No Law Respecting an Establishment Meant Something Specific in 1791

Here is a sentence that will get you uninvited from a faculty lounge: the Establishment Clause was written partly to protect state churches. When the First Amendment was ratified in 1791, several states still had official, tax-supported churches, and the clause guaranteed that Congress could not touch them. Massachusetts kept its establishment for another forty-two years, and nobody in Washington thought the Constitution had anything to say about it.

That fact does not mean state churches were good, and they were rightly abandoned. It means the phrase "establishment of religion" had a precise meaning in 1791, and that meaning is very far from the one many Americans learned in school, where a prayer at a football game or a cross on a war memorial is treated as the first step toward a theocracy. Let us recover what the words meant, follow how the Supreme Court lost them in the twentieth century, and see how it found them again in 2022.

The text, and the argument in brief

The religion clauses are sixteen words:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

My thesis has three parts. Here are the premises.

1. In 1791, "an establishment of religion" was a legal term for a specific institution: a church officially supported and privileged by the government, with tax funding, legal control over doctrine or clergy, and civil disadvantages for dissenters.
2. The clause forbade Congress to create such an institution and, by the word "respecting," forbade Congress to legislate about the states' own establishments, for or against.
3. Therefore the clause was never a command to scrub religious expression from public life. It was a limit on the national government's power to build or meddle with official churches.

The conclusion follows: the test for an establishment should be the historical one, asking whether the government is doing what the old establishments did, rather than an abstract inquiry into whether something "endorses" religion. That is exactly the test the Supreme Court adopted in Kennedy v. Bremerton School District (2022). (For a phrase-by-phrase reading of the sixteen words, see Sixteen words on religion in the First Amendment, read phrase by phrase.)

What an establishment looked like

Americans in 1791 did not need a definition. They had lived under establishments. The Church of England was established in England and, before the Revolution, in several southern colonies, including Virginia. Congregational churches were established in most of New England. Historians of the Founding have described the common features of an establishment in some detail, and they are concrete:

• Government control over doctrine and governance. The state, or the crown, had a say in the church's creeds, liturgy or appointment of clergy.
• Mandatory support. Citizens paid taxes or assessments to maintain the established church and its ministers, whatever they believed.
• Compelled attendance. Laws in some places required attendance at worship, at least in principle.
• Restrictions on dissenters. Other denominations faced limits on worship, licensing of preachers or the right to perform marriages.
• Use of the church for civil functions. Established churches kept vital records and performed public duties.
• Political privileges. Office-holding was sometimes limited to members of the established church or to Protestants.

That is what the word meant. An establishment was a legal and financial institution, not a prayer, a monument or a motto. When Virginia debated a general assessment in 1784 and 1785, a tax to support teachers of the Christian religion, Madison wrote his Memorial and Remonstrance against it, and the bill failed. In its place Virginia enacted Jefferson's Statute for Religious Freedom in 1786. The fight was about compelled financial support for churches, which is the hard core of what establishment meant.

Why "respecting" matters

The First Amendment does not say "Congress shall establish no religion." It says Congress shall make no law "respecting" an establishment. The broader word did real work. It meant Congress could neither set up a national church nor pass laws about the establishments that already existed in the states.

The record of the states makes this vivid. After 1791, Connecticut kept its Congregational establishment until its new constitution of 1818. New Hampshire effectively ended its system with a toleration act in 1819. Massachusetts ended its establishment only in 1833, by amending its state constitution. During all those years, no one seriously argued that the First Amendment forbade these arrangements, because it did not apply to the states at all. The First Amendment begins with the word "Congress." The Bill of Rights limited the national government, a point the Supreme Court confirmed in Barron v. Baltimore in 1833, the same year Massachusetts disestablished.

Disestablishment in America was achieved state by state, by citizens persuading their own legislatures. That is federalism doing what it was designed to do, and it worked: every state church was gone by 1833.

The First Congress's chaplains

If you want to know what the men who wrote the clause thought it prohibited, watch what they did. In 1789 both houses of the First Congress chose chaplains to open their sessions with prayer, and the same Congress provided for paying them. That is the same Congress that drafted and proposed the religion clauses.

The same Congress also reenacted the Northwest Ordinance, which declared that "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." And at Congress's request, President Washington proclaimed a national day of thanksgiving in the fall of 1789.

The Supreme Court leaned on the chaplains in Marsh v. Chambers (1983), upholding Nebraska's paid legislative chaplain, and again in Town of Greece v. Galloway (2014), upholding opening prayers at town board meetings. The reasoning is simple: the men who wrote the clause cannot have meant it to forbid what they themselves did in the same session.

How the Court lost the meaning: Everson and Lemon

The modern story begins in 1947 with Everson v. Board of Education. A New Jersey township reimbursed parents for the cost of busing their children to school, including Catholic schools. The Court, in an opinion by Justice Hugo Black, upheld the reimbursement by five to four. But along the way it did two enormous things.

First, it held that the Establishment Clause applies to the states through the Fourteenth Amendment. A clause written partly to keep Congress away from state religious arrangements became a rule binding the states themselves. (How the Bill of Rights came to bind the states, one right at a time, is told in How the Bill of Rights Came to Bind the States, One Right at a Time.)

Second, it adopted Jefferson's 1802 metaphor of a "wall of separation between church and State," a phrase from a letter to the Danbury Baptist Association, not from the Constitution, and declared that the wall "must be kept high and impregnable." A metaphor from a private letter by a man who was in Paris when the First Amendment was drafted became the organizing principle of the clause.

