What The Establishment Clause Really Means

Forget the sound bite about a “wall of separation.” We dig into what the Establishment Clause actually says, why the founders cared, and how the Supreme Court’s view has evolved from strict separation to a history-and-tradition lens that prizes neutrality without scrubbing religion from public life. With Dr. Sean Beienberg, we unpack the founding-era landscape where some states still had established churches, walk through Jefferson’s letter and Madison’s Memorial and Remonstrance, and contrast competing models: strict separation, non-preferentialism, and minimalist federalism. You’ll hear how those frameworks shape real-world fights over school prayer, vouchers, and religious symbols on public land.

We take on the Blaine Amendments and their anti-Catholic legacy. We explain how many state constitutions still restrict public funds for “sectarian” schools and why modern school choice programs route money to parents to preserve neutrality. Then we turn to the courtroom: from early cases striking down school-composed prayers to more recent rulings upholding legislative invocations and historic memorials, the line has shifted toward practices consistent with national traditions and away from a blanket bar on religious presence. The key test today is no coercion, favoritism, or penalty for religious status in generally available benefits.

If you care about constitutional law, education policy, or how pluralism works in daily governance, this conversation offers clarity and context without the jargon. You’ll leave a sharper sense of where the Court is heading, why free exercise and establishment can clash, and how neutrality tries to hold the middle. Subscribe, share this episode with a friend who loves civics, and leave a review with your take on where the Establishment Clause line should be drawn.

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Episode Transcript

SPEAKER_00 (00:00):
Welcome back to Civics in New Year.
Today we have Dr.
Sean Byenberg to talk with usabout the establishment clause.
So if you haven't listened tothe episode before this with Dr.
Kreese, where he kind of goesover the freedom of religion as
a whole, I definitely suggestthat you start there.
But this episode and the episodeafter, we're going to dig more
into these two clauses.

(00:20):
So, Dr.
Beyenberg, when we're looking atfreedom of religion, what is the
establishment clause?

SPEAKER_01 (00:27):
The establishment clause is effectively part of
the, as Professor Caris alludedto, the broader effort by the
founders to protect a freedom ofreligion broadly understood.
And I want to focus effectivelyon both the original sort of
understanding of what it was andthen how the doctrine has
developed, which and I shouldsay developing.
So this is one of the placeswhere over the course of the

(00:49):
20th century the court has laidout sort of different tests.
I'll try to skip over the reallyboring tests and just sort of
give you the high-leveltakeaway.
Right?
So the establishment clause,everybody agrees, is designed to
avoid at the federal levelinitially something akin to a
Church of England.
The complication comes a littlebit later, word, a little

(01:11):
afterward, when you're applyingthe Bill of Rights to the
states.
But originally the establishmentclause was just everybody agreed
at the threshold, it was justthat there would not be a
federal established church.
And I emphasize that becauseseveral of the states, even
through the mid-19th century,continued to maintain their own
established churches.

(01:32):
They weren't necessarily thateverybody had to march in like
gunpoint or you were going to bepunished, but at least one that
was sort of supported by thestate financially.
And so some people in theAmericas, I mean this again
reflects the diversity of thestates under federalism.
Some of the states were sort ofreligious havens, some of them
were specifically designed for aparticular religious community

(01:53):
or tradition.
So just at the threshold level,the sort of everybody can sign
on to this.
The original understanding andeffort of the establishment
clause was to avoid basicallycreating a national church.
Probably leave the states aloneat theirs, but not build a
national church.
Fourteenth Amendment, by thattime, effectively there's an

(02:13):
agreement that even the statesshould not have established
churches.
So there's a little bit of sortof dog, sort of doctrinal
ambiguity about what that playsout.
But effectively, once we nolonger have the federalism
concern, then the questionbecomes okay, what does it
actually mean to establish achurch?
And particularly, the languageof the First Amendment doesn't

