nonetheless, all states had disestablished religion decades before the Supreme Court held that states were legally obligated to comply with the Religion Clauses through the Fourteenth Amendment, reflecting continued debates and shifting attitudes towards religious liberty.
England and Religious Freedom[edit | edit source]
Religious freedom has played a central role in the mythos of the United States' Founding. Accordingly, the Supreme Court has sometimes looked to state sponsorship of religion prior to the Founding to determine what the drafters of the First Amendment's Religion Clauses intended to reject. While a unified church and state was once the dominant governance model worldwide, the Church of England provides one particularly salient example of a state religion that was familiar to the Founders.
King Henry VIII established the Church of England through the Act of Supremacy in 1534, and Queen Elizabeth reestablished the Church in 1559 after a period of political and religious turbulence. The Church of England's establishment placed the country's ecclesiastical courts under domestic control rather than under the control of the Pope. These ecclesiastical courts, which operated in parallel with England's civil courts, had jurisdiction over purely religious matters such as spiritual nonconformity; so-called moral offenses such as drunkenness or adultery; and disputes over marriages, tithes, wills, and defamation.
Following the end of the English Civil War in 1651, four acts collectively known as the Clarendon Code reentrenched the church. One of these laws, the Act of Uniformity of 1662, prescribed a common form of worship and required ministers to follow this form of worship to hold religious office. Other laws limited officeholding to Anglicans and restricted non-Anglican worship. The ecclesiastical courts were also restored in 1661 with largely unchanged jurisdiction, although use of the courts declined significantly over the ensuing decades.
Thus, English laws preferred members of the established Church of England, excluded dissenters, and commingled ecclesiastical and civil functions. The government dictated official modes of worship, claimed jurisdiction over areas such as education and marriage that had previously been governed by the Roman Catholic Church, required membership in the established church to be considered a legal citizen, and criminalized religious dissent. Nonetheless, the government did not view the Act of Uniformity as violating freedom of conscience: in England's view, while it dictated public observance of religion and prevented dissenters from undermining the established church, it did not dictate private beliefs.
The Toleration Act of 1689 lifted criminal penalties for nonconformists' public worship if the dissenters took certain oaths or declared their loyalty to the crown and professed their Christian belief. However, the law did not extend the right of public worship to Roman Catholics or other non-Protestant dissenters, and all non-Anglicans continued to be barred from holding public office. Furthermore, the Church of England retained its special status. England considered the Toleration Act to apply directly to the colonies. As discussed in subsequent essays, this Act granted more religious liberty than some of the colonies did at the time and influenced those colonies to move toward further religious freedom.
State-Established Religion in the Colonies[edit | edit source]
At least initially, the colonies largely continued the historical practice of having state-established religion in America; although not every colony had one officially designated state religion, every colonial government had some elements of a religious "establishment," as defined in an earlier essay. Nonetheless, even the colonies that did designate and support an official religion viewed their own governments as quite different from the English system.
The first English colony, Virginia, illustrates the evolving approach to government and religion. Virginia established the Church of England as the colony's official church. Early governors adopted martial laws requiring daily worship and prohibiting blasphemy, among other provisions prescribing religious order. The government supported and required conformity to the established church, and church vestries exercised semi-civil political functions. As England reetrenched the established church after the English Civil War, Virginia followed the crown's instructions by supporting the church. Among other provisions, Virginia laws adopted in 1661 and 1662 required colonists to erect churches and support ministers at public expense, prescribed proper forms of worship, and punished those who publicly worshipped outside the established church. However, in contrast to England, the civil government rather than church authorities assumed jurisdiction over marriages, wills, and the appointment of ministers--although such functions were, by law, carried out in accordance with the Church of England's doctrines. The Church of England was also established in the Carolinas, but those colonies tolerated a greater diversity of religious views than Virginia.
The New England colonies of Plymouth, Massachusetts, Connecticut, and New Haven were established by Puritans who similarly provided for colonial government sponsorship of that religion. These colonies sought to establish a unified community operating according to a "pure" religious doctrine that followed "the first Plantation of the Primitive Church" rather than the established Church of England. In Massachusetts Bay, Puritans mandated the construction and financial support of Congregational churches. A public confession of faith was necessary to become a citizen of the colony. Dissenters in these colonies were punished harshly with imprisonment or expulsion, and Massachusetts executed four Quakers between 1658 and 1661. Nonetheless, Puritan churches were independent associations that lacked a central church authority in the manner of the Church of England.
Although New England Puritans operated their colonies according to religious doctrine, they distinguished civil from religious authority, and clergy could exercise authority only over religious affairs. Notably, the Puritans did not create ecclesiastical courts, which they had protested in England. The Puritans' conception of separate spheres of authority, however, did not preclude the civil government from prosecuting idolatry or blasphemy. In the Puritans' view, liberty of conscience did not encompass the liberty to practice religious error. Accordingly, punishing those who deviated from religious doctrine did not violate liberty of conscience, and the government could punish public deviations or errors without improperly invading the church's authority.
There is some debate over whether there was an established church in the colony of New York, in the sense of an officially designated state church. New York, like the Carolinas, demonstrated the conflict between the unpopular established Church of England and other, more popular religious causes. The colony guaranteed free religious exercise to all Christians but required parishes to select ministers and collect taxes to establish and support churches at the local level. Following the Toleration Act's adoption in England, New York excluded Catholics from guarantees of the liberty of conscience and adopted the Ministry Act of 1693, which required "the settling of a ministry." There was debate over whether this act referred only to Anglican ministers, or whether the language was broad enough to allow towns to select other Protestant ministers.
Maryland somewhat similarly faced pressure from the Church of England after initially tolerating more religious diversity. Early colonial leaders were Catholic and seemed to hope that Catholics and Protestants could live together peacefully in Maryland. Lord Baltimore largely ignored his authority from England to build and dedicate Anglican churches, along with requests from Catholics for special government recognition. In 1649, Maryland adopted the Act Concerning Religion, which guaranteed that no person "professing to believe in Jesus Christ" could be troubled in the free exercise of religion--but also decreed strict penalties for blasphemy by non-Trinitarians. However, following political and religious upheaval in the colony, in the late 1600s and early 1700s, the Maryland government adopted laws depriving Catholics of their previously held civil rights and, ultimately, establishing the Church of England.
Colonial Concepts of Religious Liberty[edit | edit source]
Although the colonies did not grant full religious freedom as the concept would be understood today, some nonetheless refrained from establishing an official state-sponsored church and granted more religious liberty than, for example, Virginia or the Puritan colonies.
Rhode Island granted more religious liberty than other New England colonies. Roger Williams, the founder of Rhode Island, was expelled from Massachusetts Bay for criticizing the Puritan government and arguing for a stronger separation between church and state. Williams was himself a Puritan minister who sought to propagate the "true church"--but he believed this could be achieved only by maintaining "a wall of Separation between the Garden of the Church and the Wildernes[s] of the world." In a pamphlet published in England, Williams argued against civil persecution for matters of conscience, writing that civil states should not be the judges of spiritual matters.
Rhode Island's royal charter granted liberty of conscience, providing that no person would be "molested, punished, disquieted or called in question, for any differences in opinion in matters of religion," so long as the person did not "actually disturb the civil peace." To preserve this civil peace, however, the civil government prohibited crimes such as adultery and fornication, and required observance of the Sabbath. Furthermore, the colony adopted laws limiting citizenship and public office to Protestants. Nonetheless, Rhode Island did not adopt criminal laws persecuting the few Catholic and Jewish people residing within the colony, and in contrast to other New England colonies, Rhode Island generally found no reason to charge Quakers with breach of the civil peace.
