There is a strong body of literature explaining the history of the First Amendment cases and their application, and it is not the purpose of this article to fully rehash or summarize this literature. If that were my purpose, I believe there is almost a self-evident case that whatever the Executive Branch might do in it's foreign aid program, it would not be "Congress [making a law] respecting an establishment of religion." I will limit the legal discussion, therefore, to the following four paragraphs.
Author Barry Adamson, in his book, Freedom of Religion and the First Amendment and the Supreme Court (Pelican Publishing Co 2008), has given a masterful and very detailed analysis of the meaning of the term "establishment", and the history of this particular word in the First Amendment. Unlike today, the term was used in the late 18th century predominantly to mean an "institution" of religion. Most of the colonies had already enacted their own versions of the establishment clause, in a reaction to public outrage over the state government support for various sects or factions especially the Congregationalists (in the north) or the Anglican churches (in the south). Many of these same colonies, in the campaign to ratify the Constitution, were promised by one James Madison and others, that an equivalent provision would be considered as an amendment to the U.S. Constitution incorporating essential rights. We know now the outcome as the first 10 amendments. There is no question but that it was aimed only at the preventing the establishment of a national, government sanctioned religion with compelled attendance, tithing, privileges concerning public office, etc. It achieves this by saying, elegantly and simply, that Congress would make no law about any such institution, coupled with the free exercise clause which immediately follows. It said and meant nothing about the Executive Branch. Moreover, virtually the same group of individuals, at almost the same time, approved a number of laws indicating they did not understand the term to mean government and religion should be hermetically separated, but rather that no particular sect should be favored by government. For example, in August of 1789 they delivered a bill to President Washington (the Northwest Ordinance) which declared that "religion, morality and knowledge, being necessary to good government . . . shall forever be encouraged." It was made a condition to the admission of future states, that each have a constitution consistent with the principals therein expressed. They passed the 1789 Judiciary Act requiring all federal judges to take an oath followed by "So help me God." And they approved in September of 1789 a Thanksgiving Resolution in which they requested a national day of thanksgiving to "Almighty God." In later years, Congress would approve coinage (1864), a national anthem (1931) and motto (1956) with "In God We Trust". A national anthem was approved in 1931 with "In God is our trust", the pledge of allegiance phrase "one nation under God" was signed into law in 1954. It is a safe bet that virtually all of the Founders, and certainly the author of the clause (James Madison), would have been, say, bewildered by a 9th Circuit decision in 2002 that the words "under God" in the pledge of allegiance violate the establishment clause. That court was overruled, although other cases now may be pending on this same point.
The modern extension of the establishment clause to actions of the Executive Branch first happened in 1947, in the case of Everson vs. Board of Education [2]. It had earlier been made applicable to the States also, via a between-the-lines reading of the 14th Amendment as a type of protected "liberty" interest. [3] It has evolved now into a doctrine to prevent, among other things, "excessive entanglement" of the government with religion sufficiently ambiguous as to give courts great leeway to come up with a variety of decisions, turning (primarily I submit) on their own varying degrees of respect for historical traditions. Lemon v. Kurtzman [4]. Most of the reasoning derives from a famous phrase in a letter one Thomas Jefferson wrote in 1801 to a Baptist group in Connecticut that wished to gain his favor in their own efforts to support a state "disestablishment" clause in that state. Everson and latter decisions take as evidence of the Founders' intent a reference to the building of a "wall of separation between Church & State." This was his phrase, not Madison's nor the Constitution's. Jefferson lived in France from 1784 to 1789 and was not involved in the drafting of or the debate about establishment clause, though he did have a hand in drafting early versions of a free exercise clause for the Virginia colony's constitution.
Jefferson's letter was not written as an analysis of the First Amendment. He had just been through a very bitter campaign for the Presidency, in which he was accused of being an atheist by, among others, Federalists and supporters of the Congregationalist sect in Connecticut. He was strongly criticized for not proclaiming days of national thanksgiving as his predecessor (also a Founder one present during the debate) had routinely done. He correctly anticipated that the letter would be widely republished, and he saw an opportunity to defend publicly his views and practices. He sought prior advice from others for this very purpose. It was a political letter in every sense.
As stated, the phrase "separation of church and state" does not appear in the Constitution, and I leave the reader to the Adamson book for a persuasive argument that even Jefferson would be quite shocked at the lengths to which his phrase has been taken. Or better yet, the 2005 dissent by Justice Scalia to McCreary v. ACLU, 545 U.S. 844, found at www.law.cornell.edu/supct/html/03-1693.ZD.html in which he describes the Lemon test as "brain-spun." Yet, as Justice Jackson observed in Brown v. Allen in 1953, "We [i.e., the Supreme Court] are not final because we are infallible, but we are infallible only because we are final."[5] William J. Brennan once correctly boasted: "You can do anything around here with five votes."[6] In the current era of more strict construction, I submit three possible legal conclusions of diminishing breadth: (1) the actual language mentions only laws by Congress not the entire government; (2) it says nothing about foreign aid; and (3) it should not limit how our government must fight a war on terrorism.
The argument I have, however, is not simply about how to interpret past decisions, all of which long predate the war on terrorism. It is also about whether the management of USAID, or other agencies of the USG, or the White House, should make an effort to overturn or reexamine the more conservative [read "brain-spun"] interpretations which clearly have the upper hand at present. This is as much a management issue as a legal issue perhaps even more so. The matter has not been litigated, and until recently, it has not even been broadly and seriously discussed at the highest levels of our government. Only management can make that occur.
A motion for summary judgment is not full litigation of a matter. Lamont v. Wood meant simply that the Second Circuit would not throw the plaintiffs out on legal arguments alone. It is one thing to say the First Amendment applies overseas; it is something else to say exactly what it means overseas in the context of a given proposed act of the Executive Branch or whether the First Amendment would be violated in a given instance. After the Wood ruling, USAID settled the case I called it preemptive capitulation without returning to the trial court as the Second Circuit expressly suggested, to have a trial on the merits. And in any event, it was almost two decades years ago, long before our current wars, and it did not/not involve the highest court of the land.
The War on Terrorism has changed things. We clearly are already excessively entangled with religion. If we are to get effectively un-entangled, we should not be shy about pushing this matter to the highest level of our judicial system or from having a real trial if necessary. We can build schools and roads and latrines, and we can promote democratic governance up every wazoo in the Middle East; but if we do not help moderate Islam spread an expressly religious message of moderation, we are not fighting on the most important battlefield of all: the mind and religious opinions of very religious enemies.
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