(02:36):
say there shall be noestablished church.
It's law respecting anestablishment of religion, which
gets a little more complicated.
So the basic, basic positionsthat have been laid out on how
to understand this, we cancluster into a couple of
different schools.
The one that was the predominantunderstanding in Virginia from

(02:58):
shortly after the ratificationof the Constitution, and which
the United States Supreme Courtadopted in the mid-20th century,
is a position called strictseparation.
Its origins are not necessarilyin the text of the establishment
clause, but most famously areencapsulated in Jefferson's
famous letter to the DanburyBaptist, where he calls for the

(03:21):
erection of a wall of separationbetween church and state, again,
particularly at the federallevel.
Now, we sometimes have thenarrative that this is
exclusively basically aprotection of sort of
secularists against fromreligious people.
But at the time of the founding,again, this is a letter to

(03:42):
Danbury Baptists.
Religious minorities in any ofthe states are often frustrated
that they're basicallysecond-class citizens.
And the argument comes, I think,is most famously and eloquently
articulated in a document calledMadison's Memorial and
Remonstrance, where heeffectively explains and says,
the primary reason we actuallywant this understanding of

(04:05):
separation of church and stateis that the religion and
basically the relationship andobligations you have to God are
too important for the state tointerfere with.
And so everybody should be ableto agree to that.

(04:28):
So at the time of in the 1780s,Virginia does have an
established church, but Madisonand Jefferson are basically able
to persuade much of the Virginiapolitical class to adopt
something closer to the stricterseparation perspective.
This established the churchthere.
Not all of them.
Washington, John Marshall, manyof the other figures are
disagree with Madison andJefferson on this.

(04:50):
This school ends up then gettingpicked up as and understood as
the broader American perspectiveby the Supreme Court of the
1940s.
That's probably not necessarilyright insofar as, as I was
alluding to, there are differentunderstandings of what counts as
an establishment clause, anestablishment of religion.
And the Supreme Court basicallysays we're just going with

(05:12):
Virginia, which may be right,but it's not necessarily the
most representative one.
There's a scholar named DonaldDrakeman who I think has
probably written the best bookon this.
And Drakeman argues that weshould understand establishment
in one of the narrower waysbecause it's the only way people
would have signed off on thisFirst Amendment.
So some of the other ways thatthe court has interpreted the

(05:34):
establishment clause over timeis one called
non-preferentialism.
And there's a couple versions ofthis.
But effectively, this is theidea that the government can
choose to support religion, butcannot disproportionately
benefit one church over another.
So it is to say the state, thegovernment can basically it can
have perhaps a prayer in school,but it couldn't have necessarily

(05:59):
only the Baptists get theirprayers.
There are some in the 19thcentury that argue that a proper
understanding of sort of commonlaw inflecting the establishment
clause suggests that there canbe a preference for, but not
within Christianity.
So I think Joseph Story and someothers are associated with that.
But the basic take innon-preferentialism is that

(06:21):
there can indeed be interactionsbetween church and state, but
they basically have to benon-preferential at the very
least of religion tonon-religion, but some say
basically that it can be as longas there's uh sort of a level of
parity.
Uh and then finally, there's aminimalist interpretation, which

(06:42):
basically just says the wholepurpose of this was effectively
federalism, and theestablishment clause shouldn't
even apply to the states today.
It's impossible to apply itunder the 14th Amendment.
The court, like I alluded to formost of the 20th century, for
most of the mid to late 20thcentury, was closer to strict
separation and drifted moretoward non-preferentialism.

(07:02):
And I think that's fair to say,uh, without rattling off a
thousand cases, that that'seffectively where the court has
moved now.
They've effectively said whatcounts as a violation of
establishment is somethinginconsistent with our history
and traditions.
So that means that yes, you canhave prayer at a legislative
meeting.
Yes, that that that's not aproblem.
Yes, you can have the statecontribute to, for example, a

(07:27):
school voucher toward a privateschool if that similarly is
being extended to a secularprivate or to a religious
private school, if that'ssimilarly being extended to a
secular private school.
And so in the last few years,the doctrine has pushed much
more toward that, which in someways is closer to what it was
before you know the 1940s whenthey just said we're going with

(07:49):
Virginia strict separation.

