Academic journal article
By Olree, Andy G.
Northwestern University Law Review , Vol. 102, No. 1
Intentionally or not, governments in the United States often demonstrate some religious preference or belief. The demonstrations may be verbal, as when the U.S. Congress adopted the national motto "In God We Trust,"1 or they may take the form of nonverbal symbols or actions, as when a city adopts a seal containing a Latin cross.2 But verbal or nonverbal, purposeful or incidental, they all demonstrate someone's religious belief or preference. In the past, the governments have claimed that the religious be liefs are their own; but more often nowadays, governments claim they are merely "acknowledging" or "reflecting" the beliefs of their citizens or employees. These demonstrations are not often "coercive"-that is, they do not usually force anyone to share the religious belief upon pain of imprisonment or forfeiture of property-and the beliefs demonstrated may be widely shared in the relevant community.
The U.S. Supreme Court has sometimes said that the Establishment Clause of the First Amendment forbids governmental endorsements of any religious viewpoint, requiring government to remain strictly neutral on all issues of religious doctrine and belief.3 If this is so, even noncoercive governmental demonstrations of widely supported religious beliefs might be held to violate the Establishment Clause-at least in the case where a particular demonstration, in context, leaves the impression of governmental endorsement rather than mere acknowledgment of the beliefs of citizens.4
Many of these governmental demonstrations have come before the courts, challenged as violations of the Establishment Clause. The results have been mixed. When the governmental action has occurred in the context of a public elementary or secondary school, it has most often been struck down.5 When the governmental action has occurred in other contexts, however, the courts usually have been more deferential to the government,6 although invalidations of such demonstrations are not hard to find.7 Meanwhile, the task of unifying these disparate precedents and extracting some binding legal rule has become a Herculean labor, if not altogether impossible.8
Thus serious questions remain about the constitutionality of noncoercive governmental demonstrations of religious beliefs. Perhaps because of this uncertainty, there has been an increased interest in discovering what the Founding generation, including those who framed and ratified the First Amendment, understood the Establishment Clause to forbid. This concern with the original intent behind the Establishment Clause is not new,9 nor is it confined to those who would call themselves "originalists" in matters of constitutional interpretation.10 But as time has passed and precedent has accumulated, both judges" and commentators12 have shown an increased level of interest in the Framers' attitudes about church and state.
If one hopes to discover what the Framers thought about church and state, one should at least consider what they did about it. In fact, several Justices of the Supreme Court have signaled that, in the context of governmental demonstrations of religious belief, they view the practices of the Framers while holding political office as practically determinative of the Establishment Clause's meaning.13 And indeed, there is some historical evidence of this sort to find; one can point to a few national governmental practices during the Founding era that might qualify as demonstrations of support for a religious belief.
Perhaps the most striking of these is the legislative chaplaincy,14 which is worthy of study as an ongoing demonstration of religious belief by the national government, one that has existed from the Founding until the present-from the 1770s forward-without any significant break.15 As defined by various colonial, state, and national legislatures of this country, the duty of legislative chaplains generally has consisted of beginning meetings of the legislature by offering public prayers in the assembly hall; legislators are invited to attend and silently join the prayers. …