Church-State Relations

>>> Item number 948, dated 94/12/13 07:26:00 -- ALL 

Date:         Tue, 13 Dec 1994 07:26:00 -0600
Reply-To:     H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
Sender:       H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
From:         Chris Waldrep <cfcrw@uxa.ecn.bgu.edu>
Subject:      query on church-state relations

From: Hughie Lawson, Murray State

What was the latest date, at least in theory, at which a state of the United States could have had, in conformity with the U.S Constitution, an established church?

The premise of the question is that the Constitution and the first ten amendments forbade a federal establishment of religion, but also forbade federal interference with state establishments of religion. A few weak state establishments survived the Revolution and endured until about the 1830's.

Hughie Lawson, Murray State
a06432f@msumusic

>>> Item number 949, dated 94/12/13 18:33:04 -- ALL 

Date:         Tue, 13 Dec 1994 18:33:04 -0600
Reply-To:     H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
Sender:       H-Net and ASLH Legal History Discussion list <H-LAW@UICVM.BITNET>
From:         Chris Waldrep <cfcrw@uxa.ecn.bgu.edu>
Subject:      Church-State Relations

In theory at least, one might argue that states could have maintained establishments until 1947 when the decision in *Everson v. Board of Education* applied the Establishment Clause to the states as well as to the federal government.

However, I should think that given the fact that First Amendment provisions were among the first to be incorporated, starting in 1925, that a challenge to a state establishment might well have led to the *Everson* resulta decade or more earlier. Melvin Urofsky
Virginia Commonwealth University
murofsky@cabell.vcu.edu

One answer is that states are constitutionally allowed to establish a church today. At least if one believes Ed Meese and Brevard Hand, the Fourteenth Amendment does not incorporate the establishment Clause. This view is not entirely irrational, witness the proposed Blaine Amendment which would seem to be entirely superfluous if everyone believed that the Fourteenth Amendment protected religious freedom. Another candidate for the right answer is 1940, the year the Supreme Court declared that the Fourteenth Amendment incorporated the religion clauses (or even 1947, when incorporation of the Establishment clause was made explicit). Still another candidate is 1789, when according to some abolitionists and constitutional theorists, the Constitution somehow prohibited states from violating fundamental freedoms (don't ask me to defend this one).

In short, the answer to "when, in theory, could states no longer establish a church" depends on what constitutionala theory you believe in.

Mark A. Graber
Government, U. Maryland
mgraber@bss2.umd.edu

Everson v. Bd. of Educ., 330 U.S. 1 (1947), appears to have been the first Supreme Court decision in which a majority of the Justices agreed to the proposition that the establishment clause of the first amendment applies to the states (by reason of the "incorporation" or "absorption" of the amendment's prohibitions into the due process clause of the fourteenth amendment). (The novelty of the proposition may be evidenced in the fact that twenty years earlier a challenge had been raised to a state-funded textbook program, and no one appears to have even argued an establishment clause violation. Cochran v. Louisiana Bd. of Ed., 281 U.S. 370 (1930).)

So, there are at least two possible dates after which it would have been theoretically unconstitutional for a state to establish a religion: 1868, when the fourteenth amendment was adopted; or 1947, when a majority of the court got around to concluding that the fourteenth forbids state establishments. 

               Charlie Hallinan
               hallinac@udavxb.oca.udayton.edu
               University of Dayton School of Law
               300 College Park
               Dayton, OH 45469-1320
               (513) 229-3031

If the question relates to Supreme Court jurisprudence, the answer might be as late as 1947, when the Court for the first time held that the Establishment Clause (as incorporated by the Fourteenth Amendment) prohibited state assistance to church-related schools in the Everson case. It took the Court until 1925 to hold that ANY part of the First Amendment was incorporated against the states via the Fourteenth and until 1931 to strike down a state law under any part of the First Amendment.

--
Jonathan L. Entin
Professor of Law
Case Western Reserve University
jle@po.cwru.edu (Internet)

You might also consider the Mormon state of Deseret in the 1840s & 50s. Certainly, to some extent the LDS Church was suppressed by the Federal Authorities, but also, there was considerable accomodation until the 1860s. 

     Rob K. Omura
     University of Calgary
     romura@acs.ucalgary.ca

     "The world is complete and achieves its end at every single

moment." -- Nietzsche

;)