Pennsylvania also granted some religious liberty. William Penn, a Quaker, founded Pennsylvania in 1681 as a "holy experiment" in religious liberty. Accordingly, the initial laws for the colony granted religious freedom to all theists, providing that anyone who would "acknowledge the one Almighty and eternal God, to be the Creator, Upholder and Ruler of the world" could not "be molested or prejudiced for their religious persuasion, or practice" or "compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever." Although the diverse religious groups in Pennsylvania had social and political disagreements, they did not face persecution from the government for their religious beliefs alone, as they did elsewhere. While this made Pennsylvania unusually tolerant for the era, the colony still limited office-holding to Christians, forbade work on the Sabbath, and prohibited a variety of "offences against God" such as swearing, drunkenness, and fornication.
Virginia's Movement Towards Religious Freedom[edit | edit source]
Virginia, which initially established the Church of England as the church of the colony, began to provide greater religious liberty in the years leading up to the adoption of the Constitution. Toward the end of the colonial period, some Virginia leaders began to look to Pennsylvania as a model for liberty, expressing distaste for Virginia's state-sponsored religious establishment. By the time Virginia adopted its first state constitution in 1776, it provided that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience." Notwithstanding this new constitutional protection for the free exercise of religion, the Church of England remained Virginia's legally established church. There was significant debate over the next decade about whether the state could or should impose a general assessment to support religion, or whether financial support would instead become voluntary.
In 1779, Jefferson introduced his Virginia Statute for Religious Freedom in the Virginia Assembly. Considered by many to be the forerunner of the First Amendment's Religion Clauses, the bill was a sweeping statement for religious freedom and against state establishment of religion. Among other provisions, it stated that compelled financial support for churches and religious test oaths infringed individual liberty and corrupted religion. It further provided that allowing the civil magistrate "to intrude his powers into the field of opinion . . . at once destroys all religious liberty." Accordingly, the bill would have prevented Virginia from compelling anyone "to frequent or support any religious worship" or otherwise burdening a person "on account of his religious opinions or belief." The bill was not adopted in that legislative session.
By contrast, later in 1779, the Assembly considered--but also rejected--a bill that would have established the "Christian Religion" as the state's official religion, required recognized churches to subscribe to certain beliefs, and assessed ministerial taxes. In 1784, Patrick Henry, who had opposed Jefferson's Statute for Religious Freedom, introduced A Bill Establishing a Provision for Teachers of the Christian Religion. The law proposed a general assessment: taxpayers could direct the funds to the "society of Christians" of their choice, and any nondesignated funds would be used "for the encouragement of seminaries of learning" in the state.
While the bill creating an assessment for Christian teachers was being considered, James Madison wrote and circulated his Memorial and Remonstrance Against Religious Assessments, which contributed significantly to the bill's defeat. Madison's Memorial and Remonstrance claimed that the right to free exercise of religion was "unalienable," and that religion was "wholly exempt" from the "cognizance" of civil society. He asserted the bill violated fundamental principles of equality and departed from America's "generous policy" of religious freedom for the previously "persecuted and oppressed." Other opponents of the assessment raised concerns about the rights of non-Christians, a position that was still somewhat uncommon in the colonies at that time. Following this public opposition to Henry's bill, Madison reintroduced Jefferson's bill for establishing religious freedom. The Statute for Religious Freedom was enacted in 1786, finally disestablishing religion in the state.
Although Virginia's experience does not represent the full picture of the early American experience with religious liberty, it helped set the stage for the adoption of the Religion Clauses. While Rhode Island, Pennsylvania, and (eventually) Virginia moved towards greater religious freedom, other states--and some within those states--continued to support state establishments and a more limited view of religious liberty.
Continental Congresses and Religious Freedom[edit | edit source]
The Continental Congresses of 1784-1789 addressed a number of issues relating to religion. In some instances, the Congresses' work reflected the ongoing debates and shifting norms relating to church and state.
One of the grievances that the First Continental Congress identified in its 1774 "Declaration and Resolves" addressed to Great Britain was the Quebec Act. The congressional resolution described this Act as "establishing the Roman Catholic religion" in Quebec, a province which was expanded to include parts of the modern Midwest. On its face, the Quebec Act did not establish a religion in the sense of requiring adherence or compelling support. Instead, it stated that Roman Catholic citizens in the province "may have, hold, and enjoy, the free Exercise of the Religion of the Church of Rome, subject to the King's Supremacy." The colonists saw this parliamentary sanction for the Catholic Church in the expanded territory, albeit limited, as a threat. Nevertheless, only about two weeks after adopting the Declaration and Resolves, the Continental Congress wrote a letter "to the Inhabitants of the Province of Quebec," arguing that Great Britain had violated their rights by altering the province's government and making religious liberty for Catholics a matter of the King's grace. The letter stated that the Quebec Act's guarantee of "liberty of conscience in . . . religion" was a poor substitute for the God-given rights the province had been denied, for the English version of the right was a "precarious" one subject to "arbitrary alterations." These somewhat contradictory stances likely reflected political considerations.
Members of the First Continental Congress also faced appeals for freedom of conscience from within their own territory. Notably, a group of Massachusetts Baptists complained of persecution to delegates of the Continental Congress in 1774. John Adams, in his diary, wrote that he was "indignant . . . at seeing [his] State and her Delegates thus summoned before a self created Trybunal." According to Adams's account, one Pennsylvanian asserted that New England's stance on "Liberty of Conscience" was standing in the way of forming "a Union of the Colonies." The dissenters' primary grievances seemed to be taxes for the support of the established churches. The Baptists objected to the tax on grounds of conscience. In response, John and Samuel Adams apparently argued that Massachusetts had "the most mild and equitable Establishment of Religion"--but in resisting any commitment to further change, John Adams reportedly said that the objectors "might as well expect a change in the solar system, as to expect [Massachusetts] would give up their establishment."
In other matters, the Continental Congress recognized and seemed to support religion. As the Supreme Court has noted, "the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain." According to a contemporaneous account from John Adams, there was some opposition to the first motion to open a session with prayer given the religious diversity of the representatives, until Samuel Adams "said he was no Bigot, and could hear a Prayer" from someone of another faith. The Continental Congress also, for example, occasionally declared days of fasting and thanksgiving, and voted to import Bibles for distribution, although it never appropriated the funds for this latter activity.
In contrast, the Second Continental Congress recognized and attempted to accommodate pacifists during the Revolutionary War, stating that Congress intended "no violence to their consciences" and asking pacifists to contribute by doing only what they could "consistently with their religious principles." The Northwest Ordinance, adopted by the Confederation Congress in 1787, provided that no person in the territory could "be molested on account of his mode of worship or religious sentiments" so long as he was acting "in a peaceable and orderly manner." Furthermore, in 1785, the Confederation Congress rejected a proposal that would have set aside lots in the western territory for the support of religion, with James Madison saying the provision "smell[ed] . . . of an antiquated Bigotry."
Overall, the roots of both the Establishment Clause and the Free Exercise Clause and the tension between them are evident in the period immediately prior to ratification of the Constitution. While there was some movement towards greater religious liberty and separation of church and state, continued support for religious activity was seen as a basic part of the fabric of society. Even in protecting modes of worship in the territories, the Northwest Ordinance provided that "religion, morality, and knowledge" were "necessary to good government" and should "be encouraged."
Constitutional Convention, Ratification, and the Bill of Rights[edit | edit source]
The Constitution adopted by the Constitutional Convention in 1787 was largely silent on matters of religion. Nonetheless, matters of religious freedom remained on the Founder's minds. By 1787, a number of states had adopted constitutions containing some protections for religious freedom, though not all were as broad in scope as the ratified First Amendment. Some state constitutions seemingly limited protections for religious freedom to certain types of believers. Furthermore, as discussed elsewhere, some of those states still supported religious establishments, even as other constitutional provisions limited some aspects of state establishments. North Carolina's constitution, for example, granted freedom of conscience and forbade an "establishment of any one religious church or denomination in this State, in preference to any other," but further provided that the constitution did not "exempt preachers of treasonable or seditious discourses, from legal trial and punishment."
