18

The first amendment says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The tenth amendment says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Since Congress can not establish a religion, and any power not delegated to U.S. by Constitution is reserved to the States, this seems to imply that the States can establish religions. Is this correct?

If, say, Florida wanted to make Scientology the official religion of Florida, would the federal government have any right to prevent this?

  • Found this helpful link: Incorporation of the Bill of Rights – PyRulez Dec 30 '15 at 16:52
  • 1
    Of course a state is free to establish its own religion under the Constitution. But the Constitution has been dead for a long time. People in power have figured out that it's easier to ignore and misinterpret it than to go through the proper amendment procedure when they don't like what it actually says. – user3886 Dec 31 '15 at 2:44
  • It would seem so; most U.S. states mention God in the preambles of their constitutions. – Geremia Feb 26 at 23:09
14

No. The Fourteenth Amendment says:

nor shall any state deprive any person of life, liberty, or property, without due process of law;

The Supreme Court has determined that this clause incorporates much of the Bill of Rights. The logic is mildly tortured, but it's basically that "due process of law" means "due process of a law that is compatible with the fundamental rights of a free society." This logic is known as "substantive due process," because it reads in to "due process of law" requirements about what those laws can do (as opposed to procedural due process, which is about the actual procedures being used).

It's pretty settled that the Bill of Rights, after the 14th Amendment, should apply to the states. There's another possible way to get there: the 14th Amendment says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which Justice Thomas recently thought meant that the Second Amendment applies to the states in a concurring opinion. But as of now, substantive due process is the standard logic for it.

Virtually all of the Bill of Rights is incorporated against the states. There are a couple things which aren't (like juries in lawsuits, and grand juries), but the Establisment Clause is incorporated (see Everson v. Board of Education, 330 US 1).

  • I don't have the rep to make this an answer, but I would argue that this part of the 14th Amendment is relevant: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [...]". Freedom from state-established religion is arguably a "privilege" of all United States citizens, so no State can take that way. – barrycarter Nov 17 '16 at 22:05
  • @barrycarter That would be the normal way to read the amendment. However, caselaw has restricted the Privileges or Immunities Clause to the point that it's pretty much never applicable. – cpast Nov 17 '16 at 22:17
11

Everson v. Board of Education applied the establishment clause of the 1st amendment to state law.

Applying the Bill of Rights to state law is known as incorporation as in, incorporating the Bill of Rights to the states. It has had some controversy as reflected in U.S. Supreme Court decisions as to how, which and when specific amendments are or were incorporated. The most recent incorporation came in McDonald v. Chicago in 2010. There are those who argue that the 14th amendment was designed to incorporate the first 8 amendments. Others have attempted to argue, even as late as that 2010 case, that not all amendments are incorporated against state law.

In Everson v. Board of Education, the Supreme Court wrote:

"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16.

All justices, in this decision, agreed that the 1st amendment was incorporated against the states. They disagreed whether or not that incorporation should result in striking down the question that was before the court (whether the state could pay for school buses to take children to religious based private schools.) In the end, it was a 5-4 decision that the states could pay for transportation.

4

Most U.S. states had state religions at the time of the First Amendment. The First Amendment prevented the Federal Government from creating its own state-religion to trump those of the states.

In more recent vintage, the Supreme Court has adopted the principle of separation of church and state so that now the First Amendment prohibits that which it was designed to protect.

  • Do you have a source for most states having state religions? (I know Pennsylvania didn't.) – PyRulez Dec 31 '15 at 12:27
  • Wikipedia has tabular list but it is incomplete. en.wikipedia.org/wiki/… One of Clarence Thomas's dissents gives a list. – user3344003 Dec 31 '15 at 15:58

protected by jimsug Dec 31 '15 at 3:54

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