SPEAKER_00 (07:52):
So you brought up Jefferson's letter to the
Danberry Baptist, which, ifyou're listening to this, it's a
very short read.
Um, I used to read it with mystudents in class.
And so we've heard thisseparation of church and state.
This is the only place thatwording is, correct?
It is not in the actualconstitution itself.

SPEAKER_01 (08:12):
Correct.
That's why I said that thelanguage is quite interesting.
It's no law respecting anestablishment of religion.
So separation of church andstate is sort of a conceptual
way, is one way to sort of applyor interpret that.
It does become a popular phrasein the 19th century, although it
largely has, if you go back andsee what they count it as, it

(08:34):
really is mostly justanti-Catholic, where they're
saying we have to have aseparation of church and state,
so we can't subsidize Catholicschools, even if we're saying
mandating the King JamesProtestant Bible be read.
But separation of church andstate in the 19th century really
is coded as anti-Catholic.
And particularly, there's a sortof movement called the Blaine
Amendment.
It's more actually closelyassociated with Ulysses Grant,

(08:57):
but Senator James Blaine is thesponsor in Congress.
And this effectively would havemodified the First Amendment to
make it explicit that basicallygovernment money could not be
directed toward sectarianinstitutions, but particularly
Catholic schools.
It fails at the federal level,but one thing that is striking,

(09:17):
Congress then requires that as acondition of Western states
getting into the union.
So most of the Western stateconstitutions include a
provision that's called a babyblane amendment.
Arizona, for example, is one ofthem where they say explicitly
no money can go from basicallystate funds to a religious uh

(09:37):
institution.
And this is part of why this ispart of why, for example, states
have moved in some cases awayfrom like the school voucher
model toward more of an ESAmodel where the money goes to
the parent first, and then theparent can choose what kind of
school it goes to.
But that's basically aworkaround because many of the
states have these Blaineamendments.

(09:58):
There are some on the SupremeCourt, and they've gestured in
this way, that the Blaineamendments might themselves, at
least at the state level,violate the free exercise clause
by basically creating anadditional burden that is
imposed on religiousinstitutions that isn't imposed
on secular institutions.
So there's been a line of caselaw, I guess this is in some

(10:19):
ways more on the free exercisewith clause, but there's been a
line of case law suggesting thatindeed, no, this is not an
establishment of religion if yousay that a church can, uh,
church school can be eligiblefor the same thing that a
secular school or even maybepotentially a public school
might be.
That effectively, as long as youare not privileging it and
saying this is the religion wewant to put a thumb on the scale

(10:41):
for and protect, that that'sthat that's okay.
So yeah, so Jefferson'sJefferson's phrase is
effectively an interpretation,but the court very much picks it
up and it becomes sort of thelanguage that the court uses for
about 25, 30 years in the 20thcentury.
But you're absolutely right.
The phrase is indeed respectingan establishment of religion.

(11:03):
Separation of church and stateis an interpretation, perhaps
the correct interpretation, butit is by no means either the
exclusive or the text itself.

SPEAKER_00 (11:13):
And you, you know, you bring out free exercise, and
this is why we're doing twoseparate episodes on this,
because they they do intersect,but they also don't, because
it's so it's such a complicatedand very interesting look when
we're looking at case law.
So, can I ask one more question?
So when we're looking at likeschool prayer, right?
There has been Supreme Courtcases on prayer in public

(11:37):
school.
Is that establishment or is thatfree exercise?

