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Supreme Court of the United States

What Does it Really Mean to “Establish” Religion?

By Brett Harvey posted on:
October 17, 2017

If I say “I like chicken,” does that mean you have to like chicken or that I don’t like bacon?  No, of course not! Are pig farmers and purveyors of “the other white meat” second class citizens because the U.S. Secretary of Agriculture pays for ad campaigns that say “Beef, It’s What’s for Dinner?” Certainly not! The ad campaign supporting beef does nothing to prevent farmers from raising and selling pigs, chickens, or corn. Just like if you hear me express my faith, it does not establish or dictate what you believe.

I am not Jewish, but my status as a citizen does not change when I see a menorah outside city hall during the season of Hanukah or hear the local Rabbi offer a blessing from the God of Abraham at a public meeting. My status doesn’t change because I am free to appreciate, disagree with, or ignore what I see and hear. Rather than being degraded, I have the privilege of exercising the civic virtue of showing respect and tolerance for the beliefs and values of fellow citizens.

Yet, the U.S. Court of Appeals for the Second Circuit recently decided that simply hearing a fellow citizen voluntarily give a prayer at a public meeting could be an “establishment” of religion. Fortunately, the Supreme Court of the United States agreed to review the decision.  The name of the case is Town of Greece v. Galloway. Alliance Defending Freedom represents the Town in a lawsuit filed by two residents who didn’t like the way local volunteers prayed when given the opportunity to open Town Council meetings with an invocation.

The First Amendment of the Constitution states that “Congress shall make no law respecting the establishment of religion.” Note it does not say that Congress shall prevent public acknowledgement or accommodation of religion, nor does it say that Congress shall not recognize religion in public or prohibit public religious expression. It uses the word “establishment.” So what does it mean to “establish” religion, and why is it prohibited in the Constitution?

This country was founded by people who were committed to religious liberty and knew exactly what it meant to “establish” religion. Many of the European countries from which they fled had “official” churches. The state church frequently got the benefit of laws that exacted taxes to support the church. Often laws controlled the way people worshipped or punished people if they acted on beliefs that differed from the state church. These laws restricted religious liberty.

These are the laws that drove the Pilgrims to seek a new land. The Founding Fathers understood the problems of a state-established church. Rather than restrict the people’s faith, the Founder’s added the First Amendment to the Constitution to protect religious liberty. This liberty includes both the right of the individual to exercise his or her religious faith privately and publicly as well as the right of the government to acknowledge and accommodate the faith of its people.

To the writers of the Constitution, the “establishment” of religion was more than simply permitting religious expression in public. They did not fear having to see a religious symbol in public or hear others practice their faith. Need proof? Read the Declaration of Independence that talks of “inalienable rights endowed by our Creator,” or stop by the U.S. Congress and listen to the Chaplain pray to open each day. The Founders did not fear religious expression. They feared a government that would force its people to pay for or participate in a religious exercise.

Hearing a prayer or seeing the Ten Commandments hanging on a wall does not “establish” anything. After all if a person is free to accept, reject, or ignore it, nothing has been “established.”

That legislative bodies open in prayer “establishes” nothing. The people need not participate in or even listen to the prayers, and their failure to do so does not preclude them from full participation in civic affairs. Those who object to a legislative prayer retain the same rights and benefits as every other citizen and are not compelled to do anything against their conscience or beliefs. They simply hear something they don’t like.

Fortunately, the Supreme Court has now agreed to revisit what the Constitution means when it protects against the “establishment” of religion. We pray the Supreme Court affirms that the Constitution protects both the right of the Town of Greece to accommodate citizens who want to pray at the beginning of town meetings and the right of the citizens to choose how they pray.


Brett Harvey

Brett Harvey

Senior Counsel, Vice President of Allied Legal Affairs

Brett Harvey, Esq., serves as senior counsel and vice president of the Grants and Funding Team with Alliance Defending Freedom.


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