When adopted in 1791, the First Amendment prohibited Congress from establishing a national church or passing laws restricting the free exercise of religion. "Congress," the amendment says, "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These brief clauses had little immediate impact in the new nation; in fact, as the various state governments were not restricted by the First Amendment, they continued to support favored churches and discriminate against religious dissenters, much as they had in the colonial past. By 1833, every state had eliminated its official church, yet religion continued to shape many local and state laws. But in 1940, the United States Supreme Court ruled for the first time that the states should also be restricted by the religion clauses of the First Amendment; since that time, the Court has worked to establish and apply a uniform interpretation of these clauses throughout the nation. Not everyone has agreed with the Court’s interpretation of these two short phrases. And as many of the cases involving religious rights touch on vital issues such as marriage, education, and "the right to die," recent disputes over the Court’s interpretations have often been titanic; it’s unlikely that this will change in the near future. In recent years, new political initiatives and new confrontations between science and religion have raised new challenges for the Court. In other words, the Supreme Court has not yet finished working out the full meaning of the First Amendment.
America has always been a land of religious liberty, a refuge for religious outcasts looking for a haven to freely practice their faith, right?
Not really. Most of the religious refugees that fled to America were looking for freedom for their particular beliefs, not for those of others. They often tried to exclude other religious groups—sometimes through laws, sometimes through violence. (The famous Massachusetts Puritan minister Cotton Mather, for example, reacted to the 1682 arrival in his colony of a ship full of "the heretics and malignants called Quakers"—a different group of English religious dissenters—by proposing to sell them all into slavery in Barbados. The Quakers wisely decided to move on to Pennsylvania.) Also, almost every colony established an official church and forced all residents, whether members of the established church or not, to support it with taxes.
Okay, but we sorted all this out with the ratification of the First Amendment, eliminating established churches and guaranteeing that everyone could worship without interference, right?
Not really. The First Amendment placed restrictions only on the federal government; state governments remained free to establish churches, collect taxes, and regulate religious practices much as they had in the past.
Okay, but the men who drafted the First Amendment were true visionaries, idealists who realized that eventually their commitment to the principle of religious freedom would take root and become a critical part of our nation’s character, right?
Again: not really. Most of the Founding Fathers, like James Madison, thought that the Bill of Rights was unnecessary and that drafting these amendments was a waste of Congress’s time.
Well, then, why was the First Amendment added to the Constitution at all? What did the religious freedom clauses really mean to the Founders? What did the First Amendment actually do? When and how did it become such a large part of our national identity? And what exactly does it mean today?
During the seventeenth century, the religious-freedom seeking Puritans of Massachusetts Bay arrested, harassed, or kicked out every non-Puritan that tried to enter "their" colony. They hated Quakers the most; in 1658, they passed a law imposing the death penalty on any Quaker who returned to the colony a third time after being expelled. Mary Dyer, a woman who was either remarkably stubborn in her religious outlook, or perhaps simply unable to count, returned to Massachusetts four times before finally being hanged in 1660.
From the colonial era through the nineteenth century, communities often passed laws to enforce their particular religious values. These so-called "blue laws" forbade the selling of alcohol before noon, required businesses to close on Sunday, and imposed civil penalties for "blasphemy." Today, these laws may seem quaint, or even silly. But a recent study by economists from MIT and Notre Dame concluded that repealing these laws in the modern era led to reduced church attendance, decreased contributions to religious organizations, and an increase in alcohol and drug abuse.
In 2007, several religious organizations rallied to the cause of an Alaskan high schooler who was suspended from school when his principal took offense to a sign the student displayed during a downtown parade. The religious groups feared that the principal’s actions represented a threat to the religious rights of all students. If school officials are given the authority to "arbitrarily determine what student speech is offensive and off limits," the religious groups argued, "that could put all student speech at risk—including speech that advocates Christian beliefs on any issue." What exactly did the suspended student’s sign say? "Bong Hits 4 Jesus."
James H. Hutson, Church and State in America: The First Two Centuries (2008)
Hutson offers a concise and authoritative discussion of the relationship between church and state from America’s first settlements through the early nineteenth century. Hutson’s analysis of the philosophical and practical context for the First Amendment is particularly useful.
Leonard Levy, The Establishment Clause: Religion and the First Amendment (1994)
Levy, a leading Constitutional scholar, attacks recent legal and policy trends in arguing that the framers of the constitution intended a rigid wall of separation between church and state. He takes particular aim at "non-preferentialists" who argue that the establishment clause was intended to allow federal aid to religious institutions so long as it was directed impartially and not toward a particular church.
Mormon polygamist George Reynolds took his case before the Supreme Court in 1879, hoping that the First Amendment would overturn his conviction for having multiple wives. He lost his case but Reynolds v. United States proved to be a landmark in the Supreme Court clarifying the meaning of religious freedom.
Father of the Bill of Rights
James Madison, the principal author of the First Amendment
Parents line up to apply for vouchers in New Orleans
Nothing like a Little Constitutional Humor
Cartoon commenting on Everson v. Board of Education
The sticker, attached to science books, that was ruled unconstitutional in Selman v. Cobb County School District
Not Since Engel
School prayer ruled unconstitutional in 1962
The young woman at the center of a recent First Amendment debate
A group prays for support from the courts in the Terri Schiavo case.
Inherit the Wind (1960)
Spencer Tracy, Fredric March, and Gene Kelly star in this classic account of the 1925 Scopes Trial, in which the teaching of evolution was put on trial in Tennessee. Director Stanley Kramer’s cultural politics are transparent, and he monkeys around with the historical details. But Drummond’s character—anti-creationist lawyer Clarence Darrow—evolves brilliantly, and the courtroom scenes are inspired.
The Constitution—That Delicate Balance: School Prayer, Gun Control and the Right to Assemble (1984)
Politicians, lawyers, journalists, and a judge discuss some of the contemporary issues surrounding the Bill of Rights. It’s a bit dated, and the format is dry—but if you like this sort of thing you will find it interesting.
Monkey Trial (2002)
This episode in the award-winning PBS series American Experience explores the Scopes evolution trial of 1925. There is also a useful companion site at http://www.pbs.org/wgbh/amex/monkeytrial/
Cornell University Law School has posted an "annotated Constitution" with an extremely useful page dedicated to the First Amendment. It traces the First Amendment’s legal evolution and provides concise summaries of the critical court cases.
First Amendment Center
The First Amendment Center maintains an educational website with extensive information and resources pertaining to the religion clauses of the First Amendment. Several freedom of religion issues are summarized, such as school prayer and released time. There are also lesson plans and links to relevant congressional reports and summaries of pending cases.
Separation of Church and State
Americans United for Separation of Church and State maintains a website that offers issue analyses, news reports, and case summaries. The organization is committed to a particular interpretation of the separation of church and state, but it provides a useful introduction to this interpretation.
Religion in America
The TeacherServe project of the National Humanities Center has a page devoted to religion in American history. Among the essays by leading scholars are two on the relationship between church and state in early America. The other essays will provide useful context for an exploration of the role of religion in American life.
The First Amendment Center maintains an online library, which includes a searchable database of court cases dealing with the religion clauses of the First Amendment.
The Library of Congress had made the Congressional Journals kept in both the House and the Senate available online. The journals can be searched or browsed to locate notes pertaining to the debates surrounding the First Amendment.
The Library of Congress has created a web guide for the Bill of Rights with links to a several historical documents. Included are letters from and between Thomas Jefferson and James Madison.