In Lemon v. Kurtzman (1971) the Court then set out a three-part test. A law must have a secular purpose; its primary effect must neither advance nor inhibit religion; and it must not foster an excessive entanglement with religion. Later cases added an "endorsement" inquiry, asking whether a reasonable observer would think the government was endorsing religion.

The results were famously unpredictable. Courts upheld some holiday displays and struck others depending on how many reindeer stood near the crèche. Folks, when your constitutional law turns on the reindeer count, something has gone badly wrong. Lower courts struggled, justices criticized the test for decades, and the Court increasingly ignored it in its own decisions.

How the Court found it again: Kennedy v. Bremerton

In Kennedy v. Bremerton School District (2022) a public high school football coach was disciplined for kneeling to pray briefly at midfield after games. The school district argued that allowing the prayer would risk an Establishment Clause violation. The Supreme Court ruled for the coach, six to three, in an opinion by Justice Gorsuch.

The decision did two things. It held that the coach's brief, personal prayer was protected by the Free Exercise and Free Speech Clauses. And it stated plainly that the Court had long ago abandoned Lemon and its endorsement offshoot, and that the Establishment Clause must be interpreted by reference to historical practices and understandings. In other words: ask what an establishment was, and whether the government is doing that.

Under that test, the coach's prayer was nothing like an establishment. Nobody was taxed to support a church, compelled to attend, disqualified from office or subjected to official doctrine. Coercion of the kind the old establishments practiced, the Court noted, is a hallmark of what the clause forbids, and none was shown. The Court's related decisions in Espinoza v. Montana Department of Revenue (2020) and Carson v. Makin (2022) applied the same logic to school funding: when a state offers a public benefit, it cannot exclude religious schools simply because they are religious, a story told in Espinoza v. Montana and the Blaine Amendments Against Religious Schools.

The strongest objection, answered

Now the other side, at full strength.

The objection. The historical approach ignores three things. First, the Fourteenth Amendment changed the Constitution in 1868; whatever "respecting" meant in 1791, the Establishment Clause now binds the states, and the question is what religious freedom requires in a nation of many faiths. Second, Madison himself was a strict separationist. As President he vetoed bills in 1811 that would have incorporated a church in the District of Columbia and granted federal land to a Baptist church, and in retirement he expressed doubts about congressional chaplains. Third, a pluralistic country needs a government that stays neutral; when officials pray, religious minorities and nonbelievers feel like outsiders in their own country.

That is a serious argument. Here is the answer.

1. Incorporation does not change the meaning of the word incorporated. If the Fourteenth Amendment applies the Establishment Clause to the states, it applies the clause, with its meaning, not a new principle invented in 1947. What is forbidden to the states is what was forbidden to Congress: establishing a church. Justice Thomas has gone further and argued that the clause, as a federalism provision, does not sensibly incorporate at all. One need not go that far to see that incorporation cannot turn "establishment" into "any religious expression by a public employee."
2. Madison's vetoes support the historical test. The 1811 bills involved government chartering of a church's internal governance and a grant of public land to a particular congregation. Those are classic establishment features: state control over church affairs and public financial support. Madison was enforcing the clause's real meaning. His private doubts about chaplains lost to the practice of the First Congress, and the Court has rightly followed the practice.
3. Feeling like an outsider is not the same as being coerced. The old establishments taxed dissenters, jailed preachers and barred them from office. Hearing a prayer you do not share is a cost of living in a free country, the same cost a religious believer pays when hearing views he rejects. Neutrality that requires scrubbing faith from public life is not neutral; it establishes secularism as the public creed. The case that religious liberty is a license to discriminate is answered in 'Religious liberty is a license to discriminate,' answered with the law.
4. The historical test protects minorities, too. It forbids exactly what minority faiths have historically suffered under establishments: compelled support for someone else's church and civil penalties for dissent. That protection is firm and principled, unlike a test that changes with the reindeer.

Why this matters for a family

This is not a lawyers' parlor game. Under the Lemon era, a school could tell a student her valedictory speech could not mention her faith, a city could fear a lawsuit over a memorial cross, and a teacher could worry about a quiet prayer before lunch. Under the historical test, the questions are clear. Is anyone being compelled to worship? Is anyone being taxed to support a church as such? Is the government controlling doctrine or punishing dissent? If not, the Establishment Clause is not the issue.

Washington told the country in his Farewell Address that religion and morality were indispensable supports of political prosperity (see Why Washington's Farewell Address called religion and morality indispensable). He was not establishing a church. He was describing a free people.

The case in brief

1. In 1791 "an establishment of religion" meant a government-backed church with tax support, legal privileges, control over doctrine and penalties for dissenters.
2. The clause barred Congress from creating one and from legislating about the states' own, which lasted until Massachusetts disestablished in 1833.
3. The First Congress hired chaplains and the Court upheld legislative prayer in Marsh (1983) and Town of Greece (2014).
4. Everson (1947) and Lemon (1971) replaced that meaning with a wall metaphor and a shifting test.
5. Kennedy v. Bremerton (2022) returned to history and practice, which protects believers and minority faiths alike.

What you can do: read the First Amendment's religion clauses and your own state constitution's religion article side by side, then attend a school board meeting and ask whether its policies on student and staff religious expression have been updated since 2022.