Does the 14th Amendment Incorporate the Establishment and Free Exercise Clauses?

by Peter Tim


These words from the First Amendment are generally understood, as Thomas Jefferson put it, as erecting a “wall of separation” between state and church. Notice, of course, that it only refers to Congress, the federal legislative body. This is why the 14th Amendment is equally important to state-church separation and religious liberty. It provides that:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”

These words extended — or “incorporated” — the Constitution’s guarantees and protections (including the First Amendment’s concerning religion) to the states. So as much as the institution of slavery was a terrible deformity with which the US began its existence as a nation, and remains a stain and a scar on “the land of the free and the home of the brave,” its abolition came with this additional benefit for everyone.

There are those who interpret things differently. Some, for example, claim that the Constitution only bars the government — federal or state — from establishing its own church. And no less than Supreme Court Justice Clarence Thomas, in his concurrence (to reverse the 9th Circuit’s decision while disagreeing with the ruling that Newdow did not have standing in the 2004 pledge case) wrote:

“the Establishment Clause is a federalism provision, which, for this reason, resists incorporation … this Clause probably prohibits Congress from establishing a national religion. … the Clause made clear that Congress could not interfere with state establishments … [and] does not purport to protect individual rights. … At the founding, at least six States had established religions … incorporation of this putative individual right leads to a peculiar outcome: It would prohibit precisely what the Establishment Clause was intended to protect — state establishments of religion.” (1)

Thomas also cited the dissent in the 1963 Schempp case (that barred school-sponsored Bible-reading in public schools) by Potter Stewart who wrote:

“the Fourteenth Amendment has somehow absorbed the Establishment Clause, although it is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy” (2)

Curiously, Thomas omitted the words with which Stewart began the sentence: “I accept too the proposition that.” Thomas clearly would have it falsely believed that Stewart also thought that the Establishment Clause “resists incorporation.” At least Thomas acknowledged that:

“The best argument in favor of incorporation would be that, by disabling Congress from establishing a national religion, the Clause protected an individual right, enforceable against the Federal Government, to be free from coercive federal establishments. Incorporation of this individual right, the argument goes, makes sense.” (1)

Indeed, that is precisely the argument that the American colonists understood and embraced. For religious pluralism showed them that governmental support of any church or religion put others at a disadvantage. Even Massachusetts, which began as a Puritan theocracy, finally abolished religious taxation in 1833, the last of the states to do so. This was also the point of the Newdow challenge to the “under God” insertion in the Pledge of Allegiance. That no taxes are levied and no funds paid out of the public treasury to support this defacement of the nation’s official loyalty oath is irrelevant. Such governmental endorsement of a religious doctrine places at a disadvantage those religions that reject the doctrine.

So it is that the the Establishment Clause and the Free Exercise Clause work together as two aspects of the same principle. Freedom of religion means being free to have, express, and exercise one’s own thoughts and convictions on matters of religion. It also means being free from any coercion by the power of the state on behalf of religion, even on behalf of — perhaps especially of — your own. Because it is no business of the government what choices anyone makes in matters of religion. It should neither encourage or hinder anyone’s questioning even their own religious beliefs, rejecting them or coming to have new or different ones.

Of course it is no easy task to negotiate the real world challenges of realizing these ideals. There will always be circumstances that pose serious difficulties of how to protect both freedom of religion as well as freedom from religion. It is therefore not surprising that First Amendment jurisprudence relating to the Religion Clauses has a long and complex history. There has never been a clear consensus on just what they mean and exactly what they require. Partly this is due to the natural ambiguity implicit in all language and partly it is because of the differing perspectives that people have in trying to understand them. But it is not as hard to tell whether a sincere and honest effort is being made to realize the ideals these clauses represent or whether their intent and spirit are being disregarded.

(1) Elk Grove Unified School Dist. v. Newdow (02–1624) 542 U.S. 1 (2004) 328 F.3d 466, reversed.

(2) Abington School District v. Schempp, 374 U.S. 203 (1963) Schempp, 374 U.S., at 310 (Stewart, J., dissenting)

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