Page 59 - Freedom in the world_Neat

In that year, the Supreme Court decided Everson v. Board of Education (1947), in which
the plaintiffs challenged the provision of public school busing to students attending
religious schools as a violation of the federal Establishment Clause. Although the court
rejected the challenge to that particular program, it affirmed the broader proposition that
the federal Establishment Clause applied to the states through the Fourteenth Amendment.
Thus, after Everson, the provision that once protected state establishments from federal
interference was construed to forbid them.
Everson was also important because it first incorporated into Establishment Clause
jurisprudence Thomas Jefferson’s metaphor of the “wall of separation between church and
State” from his 1802 letter to the Danbury Baptists. Everson famously declared that the
First Amendment “was intended to erect” such a wall, which the court must keep “high and
impregnable,” “not approv[ing] the slightest breach.” Despite its late introduction into First
Amendment jurisprudence, this concept has profoundly shaped the law ever since. It
ushered in a new era of federal constitutional challenges to governmental conduct, ranging
from aid to religious institutions (especially schools), to cultural expression that includes
religion, to the accommodation of religion.
The debate over the scope of the Establishment Clause triggered by Everson continues to
this day.
The Free Exercise Clause. The freedom to worship—or more broadly, the freedom of
religious exercise—provoked somewhat less controversy among the drafters of the
Constitution. Like the Establishment Clause, the Free Exercise Clause as originally written
did not apply to state and local governments and therefore had relatively little impact on
the day-to-day religious practices of most citizens. Moreover, from the beginning, most
state constitutions protected freedom of worship, often with the proviso that one’s
religious practices should not disturb the peace and public order.2
Still, the scope of the right was the subject of debate in the first Congress. Congress
rejected a proposal by James Madison that contained a broad guarantee for “freedom of
conscience” for all citizens, as well as a conscientious-objector provision exempting
religious objectors from military service.3 Conscientious objection had arrived in America
with the Quakers, who were at the time a disfavored religious minority. Early Quakers (and
members of other so-called peace sects) suffered criminal penalties, corporal punishment,
and even the threat of death for their refusal to serve in the militia.4
Instead, Congress passed more general language in the First Amendment that protected
the “free exercise” of religion and remained silent on the issue of conscientious
objectors.5 The problem of religious conscientious objectors again arose during the Civil
War, when the federal government at last exempted conscientious objectors from military
service, provided that they performed public service in a hospital or elsewhere. Since that
time, whenever a military draft has been in place, Congress has provided a similar
exemption.6
The degree to which “free exercise” exempts religious activities from generally applicable
laws remains the subject of sharp debate today. This results partly from the Supreme
Court’s decision in 1940 to apply the Free Exercise Clause to the states.

The No Religious Test Clause. The framers of the Constitution also adopted a clause to
guarantee that “no religious test shall ever be required as a qualification to any office or
public trust under the United States.” As with the Constitution’s other religious protections,
however, the “no religious test” clause of Article VI did not originally apply to the states,

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