Establishment Clause

The Establishment Clause opens the First Amendment's religion provisions: "Congress shall make no law respecting an establishment of religion." The Supreme Court applied it to the states in Everson v. Board of Education (1947) through the incorporation doctrine.

What counts as an establishment is disputed. Some see the clause as requiring strict neutrality between religion and non-religion and a wall of separation of church and state; others see it as forbidding a national church and coercion in religious matters while permitting acknowledgment of religion in public life and equal aid to religious groups. For decades courts used the lemon test; in Kennedy v. Bremerton School District (2022), the Court said it had abandoned that test in favor of an approach based on history and tradition.

The clause arises in disputes over school prayer, religious displays on public property, public funding of religious schools and legislative prayer. Its relationship to the Free Exercise Clause is a continuing tension: accommodating religion may be seen as establishing it, while refusing may burden it. Recent decisions have increasingly held that excluding religious groups from public programs violates free exercise.