During the debates over ratifying the Constitution, both proponents and opponents argued for the addition of a bill of rights, frequently citing religious freedom as one of the rights that should be expressly protected. Seven states considered amendments expressly protecting religious freedom, and four states ratified the Constitution only after officially recommending such amendments. Virginia, for example, proposed an amendment stating that "all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established by Law in preference to others."
James Madison, a key figure in the framing and adoption of the Constitution and the First Amendment, initially considered a bill of rights unnecessary. Among his objections to such an enumeration, he was concerned that express declarations "of some of the most essential rights" would be stated too narrowly. Focusing specifically on "the rights of Conscience," he noted that some states wanted to deny equal rights to non-Christians, suggesting any public definition of religious freedom would be too narrow. Madison, however, was ultimately persuaded to introduce the amendments that would become the Bill of Rights.
On June 8, 1789, Madison introduced a proposed constitutional amendment in the House of Representatives which read: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." He further proposed an amendment that expressly prohibited states from "violat[ing] the equal rights of conscience." Explaining this second provision, Madison believed "every Government should be disarmed of powers which trench upon those particular rights," and wrote that "State Governments are as liable to attack these invaluable privileges as the General Government is."
On August 15, the House considered a version of the amendment that read: "no religion shall be established by law, nor shall the equal rights of conscience be infringed." Debate revealed differences of opinion on what such an amendment should accomplish, but some Members expressed concern that the amendment would unduly prohibit government support for religion--even by the states--and thereby abolish religion altogether. Two days later, the House considered the amendment providing that "no State shall infringe the equal rights of conscience," along with other rights. Madison "conceived this to be the most valuable amendment in the whole list," again arguing it was necessary to prevent both state and federal governments from infringing "these essential rights." Ultimately, the version passed by the House on August 24 read: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed." The House also passed the amendment providing that "[n]o state shall infringe . . . the rights of conscience."
Debate in the Senate was not recorded, but on September 3, 1789, the Senate considered the constitutional amendments adopted by the House. The Senate adopted amendments rewriting the first provision to read: "Congress shall make no law establishing one religious sect or society in preference to others." On September 9, the Senate combined the religion amendments with the other rights that would ultimately be part of the First Amendment into a provision reading: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech . . . ." This version was adopted and sent to the House the same day. The House amendment guaranteeing the rights of conscience against the states was not approved by the Senate.
A joint committee was appointed to resolve the differences between the Chambers, and although there is no surviving record of the committee debate, on September 24, 1789, it reported the text that would become the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof of speech . . . ." On December 15, 1791, this language was ratified by the requisite number of states.
Early Interpretations of the Religion Clauses[edit | edit source]
Even after the First Amendment was ratified and the Founders almost universally embraced the general principle of liberty of conscience, significant disagreement remained as to the scope of the prohibition on establishment and the protections of free exercise.
At the time of the Revolution, the majority of the states retained at least some elements of religious establishments, including requiring church attendance, collecting tithes, and burdening the rights of religious dissenters. States did not become subject to the First Amendment when it was adopted in 1791, and accordingly had more leeway to regulate on the subject of religion, but the movement to disestablish official state religions nonetheless continued to gain support as views changed about the appropriate role of church and state. In 1791, one prominent minister, arguing against state-established religions, noted that by that time, most states had "no legal force used about religion, in directing its course, or supporting its preachers." Seven disestablishments of state sanctioned religions occurred after the First Amendment's adoption, with the last, Massachusetts', occurring in 1833. This gradual disestablishment was accompanied in many cases by civil regulation of the corporate forms and property rights of the churches, eventually leading to questions about whether such regulation was contrary to constitutional guarantees of religious liberty.
Maryland's experience serves as one example of this trend. The state's 1776 constitution extended legal toleration to all Christian sects but required officeholders to declare Christian belief and authorized the state legislature to impose a general "tax for the support of the Christian religion." Maryland had thus abandoned its Church of England establishment but continued to generally support Christianity and adopted laws regulating the Anglican church. However, a 1784 bill that would have levied a tax for the support of ministers was defeated. The bill's opponents argued that it would have preferred certain sects, impermissibly set up the legislature as the judge of acceptable worship, and set up a confrontation with sects such as Quakers that would refuse to pay. In 1810, Maryland amended its constitution by providing that it would no longer be lawful to tax citizens to support religion. However, the state's constitution continued to require officeholders to declare a general belief in existence of God until 1961, when the provision was ruled unconstitutional by the Supreme Court.
These diverse and shifting views over religion were also reflected at the federal level. For example, early Congresses employed chaplains and supported proclamations for national days of thanksgiving. By the 1800s, however, James Madison and Thomas Jefferson had seemingly changed their mind on the propriety of government prayer. Toward the end of his presidency, Jefferson explained that he would not recommend a day of prayer because even voluntary language suggested an authority over religion that, in his view, the government did not possess. James Madison eventually concluded that establishing a congressional chaplain was a "palpable violation" of the Constitution. Further, although as President, he had issued proclamations for national days of prayer and thanksgiving, Madison believed these religious proclamations were similarly problematic. Madison stated that he had issued the proclamations only at Congress's request, and had used language intended "to deaden as much as possible any claim of political right to enjoin religious observances" by referring to "the voluntary compliance of individuals."
Another example of the debate over the separation of church and state involved an 1811 bill that would have incorporated the Protestant Episcopal Church in the District of Columbia. Then-President Madison vetoed the bill, stating that it violated the Establishment Clause by enacting rules for the church's "organization and polity," giving a "legal force and sanction" to certain articles of church administration and actions. The House of Representatives failed to override the veto. In the debate preceding that vote, some proponents of the bill argued that it did not violate the Establishment Clause because it did not establish a National Church such as the Church of England. Another Member argued that if the debated bill infringed the Constitution, then Congress had similarly violated the Constitution by appointing and paying chaplains.
Other debates during this period focused on whether the United States could be considered a Christian nation. In the 1797 Treaty of Tripoli, the government assured the Muslim state of Tripoli that because "the United States of America is not in any sense founded on the Christian Religion, . . . no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries." Beginning in the nineteenth century, Congress failed to adopt a variety of proposals that would have amended the Constitution to describe the United States as a Christian nation, or the federal government as a Christian one.
Religious Disputes[edit | edit source]
Overview of Government Resolution of Religious Disputes[edit | edit source]
Taken together, the Religion Clauses create a separation between church and state. The preamble to the Virginia Statute for Religious Freedom, drafted by Thomas Jefferson, outlined the Founder's view of the separate spheres of authority: "the civil magistrate" should not interfere with religious belief, but should be able "to interfere when principles break out into overt acts against peace and good order."
Under a doctrine sometimes called "religious autonomy" or "ecclesiastical abstention," the Supreme Court has long held that these principles require civil courts to refrain from adjudicating ecclesiastical disputes. Nonetheless, so long as they avoid "determining ecclesiastical questions," civil courts can resolve disputes between religious parties by applying "neutral principles of law."
For example, churches may sometimes split into factions after disagreeing about religious doctrine, and those factions may then further dispute which group is entitled to possess church property. The Supreme Court has said that religious organizations are subject to the same legal protections and constraints as "other voluntary associations" and may come to court for adjudication of their property rights. However, in the course of adjudicating such a property dispute, the courts must refrain from resolving any "underlying controversies over religious doctrine," and may only apply "neutral principles" of property law. Accordingly, the government may not resolve such disputes by evaluating which faction's beliefs more faithfully reflect the religious order's beliefs. By contrast, if a deed or other legal document expressly indicates which group is entitled to the property, a court may enforce that legal instrument, so long as it "defer[s] to the [religious body's] resolution" of any religious issues.
Doctrinal Basis of Government Resolution of Religious Disputes[edit | edit source]
Since at least the early 1800s, the Supreme Court has resolved religious entities' legal disputes over property rights, focusing in part on the legal rights attached to the corporate form of the religious bodies. In Watson v. Jones, issued in 1871, the Court reiterated that "religious organizations" come before the court in the same posture as other entities organized for charitable purposes, saying that "their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints." However, the Supreme Court also articulated limits on civil courts' ability to adjudicate religious disputes, although at first it did not expressly ground these limitations in the Constitution's Religion Clauses.
