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Published online by Cambridge University Press: 24 April 2015
Thomas Curry's synopsis of church-state practices in seventeenth and eighteenth century America is notable for its modesty and balance. When lawyers and judges paint the religious history of that period they picture events like cows on a hillside—all pointing in the same direction. (Of course the cows point different ways in different pictures; it depends on which way the wind is blowing.) The scene Curry describes is more disorderly. This makes it harder to identify trends that we might say were embodied in first amendment principles. But it prefigures, and helps explain, our messy first amendment practices.
Curry argues that two topics dominated church-state discussions from 1600 to 1800: (1) the government's power to legislate about religion, and (2) public financial support for ministers. As to the first issue, Americans gradually accepted the principle, espoused by Roger Williams, that government had no power over matters of religious worship and practice. But they did not live up to this principle. They passed laws about sabbath observance, blasphemy, days of prayer and fasting, and religious qualifications for office. In this, they followed the practice of John Cotton, who thought that the two tables of the Ten Commandments (religion and morals) must stand or fall together. “The principle was the principle of Williams, but the practice was the practice of Cotton.” As to the second issue, financial support for ministers, practice converged more with principle. But there were exceptions, as in New England. And those who opposed support often did so for no principle more lofty than the fear that it would go to the Church of England.
1. See E. Meese, Speech before the American Bar Association (July 9, 1985), reprinted in The Great Debate: Interpreting Our Written Constitution 1 (The Federalist Society 1986)Google Scholar.
2. See W. Brennan, Speech to the Text and Teaching Symposium, Georgetown University (Oct. 12, 1985), reprinted in The Great Debate, supra note 1, at 11.
3. Compare Larson v. Valente 456 U.S. 228, 244-46 (1982) (Brennan, J.) with Marsh v. Chambers, 463 U.S. 783, 787-92 (1983) (Burger, C.J.), and Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (Rehnquist, J., dissenting).
4. Illinois ex rel. McCollum v. Bd. of Ed., 333 U.S. 203 (1948); Zorach v. Clauson, 343 U.S. 306 (1952); Engel v. Vitale, 370 U.S. 421 (1962); Abington School Dist. v. Schempp, 374 U.S. 203 (1963); Stone v. Graham, 449 U.S. 39 (1980); Wallace v. Jaffree, 472 U.S. 38 (1985); Board of Education v. Margens, — U.S. —, 110 S. Ct. 2356 (1990).
5. Epperson v. Arkansas, 393 U.S. 97 (1968); Edwards v. Aquillard, 482 U.S. 578 (1987).
6. Lynch v. Donnelly, 465 U.S. 668 (1984); Allegheny County v. ACLU, 492 U.S. —, 109 S. Ct. 3086 (1989); Chabad v. ACLU, 842 F.2d 655 (3d Cir.), cert denied, 109 S. Ct. 488 (1988). Cf. Marsh v. Chambers, 463 U.S. 783 (1983).
7. See the cases cited in Garvey, , Another Way of Looking at School Aid, 1985 Sup. Ct. Rev. 61, 67 Table IGoogle Scholar.
8. Compare Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963) with Epperson v. Arkansas, 393 U.S. 97 (1968).
9. See Garvey, supra note 7.
10. Dworkin, R., Taking Rights Seriously chs. 4, 7 (1977)Google Scholar.
11. The person may be a legal ‘person,’ such as a corporation. First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765 (1978).
12. U.S. Const, amend. VI.
13. See the slightly varying accounts in Cord, R., Separation of Church and State (1982)Google Scholar; Howe, M., The Garden and the Wilderness ch. 1 (1965)Google Scholar; Katz, W., Religion and American Constitutions 8–10 (1964)Google Scholar.
14. Lemon v. Kurtzman, 403 U.S. 602 (1971). See Aguilar v. Felton, 473 U.S. 402 (1985); Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982); Walz v. Tax Comm'n, 397 U.S. 664 (1970).
15. Rapaczynski, , From Sovereignty to Process: The Jurisprudence of Federalism after Garcia, 1985 Sup. Ct. Rev. 341, 380–395Google Scholar.
16. Com. of Massachusetts v. Mellon, 262 U.S. 447 (1923).
17. Engel v. Vitale, 372 U.S. 421 (1962). See Sutherland, , Establishment According to Engel, 76 Harv. L. Rev. 25 (1962)CrossRefGoogle Scholar.
18. School District v. Schempp, supra note 4. See Brown, , Quis Custodiet Ipsos Custodes?—the School-Prayer Cases, 1963 Sup. Ct. Rev. 1Google Scholar.
19. Flast v. Cohen, 392 U.S. 83 (1968).
20. Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982).
21. Brown, supra note 18, at 31-33.
22. Com. of Massachusetts v. Mellon, 262 U.S. 477 (1923). See also United States v. Richardson, 418 U.S. 166 (1974).
23. Nixon v. Administrator of Gen. Services, 433 U.S. 425, 422 (1977).
24. United States v. Nixon, 418 U.S. 683, 707 (1973); Nixon v. Administrator of Gen. Services, 433 U.S. 425, 443 (1977); Morrison v. Olson, 487 U.S. 654, 2618-22 (1988).
25. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 537-47 (1985).