SPEAKER_01 (11:42):
The courts have adjudicated those under the
establishment clause.
So the first, there's a there'sa case about that from you know
the 40s and 50s, they and inwhich case in in which very
famously, New York basicallywrites it's really, really
generic prayer.
It's effectively like, God blessour schools, bless our children,
let us learn, amen.
I mean, it's really pretty muchany monotheistic religion could

(12:04):
could sign off onto that.
It's very, it's designed to bevery not non-sectarian.
And nonetheless, uh, and theSupreme Court strikes that down.
The dissents effectively sayincredulously, like, what
religion is this?
Is this Episcopalianism?
Is this Judaism?
Like, this doesn't seem like itmeets the sort of traditional
understanding of establishment,which is your taxes are being

(12:24):
used to support a specificreligious tradition that you may
not want to participate in.
And then the the court and sothen states and municipalities
sort of play around with ways tomaintain something along those
lines.
And so there's a in 1992 veryfamous case, Levy Weissman,
where the Supreme Court strikesdown a school prayer in which

(12:47):
the school doesn't compose theprayer.
That was part of the objectionthat had been made in that
original case.
And they just say, we will sortof rotate among inviting rabbis
and priests and pastors, andthey can give the invocation,
and they get a little set ofguidelines in that case, which
is basically like don't you knowproselytize, don't hector for
your own.
But it's effectively a just do areally generic prayer.

(13:10):
And the Supreme Court strikesthat down as well.
And their argument effectivelyis that at least for younger
people, they will feel sort ofcoerced and pressured to
participate in religion, even ifit's only just that like maybe
some of their peers are standingup.
And the dissenters in that casesay, like, no, coercion means
you're actually going to bepunished for it.

(13:30):
Like you're going, you'rethey're gonna withhold your
diploma or something, but justsort of sitting there quietly
while somebody else prays andsomebody else stands up for it,
the dissenters argue is is notan establishment.
Uh and a couple of years ago,and so yeah, to it's hard for me
to sort of avoid going too heavyinto free exercise, but the
basic controversy is the court,if you read each of these

(13:53):
phrases broadly, then it createsa real problem.
If you think the establishmentclause is like anything that at
the margin is has a possibleconnection to religion, that's
the sort of the maximaliststrict separation position.
At the same time, if you want toread the free exercise clause
broadly and say, no, you shouldbe able to exercise your

(14:13):
religious convictions withoutbasically punishment from the
state, if you read them bothexpansively, it creates a real
tension.
As several of the justices pointout over the years, if you read
them both narrowly, or even oneof them narrowly, the
relationship between them is alittle less, a little less
fraught.
But for a while there, the courtwas trying to read them both
maximally.
And like I said, they're they'removing away from the more

(14:36):
maximalist interpretation of thestrict separation and
effectively saying stuff that'ssort of consistent with our
history and traditions, sort ofrotating prayers among it,
certainly in like a legislativesession.
The court's increasingly okaywith that.
Or a few years ago, a case aboutwhether it was an establishment
of religion to have effectivelyan old cross that was built as a

(14:58):
World War I memorial on publicland.
And they said, nobody's beinglike made to go bow before this
image.
This doesn't look likeestablishment and sort of
memorials to things withbasically maybe a religious
image attached to it is wellwithin the history and tradition
of the United States.
So they said that one's okay.
So the court is moving toward,in some ways, maybe

(15:22):
non-preferentialism, butbasically much more of a sort of
you're not being marched in atgunpoint, you're not being
forced to specifically subsidizeone thing, but instead the the
religious people you're tryingto reconcile with free exercise.
Religious people religiousconnect connections to church
and state are not necessarilyinherently a problem as long as

(15:43):
it's not basically designed topush you into a particular
religious tradition.
That's a sort of where the coreis moving.

SPEAKER_00 (15:52):
Fantastic.
Dr.
Weinberg, thank you.
And listeners, if you haven'tlistened to the episode before
this, it kind of goes overfreedom of religion very
broadly, please do, and thenjoin us for our next episode
where we're going to do a deepdive into free exercise clause.