Specifically, Watson involved a religious schism and a property dispute. After some members of a congregation disagreed with the national church's anti-slavery views, the local church separated "into two distinct bodies, with distinct members and officers, each claiming to be the true Walnut Street Presbyterian Church" and entitled to its property. A federal court had concluded that the faction recognized by the national governing body was entitled to the property, and the Supreme Court affirmed. The Court said that where a congregation is subordinate to "superior ecclesiastical tribunals," civil courts should defer to the resolution of any religious issues by the "church judicatories." More broadly, the Court said that civil courts may not adjudicate any matter "which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them." Allowing these decisions "of ecclesiastical cognizance" to be reviewed by secular courts "would lead to the total subversion" of the religious unions, which the Court suggested would be inconsistent with the guarantees of free exercise of religion and no religious establishment. The Supreme Court said that United States laws created these guarantees, but did not specifically reference the Religion Clauses as the Court originally understood the Religion Clauses to apply only to the federal government. Although the adoption of the Fourteenth Amendment in the 1860s imposed the First Amendment's limitations on the states, at the time of Watson's decision in 1871, the Supreme Court had not yet recognized this incorporation of the Religion Clauses.
The Supreme Court expressly grounded Watson in the First Amendment in Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church. Kedroff was decided in 1952, after the Court had expressly held the First Amendment to be incorporated against the states. After the Russian Revolution prompted disputes over the governance of the North American Diocese of the Russian Orthodox Church, New York enacted a law transferring control of the state's Russian Orthodox churches from the "central governing hierarchy" in Russia to the Russian Orthodox Church in America. The Supreme Court held in Kedroff that this law violated the Constitution by prohibiting "the free exercise of religion" and breaching the "rule of separation between church and state." The Court highlighted that the state statute required churches in New York to "conform" to the religious doctrine "of the Eastern Confession." It also expressed concern that the state's action was apparently based on a determination that the Russian Orthodox Church in America would more faithfully effectuate the purposes of the religious trust. Ultimately, the Court said that the Constitution protected the "freedom to select the clergy, where no improper methods of choice are proven."
The Court remanded the Kedroff case back to New York state court, which again transferred control of state churches to the Russian Church in America--but this time, on grounds of the common law rather than the state statute. When the dispute returned to the Supreme Court in Kreshik v. St. Nicholas Cathedral of Russian Orthodox Church, the Court held that the state court had acted unconstitutionally because, like the state statute, the court's common law decision was impermissibly premised on the idea that the Russian Orthodox Church in America would more faithfully carry out the religious trust. Kreshik therefore confirmed that courts, as well as legislatures, may violate the Constitution's Religion Clauses by resolving issues of ecclesiastical government.
Neutral Principles of Law and Government Resolution of Religious Disputes[edit | edit source]
[T]here are neutral principles of law, developed for use in all . . . disputes, which can be applied without "establishing" churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969).
On "issues of religious doctrine or polity," civil courts must defer to "the highest court of a hierarchical church organization." Thus, in Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, the Supreme Court held that a state erred in awarding church property to local churches, because its decision was based on a judgment that their mother church had "departed from the tenets of faith and practice it held at the time the local churches affiliated with it." The state court had violated the First Amendment by "determin[ing] matters at the very core of a religion--the interpretation of particular church doctrines and the importance of those doctrines to the religion." This stood in contrast to prior cases where courts had permissibly deferred to and enforced the decisions of the church itself on religious issues.
Decades earlier, in Gonzalez v. Roman Catholic Archbishop, the Supreme Court had indicated that courts may have some role in reviewing ecclesiastical disputes. The Gonzalez Court declined to enforce a will that purported to appoint someone as a Catholic chaplain, where the Archbishop had concluded that the person was not qualified to serve under religious law. The Court said that because the chaplain's appointment was "a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them." However, although the Court ultimately deferred to the decision of the church authority, its opinion suggested that courts could conduct a limited review of churches' decisions on ecclesiastical matters to determine whether there was "fraud, collusion, or arbitrariness."
It is not clear, however, whether the mode of analysis outlined in Gonzalez is still viable. Decades later, in Serbian Eastern Orthodox Diocese v. Milivojevich, the Supreme Court concluded that a state court violated the First Amendment when it impermissibly inquired "into matters of ecclesiastical cognizance and polity." The Court held that Gonzalez's arbitrariness inquiry was unconstitutional to the extent that it allowed courts to inquire "whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations." Instead, the Court confirmed that the First Amendment requires civil courts "to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law." Accordingly, the Court held that the state court should not have disturbed the Serbian Orthodox Church's decisions to defrock the bishop of its American-Canadian Diocese and to split up the diocese.
By contrast, the Supreme Court has held that courts acted constitutionally when they resolved disputes between religious entities without inquiring into religious doctrine. Jones v. Wolf approved a state decision that applied "neutral principles of law" to resolve a property dispute between a local church and its national body. The Supreme Court said the state was not required to defer to the decision of the higher church authority where the dispute involved no "doctrinal controversy." The Court explained that in order to resolve a property dispute, it would be permissible for the state court to apply the "ordinary presumption that . . . a voluntary religious association is represented by a majority of its members." However, the Court cautioned that to the extent "the neutral-principles method . . . requires a civil court to examine certain religious documents, . . . . a civil court must take special care to scrutinize the document in purely secular terms." In cases where interpreting "instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body."
Church Leadership and the Ministerial Exception[edit | edit source]
The broader ecclesiastical abstention doctrine has specifically been applied to questions about who may lead a religious group. The Supreme Court held in 1952 that religious associations' "freedom to select the clergy" was protected by the First Amendment's Free Exercise Clause. For another example, in 1976's Serbian Eastern Orthodox Diocese v. Milivojevich, the Court ruled that a state court ran afoul of the ecclesiastical abstention principles outlined in Watson v. Jones when it overturned a church's decision to defrock a bishop. In the ensuing decades, lower courts built on these precedents to develop a doctrine known as the "ministerial exception," which prevented courts from interfering with "the employment relationship between a religious institution and its ministers."
The Supreme Court adopted the ministerial exception in 2012 in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, when it held that the doctrine limited the scope of certain employment discrimination laws. Specifically, in Hosanna-Tabor, a teacher at a Lutheran school claimed that she had been fired in violation of the federal Americans with Disabilities Act of 1990. The school sought to dismiss her claim, arguing that the suit was barred under the "ministerial exception." The Court agreed, recognizing the existence of the exception and its basis in the First Amendment. The Court ruled that "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so" impermissibly "interferes with the internal governance of the church," violating both the Free Exercise and Establishment Clauses. The Court further held that this ministerial exception applied to the teacher's claim in Hosanna-Tabor even though she was not "the head of a religious congregation." In the Court's view, the teacher qualified "as a minister" because of her distinct role within the church, including her title as a "minister"; her religious training and commissioning; her duties to lead religious activities in furtherance of the church's mission; and the teacher's own characterization of her position. As a result, the Court held, the First Amendment did not permit applying nondiscrimination provisions to the teacher's employment law claims.
In Our Lady of Guadalupe School v. Morrissey-Berru, the Court suggested that one particular factor from Hosanna-Tabor--the individual's job functions--was the most important for determining whether a particular employee qualifies for the ministerial exception. Our Lady of Guadalupe involved two employment discrimination claims brought by teachers fired by religious schools. The Court ruled that the two teachers fell within the ministerial exception even though, relative to the teacher in Hosanna-Tabor, they did not have the title of "minister," had less religious training, and were not practicing members of their employer's religion. Instead, the Court said that "[w]hat matters, at bottom, is what an employee does." Specifically, the Court recognized "that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school." The Court further stated that the two teachers in the combined cases "performed vital religious duties," emphasizing that they provided religious instruction, prayed with their students, and were "expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith." Consequently, in the Court's view, "judicial intervention" in either dispute would have "threaten[ed] the school's independence in a way that the First Amendment does not allow."
