The Extent of the Establishment Clause

As you know, my blog largely surrounds the First Amendment with regards to religion, and it is clear that there are many different areas that the realm of religion covers.  There are many constitutional issues that have risen out of religious disputes, and one of the areas of the Constitution that is frequently challenged is the Establishment Clause.  The clause is just a few words, noting that “Congress shall make no law respecting an establishment of religion”.  The text of the clause is identifying the notion that Congress should not favor one religion over others or act in any way that endorses a particular faith.  However, such a short phrase begs the question of the amendment’s ambiguity; what does the Establishment Clause actually mean, and how far does it go?  The Framers certainly were not able to answer every constitutional question at the time the document was drafted, but this presents a substantial issue that had to be dealt with in the future.

Over time, the Court has developed a series of precedents that have sought to determine the extent of the Establishment Clause and give us a sense of what establishing a religion really is.  Various tests like the Sherbert-Yoder test and the Lemon test have given guidance to the Court in deciding future cases regarding the establishment of a religion.  There are too many cases to name in this blog post, but a recent case in point that holds relevance to the Establishment Clause issue would be Hein v. Freedom From Religion Foundation, Inc. (2007).  However, this case did not really contribute much to the direction the Court is taking towards recent Establishment Clause cases, as the key issue was not really decided.  I think it demonstrates the difficulty in finding a sufficient issue for the Court to decide on and argument to make a more expansive test that could be used in these cases.

In this case, the Freedom From Religion Foundation challenged the creation of a new federal department created by President George W. Bush via executive order in 2001.  The White House Office of Faith-Based and Community Initiatives was designed to bolster religious doctrines in localities around the country for those interested in practicing a particular religion.  As a federal department, the FBCI Office was a non-profit organization but enjoyed tax-exempt status and received some funding from Congress via Article I Section 8 of the Constitution, arguing that Congress has the power to distribute funds to them.  The FFRF challenged this tax-exempt standing, the funding from Congress and the creation of the branch as a whole as unconstitutional because it violated the Establishment Clause.  They argued that Congress’s action of allocating funds for the group was improperly supporting religious doctrine.

This case went to the Supreme Court, and Justice Alito delivered a plurality opinion from the Court.  He stated that the FFRF did not have standing to use the Court in this instance, acknowledging the notion that taxpayer standing does not exist.  This means that Alito, as well as Chief Justice Roberts and Justice Kennedy in this opinion, are saying that taxpayers in the FFRF cannot challenge the legitimacy of the Office, regardless of its actual constitutionality.  He also noted that “almost all Executive Branch activity is ultimately funded by some congressional appropriation”.  If the Court decided in favor of FFRF in this case, the precedent it set could be dangerous in limiting congressional funding of potentially necessary executive orders.  Overall, I think that the judgment was correct, but it is also problematic because it delays the Court from deciding on the Establishment Clause issue.  There is still a fair amount of ambiguity surrounding these cases, and it will remain that way until further precedents are developed.

*All information for this story was taken from the US Constitution, accessed here:

As well as the files from the case, located here:


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