How Does the Constitution Protect Religious Freedom?

Leonard W. Levy

What does history show about the meaning of the establishment clause at the time of its framing and adoption? What did an establishment of religion mean to the generation that adopted the First Amendment? In Europe an establishment of religion meant a state church: one church exclusively enjoying the benefits of a formal, legal union with the state. It was the church of the state; attendance at its services was compulsory unless the state indulged the existence of open religious services by dissenters; all subjects, even the dissenters, paid for its support; its doctrine and rites alone could be publicly taught in schools; and its clergy alone had civil sanction to perform sacraments. An establishment of religion denoted a legal alliance of government and religion if by "religion" is meant the religion of a church or of a single denomination, such as Roman Catholicism in Spain, Anglicanism in England, Presbyterianism in Scotland, or Lutheranism in Sweden.

A book by James O'Neill in 1949 advocated the thesis that aid to religion generally or to all churches without discrimination did not constitute an establishment of religion and therefore could not violate the First Amendment. ¹ O'Neill's thesis has enjoyed a revival in recent years; works by Chester J. Antieau, Michael Malbin, Walter Berns, James McClellan, and Robert L. Cord, among others, recognizing the plurahstic and religious nature of American society, have refurbished the thesis by arguing that government assistance to religion generally—to all religions and their institutions—does not constitutionally breach the wall of separation between church and state. ² Like O'Neill, all see an establishment of religion as a state church. All agree with Edward S. Corwin, who contended that the Supreme Court's Everson

This essay, originally composed in 1984, became the basis of my book The Establishment Clause: Religion and the First Amendment ( New York: Macmillan Publishing Co., 1986).

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