- First Amendment Fundamental Freedoms (emphasis added).
- For a discussion of the adoption of the Religion Clauses, see First Amend.: Constitutional Convention, Ratification, and the Bill of Rights.
- See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause).
- Art. VI, Cl. 3: Historical Background on Religious Test for Government Offices.
- Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).
- Id. at 668-69. See also First Amend.: Relationship Between the Establishment and Free Exercise Clauses.
- See First Amend.: Early Interpretations of the Religion Clauses.
- First Amend.: Introduction to the Historical Background on the Religion Clauses.
- First Amend.: Overview of Government Resolution of Religious Disputes; First Amend.: Doctrinal Basis of Government Resolution of Religious Disputes; First Amend.: Neutral Principles of Law and Government Resolution of Religious Disputes; and First Amend.: Church Leadership and the Ministerial Exception (government resolution of religious disputes).
- First Amend.: General Principle of Government Neutrality to Religion to First Amend.: Establishment Clause and Historical Practices and Tradition (Establishment Clause).
- First Amend.: Overview of Free Exercise Clause to First Amend.: Laws Neutral to Religious Practice Regulating Prisons and the Military (Free Exercise Clause).
- First Amend.: Relationship Between the Establishment and Free Exercise Clauses.
- First Amend.: Relationship Between Religion Clauses and Free Speech Clause.
- See Reynolds v. United States, 98 U.S. 145, 162 (1879) (discussing the meaning of "religion").
- Davis v. Beason, 133 U.S. 333, 341-42 (1890), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).
- See, e.g., United States v. Seeger, 380 U.S. 163, 184 (1965); United States v. Ballard, 322 U.S. 78, 88 (1944); First Amend.: Laws Regulating Religious Belief.
- Frazee v. Ill. Dep't of Emp. Sec., 489 U.S. 829, 833 (1989); see also, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (noting that "philosophical" beliefs would not "rise to the demands of the Religion Clauses," but finding evidence for "the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction"). In a case interpreting a federal conscientious objector statute, the Supreme Court said that "the central consideration in determining whether . . . beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant's life." Welsh v. United States, 398 U.S. 333, 339 (1970).
- See, e.g., Frazee, 489 U.S. at 834; Cruz v. Beto, 405 U.S. 319, 322 (1972).
- Seeger, 380 U.S. at 180.
- Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
- Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947).
- See, e.g., Robert T. Miller, Religious Conscience in Colonial New England, 50 J. Church & State 661, 661 (2008); Leo Pfeffer, Church State and Freedom 727 (rev. ed. 1967); Sanford Hoadley Cobb, The Rise of Religious Liberty in America vii (Johnson Reprint Corp. 1970) (1902).
- See, e.g., Thomas J. Curry, Church and State in Seventeenth and Eighteenth Century America, 7 J. L. & Religion 261, 271-73 (1989).
- E.g., Reynolds v. United States, 98 U.S. 145, 162 (1878).
- See generally, e.g., Steven K. Green, The Supreme Court's Ahistorical Religion Clause Historicism, 73 Baylor L. Rev. 505 (2021).
- John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 1 (4th ed. 2016).
- See, e.g., Pfeffer, supra note here, at 4; Richard Hooker, Of the Laws of Ecclesiastical Polity (1590s), reprinted in The Sacred Rights of Conscience 30-33 (Daniel L. Dreisbach & Mark David Hall eds., 2009); John Locke, A Letter on Toleration (1689), in The Sacred Rights of Conscience, supra, at 50.
- See Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2131 (2003); Chester James Antieau et al., Freedom from Federal Establishment 1-2 (1964).
- See, e.g., Everson, 330 U.S. at 9-10. See First Amend.: State-Established Religion in the Colonies.
- See First Amend.: State-Established Religion in the Colonies; First Amend.: Colonial Concepts of Religious Liberty.
- See First Amend.: Virginia's Movement Towards Religious Freedom.
- See First Amend.: Virginia's Movement Towards Religious Freedom; First Amend.: Continental Congresses and Religious Freedom.
- See First Amend.: Early Interpretations of the Religion Clauses.
- See First Amend.: Early Interpretations of the Religion Clauses. The process of disestablishment was gradual in many states, with various elements of the religious establishments being repealed at different times.
- See, e.g., Samuel Adams, The Rights of the Colonists, A List of Violations of Rights and a Letter of Correspondence (1772), reprinted in The Sacred Rights of Conscience 202-04 (Daniel L. Dreisbach & Mark David Hall eds., 2009); IV. The Declaration as Adopted by Congress, Nat'l Archives, Founders Online (July 6, 1775), . Cf., e.g., Robert T. Miller, Religious Conscience in Colonial New England, 50 J. Church & State 661, 662 (2008) (stating that English colonization of North America was motivated by a variety of factors, including not only religious motives but also "imperialism, economic and social pressures, humanitarianism, and the spirit of adventure").
- See, e.g., Engel v. Vitale, 370 U.S. 421, 425-26 (1962).
- See, e.g., Leo Pfeffer, Church State and Freedom 3 (1967).
- See, e.g., Frank Lambert, The Founding Fathers and the Place of Religion in America 184-94 (2003) (discussing the influence of English dissenters on the Founders).
- John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 16 (4th ed. 2016).
- Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2112-13, 2113 n.30 (2003). See also Lambert, supra note here, at 37-40 (discussing political and religious developments in this period).
- R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860, at 15 (J.H. Baker ed., 2006). See also id. (noting arguments that the break with Rome led to the decline of these courts); id. at 68-77 (discussing these arguments as well as contemporaneous criticisms of the courts).
- Id. at 5-7.
- Clarendon Code, Encyclopedia Britannica,  (last visited June 1, 2022).
- See id.
- Outhwaite, supra note here, at 79, 95.
- Chester James Antieau et al., Freedom from Federal Establishment 3 (1964).
- Witte & Nichols, supra note here, at 16-17.
- Lambert, supra note here, at 40. Cf., e.g., Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1064 (1996) (discussing English imprisonment of Quakers and execution of Catholics).
- Toleration Act, Encylopedia Britannica,  (last visited June 1, 2022).
- Toleration Act, 1689, The Jacobite Heritage(Oct. 26, 2003), .
- The application was debated by the colonies, but in 1752, a Presbyterian minister seeking licenses to preach in Virginia obtained an opinion from the British attorney general saying that the Toleration Act did apply in the colonies and the minister should receive his licenses. George William Pilcher, Samuel Davies and Religious Toleration in Virginia, 28 The Historian 48, 62-63 (1965).
- See First Amend.: England and Religious Freedom; see also, e.g., Pfeffer, supra note here, at 93.
- First Amend.: Introduction to the Historical Background on the Religion Clauses.
- Thomas J. Curry, The First Freedoms 133, 209-13 (1986).
- Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2116 (2003) (discussing the first and second Virginia charters); see also Curry, supra note here, at 29 (discussing early religious legislation, including regulations of the Virginia Company).
- Articles, Laws, and Orders, Virginia (1610-11), reprinted in The Sacred Rights of Conscience 84-86 (Daniel L. Dreisbach & Mark David Hall eds., 2009). Later forms of government in the colony continued to intertwine religious and civil authority. See Frank Lambert, The Founding Fathers and the Place of Religion in America 54-56 (2003).
- See Sanford Hoadley Cobb, The Rise of Religious Liberty in America 80-81, 87 (Johnson Reprint Corp. 1970) (1902).
- Id. at 91-92.
- McConnell, supra note here, at 2118-19.
- Curry, supra note here, at 30.
- McConnell, supra note here, at 2118-19.
- See Cobb, supra note here, at 116-19; Curry, supra note here, at 56-62.
- Curry, supra note here, at 3-5. Cf. McConnell, supra note here, at 2121-22 (distinguishing the Pilgrim settlers of Plymouth from other New England Puritans).
