25 experts on the establishment clause — and why you need them

The Supreme Court will decide if the so-called Peace Cross in Bladensburg, Md., dedicated to World War I soldiers, violates the Constitution's establishment clause. (Ben Jacobson via Creative Commons)

The Supreme Court’s top religion case this term centers on the establishment clause, a much-contested legal protection aimed at preventing excessive entanglement between church and state. Justices must decide if a 40-foot-tall, cross-shaped World War I memorial maintained with government funds in Bladensburg, Md., amounts to unlawful religious favoritism.

Many of the cross’s supporters hope the Supreme Court will do more than allow the memorial to remain on public land. They want justices to adjust how the establishment clause is applied in future cases and affirm that even a secular government can support religious symbols and partner with faith groups.

Regardless of the Supreme Court’s ruling, which is expected by the end of June, the case presents an opportunity to cover the drama surrounding this piece of the First Amendment. Legal experts disagree about the proper relationship between religion and government, but unite in the sense that establishment clause battles are difficult to sort out.

“The establishment clause is rooted in a concept of separating the power of church and state. These are the two most authoritative forces of human existence, and drawing a boundary line between them is not easy,” wrote Marci Hamilton, a constitutional law scholar, for the National Constitution Center.

Recent Supreme Court rulings in cases such as Trinity Lutheran Church of Columbia v. Comer, in which justices said religiously affiliated organizations should be treated the same as other groups in a Missouri grant program, signal that many justices support a more porous boundary.

Similarly, the Trump administration celebrates church-state partnerships. Secretary of Education Betsy DeVos recently cited the Trinity Lutheran ruling as a reason to allow private schools to work with faith-based contractors.

This edition of ReligionLink explores these developments in more detail, offering a snapshot of establishment clause-related debates.

Key terms

  • Establishment clause: The establishment clause is one of two religion-related protections guaranteed by the First Amendment. It states that “Congress shall make no law respecting an establishment of religion.”
  • Establish a religion: Legal experts disagree on what it means to establish a religion. Nearly all say it includes mandating attendance at or financial support of a particular house of worship and interfering with who is ordained. Jurists also agree, in general, that officials shouldn’t privilege one faith group over others, but they clash over what constitutes privilege. Some argue that the establishment clause calls for clear church-state separation, which would mean excluding faith groups from taxpayer-funded grant programs and keeping religious symbols off public property. Others say the Constitution allows for some overlap between the two institutions.  
  • Lemon test: The Lemon test is one method judges use to rule on establishment clause cases. Under this test, a policy or action must have a secular purpose and a primary effect that doesn’t promote religion or encourage excessive church-state entanglement in order to stand. It’s been criticized for being too subjective.
  • Endorsement test: Often thought of as an add-on to the Lemon test, the endorsement test is also used in establishment clause cases. It asks judges to consider how a reasonable observer would react to a government action or publicly funded display, such as the Bladensburg cross, if they knew the historical context surrounding it.

Background reading

On the Bladensburg cross case

On Trinity Lutheran

On establishment clause trends

National sources

  • Mary Anne Case

    Mary Anne Case is a law professor at the University of Chicago. She teaches on a variety of legal topics, including sexual discrimination, religious freedom, constitutional law and feminist jurisprudence.

  • Caroline Mala Corbin

    Caroline Mala Corbin is a law professor at the University of Miami who specializes in First Amendment issues, such as free speech and religious freedom.

  • Marc DeGirolami

    Marc DeGirolami is a law professor and associate director of the Center for Law and Religion at St. John’s University in Queens, New York. He is the author of The Tragedy of Religious Freedom.

  • Garrett Epps

    Garrett Epps is a law professor at the University of Baltimore who specializes in constitutional law. He covers the Supreme Court for The Atlantic as a contributing writer and is the author of several books on the topic, including American Justice 2014: Nine Clashing Visions on the Supreme Court

  • Howard Friedman

    Howard Friedman is a professor of law emeritus at the University of Toledo in Ohio. He maintains a blog called Religion Clause, which tracks religious freedom-related lawsuits in the U.S. and around the world.

  • Richard Garnett

    Richard Garnett is a professor of law and political science at the University of Notre Dame. He is an expert on the Supreme Court, church-state issues, religious liberty and Catholic social thought.

  • Frederick Gedicks

    Frederick Gedicks is an expert on law and religion who teaches at Brigham Young University’s J. Reuben Clark Law School. His current research focuses on how the Supreme Court’s 2014 ruling in Burwell v. Hobby Lobby Stores Inc. affected religious accommodation statutes.

  • Luke Goodrich

    Luke Goodrich is vice president and senior counsel for the Becket Fund for Religious Liberty, a firm that specializes in religious freedom cases. He is also an adjunct professor of constitutional law at the University of Utah.