- John Cotton, Sermon, Gods Promise to His Plantation (1630), .
- Frank Lambert, The Founding Fathers and the Place of Religion in America 76 (2003).
- Id. at 78-79.
- Curry, supra note here, at 21-22.
- Curry, supra note here, at 5; Lambert, supra note here, at 82.
- Lambert, supra note here, at 82.
- Curry, supra note here, at 5.
- R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860, at 72, 76-77 (J.H. Baker ed., 2006). For more discussion of the English ecclesiastical courts, see First Amend.: Introduction to the Historical Background on the Religion Clauses.
- Lambert, supra note here, at 84.
- Curry, supra note here, at 6. See also, e.g., id. at 88-89 (discussing Massachusetts prosecutions of those who criticized Congregationalism or the colony's treatment of religious dissenters); Lambert, supra note here, at 90 (describing Puritan thinkers who defined religious liberty "in terms of religious purity").
- Curry, supra note here, at 6, 8; see also John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 26-27 (4th ed. 2016) (discussing the cooperation of church and state in Puritan colonies).
- See, e.g., Curry, supra note here, at 71.
- Curry, supra note here, at 76.
- Curry, supra note here, at 62-63; McConnell, supra note here, at 2130.
- Curry, supra note here, at 64-65.
- Curry, supra note here, at 65-67.
- See McConnell, supra note here, at 2128.
- Kenneth Lasson, Free Exercise in the Free State: Maryland's Role in the Development of First Amendment Jurisprudence, 31 J. Church & St. 419, 422-23 (1989); Curry, supra note here, at 31-33.
- Curry, supra note here, at 35-36.
- Curry, supra note here, at 38-39; Lasson, supra note here, at 428-29.
- Curry, supra note here, at 35-48; Lasson, supra note here, at 435.
- In addition to Rhode Island and Pennsylvania, discussed here, New Jersey also did not have an established church. Thomas J. Curry, The First Freedoms 72 (1986). Cf. Sanford Hoadley Cobb, The Rise of Religious Liberty in America 416 (Johnson Reprint Corp. 1970) (1902) (saying instructions from the crown to support the Church of England "kept up the fiction of an establishment in New Jersey"). Further, although Georgia established the Church of England, it also guaranteed freedom of religion to non-Catholics and tolerated significant religious diversity. Id., at 419, 152-53. For a definition of religious "establishment," see First Amend.: Introduction to the Historical Background on the Religion Clauses.
- Frank Lambert, The Founding Fathers and the Place of Religion in America 88-89 (2003).
- Roger Williams, Mr. Cottons Letter Lately Printed, Examined and Answered (1644), reprinted in The Sacred Rights of Conscience 147 (Daniel L. Dreisbach & Mark David Hall eds., 2009); see also Curry, supra note here, at 15, 17.
- Roger Williams, The Bloudy Tenent, of Persecution for Cause of Conscience (1644), reprinted in 5 The Founder's Constitution 48-49 (Philip B. Kurland & Ralph Lerner eds., 1987).
- Rhode Island Royal Charter, 1663, R.I. Sec'y of State,  (last visited June 14, 2022).
- Curry, supra note here, at 20-21.
- Leo Pfeffer, Church State and Freedom 85 (rev. ed. 1967).
- Id.; see also Curry, supra note here, at 90-91 (saying that Jewish people in the colony "were free to practice their religion" but "did so as second-class citizens," and claiming that "Catholics never came to the colony in numbers sufficient to test its liberality").
- Curry, supra note here, at 23.
- Lambert, supra note here, at 102 (quoting a letter from William Penn to James Harrison). See also William Penn, Frame of Government of Pennsylvania (1682), in The Sacred Rights of Conscience, supra note here, at 117.
- Laws Agreed Upon in England, &c, 1682, in The Sacred Rights of Conscience, supra note here, at 118.
- See, e.g., Lambert, supra note here, at 114.
- Laws Agreed Upon in England, &c, 1682, in The Sacred Rights of Conscience, supra note here, at 118-19.
- For a discussion of the Virginia establishment, see First Amend.: State-Established Religion in the Colonies.
- See, e.g., Letter from James Madison to William Bradford (Apr. 1, 1774), .
- Va. Const. of 1776, § 16, .
- Thomas J. Curry, The First Freedoms 133, 135-36 (1986).
- Id. at 136.
- Thomas Jefferson, Draft of the Virginia Statute for Religious Freedom, in Jefferson & Madison on Separation of Church & State 48 (Lenni Brenner, ed., 2004).
- See, e.g., Reynolds v. United States, 98 U.S. 145, 163-64 (1878).
- Draft of the Virginia Statute for Religious Freedom, in Jefferson & Madison on Separation of Church and State, supra note here, at 48-50.
- Id. at 49.
- Id. See also id. ("[I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . . . .").
- Id. at 49-50.
- Id. at 48.
- Curry, supra note here, at 139.
- A Bill Establishing a Provision for Teachers of the Christian Religion, Monticello Digital Classroom,  (last visited June 17, 2022).
- Everson v. Bd. of Educ., 330 U.S. 1, 73-74 (1947).
- Curry, supra note here, at 143.
- James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), in Jefferson & Madison on Separation of Church and State, supra note here, at 68.
- Id. at 69-71.
- See Curry, supra note here, at 145.
- Letter from James Madison to Thomas Jefferson (Jan. 22, 1786), .
- Id. Jefferson was in Paris at the time, and later that year, told Madison the act had "been received with infinite approbation" by European citizens. Letter from Thomas Jefferson to James Madison (Dec. 16, 1786), . In Jefferson's eyes, it was "honorable" for the Virginia legislature "to have produced the first legislature who has had the courage to declare that the reason of man may be trusted with the formation of his own opinions." Id.
- See, e.g., Reynolds v. United States, 98 U.S. 145, 163 (1878). See also Timothy L. Hall, Roger Williams and the Foundations of Religious Liberty., 71 B.U.L. Rev. 455, 458 (1991) (arguing that overreliance on Jefferson and Madison's writings "has left first amendment jurisprudence theoretically impoverished").
- First Amend.: England and Religious Freedom; First Amend.: Colonial Concepts of Religious Liberty.
- See, e.g., John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 65-69 (4th ed. 2016).
- Declaration and Resolves of the First Continental Congress, Avalon Project, Yale L. Sch. (Oct. 14, 1774),  (last visited June 1, 2022).
- See Great Britain: Parliament--The Quebec Act: October 7, 1774, Avalon Project, Yale L. Sch.,  (last visited June 1, 2022).
- Id. Among other provisions, the Act also required any "Ordinance touching Religion" to "receive[ ] his Majesty's Approbation" before going into effect. Id.
- Frank Lambert, The Founding Fathers and the Place of Religion in America 209, 213 (2003).
- Continental Congress to the Inhabitants of the Province of Quebec (Oct. 26, 1744), reprinted in 5 The Founder's Constitution 61 (Philip B. Kurland & Ralph Lerner eds., 1987).
- Id. at 63 (internal quotation marks and emphasis omitted).
- See Isaac Backus, A History of New England 1774-75, reprinted in The Founder's Constitution, supra note here, at 65.
- Diary of John Adams, In Congress, September-October 1774, .
- Thomas J. Curry, The First Freedoms 131 (1986).
- Backus, supra note here, at 65.
- Diary of John Adams, In Congress September-October 1774, ; cf. Backus, supra note here, at 65 (saying both John and Samuel Adams described the Massachusetts establishment as "a very slender one, hardly to be called an establishment").
- Backus, supra note here, at 65.
- Marsh v. Chambers, 463 U.S. 783, 787 (1983).
- Letter from John Adams to Abigail Adams (Sept. 16, 1774), .
- See, e.g., Religion and the Founding of the American Republic, Libr. of Cong.,  (last visited June 21, 2022).
- 8 Journals of the Continental Congress 734-35 (Worthington Chauncy Ford ed., 1907).
- Witte & Nichols, supra note here, at 68.
- 8 Journals of the Continental Congress 189 (Worthington Chauncy Ford ed., 1905).
- Northwest Ordinance § 14, art. 1, (July 13, 1787),  (last reviewed May 10, 2022).
- 28 Journals of the Continental Congress 293-94 (John C. Fitzpatrick ed., 1933).
- Letter from James Madison to John Monroe (May 29, 1785), .
- Curry, supra note here, at 218.
- Northwest Ordinance (1787), supra note here, § 14, art. 3.
- Cf. Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 496-97 (describing three aspects of the 1787 Constitution as "tak[ing] into account religious freedom": (1) the provisions permitting affirmations in lieu of oaths; (2) the Sunday Clause of the presidential veto; and (3) the No Religious Test Clause). See Art. VI, Cl. 3: Historical Background on Religious Test for Government Offices.
- See, e.g., John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 70-71 (4th ed. 2016) (discussing Charles Pinckney's draft Constitution containing a provision prohibiting the federal legislature from passing laws "on the subject of Religion").
- See, e.g., Va. Const. of 1776, § 16 ("[A]ll men are equally entitled to the free exercise of religion, according to the dictates of conscience; and . . . it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other."); Mass. Const. of 1780, art. II ("[N]o subject shall be hurt, molested, or restrained of conscience; and . . . it for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments, provided he doth not disturb the public peace or obstruct others in their religious worship . . . .").
- See, e.g., N.J. Const. of 1776, XIX ("[N]o Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles . . . ."); Penn. Const. of 1776, Declaration of Rights, II ("Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship . . . ."); Md. Const. of 1776, Declaration of Rights, XXXIII ("[A]ll persons, professing the Christian religion, are equally entitled to protection in their religious liberty . . . .").
- First Amend.: England and Religious Freedom; First Amend.: Colonial Concepts of Religious Liberty. See also, e.g., Md. Const. of 1776, Declaration of Rights, XXXIII ("[T]he Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion . . . .").
- See, e.g., N.J. Const. of 1776, XVIII ("[N]or shall any person, within this Colony, ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry . . . ."); id. at XIX ("[T]here shall be no establishment of any one religious sect in this Province, in preference to another . . . ."); Delaware Declaration of Rights, § 2 (Sept. 11, 1776), reprinted in 5 The Founder's Constitution 70 (Philip B. Kurland & Ralph Lerner eds., 1987) ("[N]o man ought or of right can be compelled to attend any religious worship or maintain any ministry contrary to or against his own free will and consent . . . .").
- N.C. Const. of 1776, art. XXXIV; Declaration of Rights art. XIX.
- For example, writing from France, Thomas Jefferson argued the need for such protections while otherwise praising the document. See, e.g., Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), ; Letter from Thomas Jefferson to William Stephens Smith (Feb. 2, 1788), . See also, e.g., Brutus II (Nov. 1, 1787), reprinted in XIII Commentaries on the Constitution 525-26 (John P. Kaminski & Gaspare J. Saladino eds., 1981) (discussing the importance of rights of conscience and the need for a bill of rights); John Leland, Objections to the Constitution (Feb. 28, 1788), reprinted in The Sacred Rights of Conscience 409 (Daniel L. Dreisbach & Mark David Hall eds., 2009) (arguing that the proposed Constitution did not sufficiently protect religious liberty).
- See Carl H. Esbeck, supra note here, at 511. For the text of the proposals, see The Sacred Rights of Conscience, supra note here, at 415-17.
- Amendments Proposed by the Virginia Ratifying Convention (June 27, 1788), in The Sacred Rights of Conscience, supra note here, at 416.
- Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), .
- Id. But cf., e.g., Letter from James Madison to John Brown (Aug. 23, 1785), reprinted in Jefferson & Madison on Separation of Church & State 75 (Lenni Brenner, ed., 2004) (giving advice on Kentucky's Constitution, saying it might restrain the legislature "from meddling with religion").
- One important figure pushing for express guarantees of religious liberty was John Leland, who mounted a political challenge to Madison and ultimately exacted a guarantee that Madison would propose an amendment protecting religious liberty. See, e.g., Gregory C. Downs, Religious Liberty That Almost Wasn't: On the Origin of the Establishment Clause of the First Amendment, 30 U. Ark. Little Rock L. Rev. 19, 21, 27 (2007).
- 1 Annals of Cong. 451 (1789).
- Id. at 452.
- Id. at 458.
- Id. at 757.
- See id. at 757-59.
- Id. at 783. Informing this fear that voluntarism would lead to the abolition of religion is the fact that at this time, most of the history of religion involved some level of state sponsorship of religion. See, e.g., First Amend.: Introduction to the Historical Background on the Religion Clauses; First Amend.: State-Established Religion in the Colonies.
- Id. at 784.
- Congress Creates the Bill of Rights, Nat'l Archives 31,  (last visited June 3, 2022).
- Id. at 140.
- S. Journal, 1st Cong., 1st Sess. 70 (1789).
- Id. at 77. The Senate rejected alternative drafts which would have, for example, spelled out that Congress could not establish any particular sect in preference to another. Id. at 70.
- Id. at 77-78.
- Id. at 72.
- Id. at 87; see also 1 Annals of Cong. 948 (1789).
- See, e.g., John Witte, Jr. & Joel A. Nichols, Religion and the American Constitutional Experiment 41 (4th ed. 2016).
- Id. at 57-58.
- See id.
- John Leland, The Rights of Conscience Inalienable (1791), reprinted in The Sacred Rights of Conscience 338 (Daniel L. Dreisbach & Mark David Hall eds., 2009).
- Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 492-93.
- See, e.g., Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 311-12 (2014).
- See, e.g., First Amend.: Doctrinal Basis of Government Resolution of Religious Disputes.
- Kenneth Lasson, Free Exercise in the Free State: Maryland's Role in the Development of First Amendment Jurisprudence, 31 J. Church & St. 419, 440-41 (1989).
- Thomas J. Curry, Church and State in Seventeenth and Eighteenth Century America, 7 J. L. & Religion 261, 153-55 (1989).
- Id. at 155-56.
- 380 Archives of Maryland, Amendments to the Maryland Constitutions 19, ch. CLXVII (1810), .
- Torcaso v. Watkins, 367 U.S. 488, 489 (1961).
- See, e.g., Marsh v. Chambers, 463 U.S. 783, 787-88 & n.9 (1983); Witte & Nichols, supra note here, at 89.
- Thomas J. Curry, The First Freedoms 218-19 (1986).
- Letter from Thomas Jefferson to Samuel Miller (Jan. 23, 1808), .
- James Madison, Detached Memoranda [1817-1832], reprinted in Jefferson & Madison on Separation of Church and State 264 (Lenni Brenner ed., 2004).
- Id. at 265.
- Id. at 266.
- James Madison, Veto Message to the House of Representatives of the United States (Feb. 21, 1811), in Jefferson & Madison on Separation of Church and State, supra note here, at 198.
- Id. at 198-99.
- 22 Annals of Cong. 998 (1811).
- Id. at 984.
- Cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892) (noting a variety of "unofficial declarations" and "organic utterances" in legal documents suggesting "that this is a Christian nation"). In Vidal v. Girard's Executors, the Supreme Court described America as "a Christian country" but also relied on the country's "variety of religious sects" and state guarantees of religious freedom in its opinion interpreting a will. 43 U.S. (2 How.) 127, 198-99 (1844).
- Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli, of Barbary (1797), reprinted in The Sacred Rights of Conscience, supra note here, at 476.
- See Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale J. Int'l L. 1, 40 (2018).
- See, e.g., Reynolds v. United States, 98 U.S. 145, 164 (1878) (quoting Letter from Thomas Jefferson to the Danbury Baptist Ass'n (Jan. 1, 1802), ).
- Id. at 163 (quoting Va. Code Ann. § 57-1) (internal quotation mark omitted).