  • Sarah Barringer Gordon

    Sarah Barringer Gordon is a professor of constitutional law and history at the University of Pennsylvania. She specializes in church-state conflicts and American religious history. She is the author of The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America and The Spirit of the Law: Religious Voices and the Constitution in Modern America

  • Marci A. Hamilton

    Marci A. Hamilton is the Robert A. Fox Leadership Program Professor of Practice at the University of Pennsylvania. She is also the founder, CEO and academic director for Child USA, a nonprofit think tank aimed at ending child abuse. Hamilton, who began her career as a lawyer, is an expert on child sex abuse statutes, as well as law and religion. She is author of God vs. the Gavel: The Perils of Extreme Religious Liberty.

  • Charles Haynes

    Charles C. Haynes is the founding director of the Religious Freedom Center at the Freedom Forum Institute. He writes and speaks extensively on religious freedom and faith in public life, specializing in church-state conflict related to public schools.

     

  • Holly Hollman

    Holly Hollman is general counsel for and associate executive director of the Baptist Joint Committee for Religious Liberty, where she specializes in church-state issues. She is also an adjunct law professor at Georgetown University.  Arrange an interview through Cherilyn Crowe.

  • Paul Horwitz

    Paul Horwitz is a professor of law at the University of Alabama in Tuscaloosa, where he specializes in law and religion, constitutional law and the First Amendment. He is the author of The Agnostic Age: Law, Religion and the Constitution and First Amendment Institutions.

  • Rebecca S. Markert

    Rebecca S. Markert serves as legal director for the Freedom from Religion Foundation. She is an expert on First Amendment litigation and typically works on cases related to religion in public schools and religious symbols on government property.

    Contact: 608-256-8900.
  • Michael McConnell

    Michael McConnell directs the Constitutional Law Center at Stanford Law School, where he also teaches. He’s argued 15 cases before the Supreme Court and written numerous books and articles on church-state issues and the Constitution. He served as a circuit judge on the 10th Circuit Court of Appeals from 2002 to 2009. 

  • Monica Miller

    Monica Miller is senior counsel for the American Humanist Association. She argued against the Bladensburg cross before the Supreme Court. Arrange an interview through Sarah Henry.

  • Kurt Lash

    Kurt Lash is a constitutional law scholar at the University of Richmond, where he directs the Richmond Program on the American Constitution.

  • Rachel Laser

    Rachel Laser is the president and CEO of Americans United for Separation of Church and State, an advocacy organization that seeks to reduce entanglement between the government and faith groups. She previously served as deputy director of the Religious Action Center of Reform Judaism, where she worked on social justice issues, including gun control, abortion rights and access and reproductive rights. Arrange an interview through Tali Israeli.

  • Douglas Laycock

    Douglas Laycock is a professor of law and religious studies at the University of Virginia and an authority on religious liberty. He’s currently working on a book about religious freedom, free speech and the establishment clause.

  • Melissa Rogers

    Melissa Rogers is a nonresident senior fellow in governance studies for Brookings, where she specializes in the First Amendment’s religion clauses and religion and faith-related political issues. She previously served as special assistant to President Barack Obama and executive director of the White House Office of Faith-based and Neighborhood Partnerships. She was a leader in the coalition that urged Congress to pass the Religious Land Use and Institutionalized Persons Act. Arrange an interview through Michaela Broyles.

  • Kelly Shackelford

    Kelly Shackelford is president and CEO of First Liberty Institute, a Texas law firm that works to preserve religious freedom and argued in support of the Bladensburg cross before the Supreme Court.

  • Steven D. Smith

    Steven D. Smith serves as co-executive director of the Institute for Law and Religion and the Institute for Law and Philosophy at the University of San Diego, where he also teaches constitutional law.

  • Robert Tuttle

    Robert Tuttle is a professor of law and religion at George Washington University and the former co-director of the Legal Tracking Project of the Roundtable on Religion and Social Welfare Policy, which researched government funding of faith-based social service programs. He co-authored, along with Ira C. Lupu, Secular Government, Religious People.

  • Kristen Waggoner

    Kristen Waggoner is senior vice president for the U.S. legal system and communications for the Alliance Defending Freedom, a firm known for defending religious objectors to same-sex marriage on the grounds of religious freedom. She argued Masterpiece Cakeshop v. Colorado Civil Rights Commission before the Supreme Court. Arrange an interview through this media contact form.

  • John Witte Jr.

    John Witte Jr. directs the Center for the Study of Law and Religion at Emory University, where he also teaches law. He is an expert on legal issues related to marriage, family, Christianity and religious freedom. His books include Church, State and Family: Reconciling Traditional Teachings and Modern Liberties and Religion and the American Constitutional Experiment.

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