- See, e.g., Roman Catholic Archdiocese of San Juan v. Feliciano, No. 18-921, slip op. at 4 (U.S. Feb. 24, 2020) (per curiam). This case involved a claim that the Puerto Rico Supreme Court should have abstained from resolving an allegedly ecclesiastical dispute, but the U.S. Supreme Court instead resolved the case on jurisdictional grounds. Id. at 4-5.
- See, e.g., Puri v. Khalsa, 844 F.3d 1152, 1162 (9th Cir. 2017); Winkler v. Marist Fathers of Detroit, Inc., 901 N.W.2d 566, 573 (Mich. 2017); St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 738 (Ky. 2014).
- Watson v. Jones, 80 U.S. (13 Wall.) 679, 731 (1871). See also United States v. Ballard, 322 U.S. 78, 86-88 (1944) (holding, in the context of a criminal prosecution for mail fraud, that the Court would have violated the First Amendment if it submitted the truth of the defendants' religious beliefs to the jury).
- Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 447, 449 (1969).
- See, e.g., id. at 441-42; Jones v. Wolf, 443 U.S. 595, 597 (1979).
- Watson, 80 U.S. (13 Wall.) at 714; see also Wolf, 443 U.S. at 603-04 (noting that by relying on ordinary legal documents like trusts, religious organizations can order their private affairs to "ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members").
- Presbyterian Church in the U.S., 393 U.S. at 449.
- Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 117-19 (1952).
- See Watson, 80 U.S. (13 Wall.) at 722-23; Wolf, 443 U.S. at 606.
- Wolf, 443 U.S. at 604.
- See Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 45, 55 (1815) (ruling that an Episcopal church held title to property even after disestablishment of the Church of England in the state).
- See Pawlet v. Clark, 13 U.S. (9 Cranch) 292, 334, 336 (1815) (ruling that an Episcopal church was not entitled to a glebe where the church had not been legally recognized either by England or by the state of New Hampshire, and was instead "a mere voluntary society of Episcopalians").
- 80 U.S. (13 Wall.) 679, 714 (1871).
- Id. at 729; see also Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 445, 447 (1969) (noting that Watson was "decided before the application of the First Amendment to the States but nonetheless informed by First Amendment considerations").
- Watson, 80 U.S. at 717.
- See id. at 735.
- Id. at 722-23, 727. See also Shepard v. Barkley, 247 U.S. 1, 2 (1918) (affirming decision citing Watson to defer to church authority's resolution of a property dispute); cf. Bouldin v. Alexander, 82 U.S. (15 Wall) 131, 137, 139-40 (1872) ("In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church.").
- Watson, 80 U.S. (13 Wall.) at 733. The Supreme Court phrased the issue in terms of jurisdiction, saying that civil courts could "exercise no jurisdiction" over a subject matter that was "strictly and purely ecclesiastical in its character." Id. By contrast, in Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929), the Court concluded that federal courts had jurisdiction over a religious dispute where the defendant was "a juristic person" and the subject matter involved the terms of a trust.
- Watson, 80 U.S. (13 Wall.) at 728-29.
- See id. at 728 ("In this country the full and free right to entertain any religious belief, to practice any religious principle and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.").
- See Permoli v. New Orleans, 44 U.S. (3 How.) 589, 609-10 (1845) (rejecting a challenge to an ordinance prohibiting certain Catholic burials as a matter "exclusively of state cognisance," holding, inter alia, that the U.S. Constitution did not protect "the citizens of the . . . states in their religious liberties"), superseded by constitutional amendment, Fourteenth Amendment Equal Protection and Other Rights.
- Wallace v. Jaffree, 472 U.S. 38, 49 (1985).
- See Fourteenth Amend., Sec. 1: Early Doctrine on Incorporation of the Bill of Rights.
- 344 U.S. 94, 116 (1952) (saying that Watson "radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation" and that its guarantees "must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference").
- Id. at 100 & n.6.
- Id. at 105-07.
- Id. at 107, 110. Subsequent caselaw clarified that resolving controversies over religious doctrine or polity also raises Establishment Clause concerns. See Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 449 (1969).
- Kedroff, 344 U.S. at 108.
- Id. at 109, 117-18.
- Id. at 116.
- 363 U.S. 190, 190-91 (1960).
- See id. at 191 (citing Kedroff, 344 U.S. at 117-18).
- See id.
- See Watson v. Jones, 80 U.S. (13 Wall.) 679, 714 (1871).
- Jones v. Wolf, 443 U.S. 595, 602 (1979).
- Presbyterian Church in the U.S., 393 U.S. at 441, 444.
- Id. at 450.
- See id. at 450-51 (contrasting the decision with Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1, 16 (1929)).
- Gonzalez, 280 U.S. at 16-17.
- See id. at 13-14.
- Id. at 16. In the case before it, the Court concluded that the Archbishop followed "the controlling Canon Law" and did not act "arbitrarily," and accordingly accepted his decision as controlling. Id. at 18.
- Id. at 16.
- 426 U.S. 696, 698 (1976).
- Milivojevich, 426 U.S. at 713.
- See id. at 717-21.
- E.g., Md. & Va. Eldership of Churches of God v. Church of God, Inc., 396 U.S. 367, 367-68 (1970) (per curiam) (resolving a "church property dispute" by relying "upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property").
- Jones v. Wolf, 443 U.S. 595, 604 (1979) ("[A] State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.").
- Id. at 605 ("We cannot agree . . . that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.").
- Id. at 607. The state argued that its courts had applied this presumption; the Supreme Court agreed that such a rule of decision "would be consistent with both the neutral-principles analysis and the First Amendment," but held that it was not clear whether the court had in fact followed this approach or whether this was the approach required by state law. Id. at 607-09. Accordingly, the Court vacated and remanded the judgment for further proceedings. Id. at 610. See also Bouldin v. Alexander, 82 U.S. (15 Wall) 131, 137, 139-40 (1872) (resolving question as to "the legally constituted trustees of the church" by looking to the terms of the deed, and noting that although the Court could not review church decisions about "who ought to be members," the actions of a minority of members to excommunicate the trustees were "not the action of the church" and were inoperative for determining trusteeship).
- Wolf, 443 U.S. at 604.
- Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952) ("Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.").
- 426 U.S. 696, 717-18 (1976).
- Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 & n.2 (2012) (citing lower court decisions). Cf. NLRB v. Catholic Bishop, 440 U.S. 490, 502-04, 507 (1979) (holding that if a federal statute were read to grant the National Labor Relations Board jurisdiction over religious school teachers, it would present a "significant risk" of infringing the First Amendment, and accordingly, interpreting the statute to exclude "teachers in church-operated schools").
- Hosanna-Tabor, 565 U.S. at 188.
- Id. at 179.
- Id. at 180.
- Id. at 188-89.
- Id. ("By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.").
- Id. at 190.
- Id. at 191-92.
- Id. at 194. The EEOC and the teacher had originally sought an order reinstating the teacher to her position, but at the Supreme Court, the teacher sought only front pay. Id. The Supreme Court said that while the reinstatement order "would have plainly violated the Church's freedom under the Religion Clauses to select its own ministers," the monetary relief was similarly unconstitutional "as a penalty on the Church for terminating an unwanted minister." Id. The Court emphasized that the monetary relief "would depend on a determination that Hosanna-Tabor was wrong to have relieved [the teacher] of her position"--a ruling "barred by the ministerial exception." Id.
- No. 19-267, slip op. at 18 (U.S. July 8, 2020). However, the Court emphasized that "a variety of factors may be important" in any given case. Id. at 16.
- Id. at 2.
- The majority opinion seemed to move away from using the term "ministerial exception," referring instead to "the Hosanna-Tabor exception," id. at 16, or "the exemption we recognized in Hosanna-Tabor," id. at 21. This nomenclature choice could be related to the substance of the decision; elsewhere, the Court emphasized that not all religions use the title of "minister," cautioning against "attaching too much significance to titles." Id. at 17.
- Id. at 23-26.
- Id. at 18.
- Id. at 21.
- Id. at 27.