Can States Endorse Religion?

Can States Endorse Religion?

Thanks to Andrew Seidel’s book The Founding Myth, I have spent the last few weeks more perturbed than usual about the mixing of church and state. It’s always bothered me, but this book, and a few other factors, have started to really make me angry that the Constitution is so frequently broken by people who are trying to rewrite American history into something that it isn’t.

In addition to reading The Founding Myth, I also started watching The Family on Netflix, which is a documentary exposing the right-wing Christian group that puts on the annual National Prayer Breakfast and controls members of our government in even more nefarious ways.

Finally, as I was driving through my hometown last month, I saw that they had a nativity scene on the front lawn of their town hall.

I knew that this directly violated the Establishment Clause of the First Amendment, and (after reporting it to the FFRF) I wrote to the town to tell them so, writing in my politest tone:

Hello Sir or Ma’am,

I am afraid that I have observed a violation of the First Amendment of the Constitution of the United States of America in that there is a Christian nativity scene being depicted on the front lawn of the _ Borough Building.

If you were not aware, this violates the First Amendment because it is promoting one specific religion on government property. The Establishment Clause of the First Amendment states,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” the first half of which your display is violating.

I am informing you that this violation has been reported to the Freedom from Religion Foundation, and I sincerely hope that you will reconsider displaying the Christian nativity on government property.

Thank you,
Rebekah K

They responded the next morning, saying,

Hi Rebekah, there is a crèche outside the front of the building that covers all denominations.

To this, I said,

Thank you so much for getting back to me in a timely manner. It means a lot that you’ve taken the time to respond during this busy season.

Unfortunately, I’m afraid I don’t understand what you mean in that the crèche covers all denominations. Absolutely, it does cover all denominations of New Testament Christianity, but in our American nation and even within our own small town, citizens of many different non-Christian religions and even non-religious beliefs are present.

In what way will you equally accommodate for our town’s Jews and Muslims, and even atheists and Satanists?

For more information, I recommend perusing what qualifies a crèche as a violation of the Establishment Clause here: Additionally, I would hope that I don’t have to get the Pittsburgh Freethought Community involved in addition to the Freedom from Religion Foundation.

Thank you,
Rebekah K

They never responded again. There were a few things that invalidated my feeble attempt at equality, some of which I knew at the time and some of which I didn’t. For one thing, I don’t live there anymore. It was a coincidence that I was driving past that location at all, and I haven’t been back since. Secondly, I first saw it on December 19th, and it was probably about to be taken down shortly after anyways. I’m very grateful that an FFRF representative recently got back to me, but I don’t think I will pursue this exact fight, especially since I wouldn’t be frequently making the drive back to that town to speak to people or check whether or not it’s still there. Instead, I will check by the town hall of my new town come Christmas 2020, which seems more worthwhile.

What I didn’t know as I sent these emails was that showing this crèche on the town hall lawn didn’t directly violate the Establishment Clause at its face. Over Christmas, as we were talking about The Founding Myth, my brother-in-law brought to my attention the fact that when the First Amendment says only “Congress shall make no law,” it really only means that Congress shall make no law. I had the unfortunate revelation that my hometown’s borough building isn’t Congress, and erecting a crèche isn’t making a law.

Fortunately, in the case of me not looking like a complete idiot, I still believe that what my hometown did was unconstitutional. This is due to my perusal of the FFRF page I shared with the representative in my email, which lists seven questions that you have to ask yourself about a religious display in order to actually determine whether or not it is Constitutional. A lot of these factors have been clarified through various court cases throughout the years—even one right here in Pittsburgh—but I’ll let you peruse that page on your own.

When I left the town-hall-nativity issue behind, other gears really started turning for me. As my brother-in-law had pointed out, when the First Amendment says, “Congress shall make no law,” the only entity not allowed to make a law is Congress. Congress isn’t states. States, then, can determine their own laws “respecting an establishment of religion or prohibiting the free exercise thereof.”

I’m not a political scientist by a long shot, and I know that states do still have to abide by some level of separation between religion and government, but I don’t explicitly know how it is enforced. Out of curiosity, I started looking up what state constitutions say, and what I found shocked me, both in how unwelcome I suddenly felt in my own state and how in my twenty-four years I had never known that Pennsylvania’s state constitution says this. My state’s constitutions references to god or religion are as follows:


WE, the people of the Commonwealth of Pennsylvania, grateful to Almighty God for the blessings of civil and religious liberty, and humbly invoking His guidance, do ordain and establish this Constitution.

§ 3. Religious freedom.

All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent; no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preference shall ever be given by law to any religious establishments or modes of worship.

§ 4. Religion.

No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this Commonwealth.

Parts of this may look depressing to me and my fellow PA atheists, but it could be much worse. Yes, it’s very annoying that it makes the assumption that all the people of Pennsylvania are “grateful to Almighty God” and “humbly invoking His guidance” when we very clearly are not. But to me, this is just rhetoric, and if it is somehow affecting my rights and freedom (other than not representing my view), then I don’t know about it.

Section 3 on religious freedom actually seems like it favors every citizen regardless of their beliefs. Section 4 is, of course, a bit more questionable, but I’ve learned not to infer from a constitution anything more than what is explicitly stated. If I’m interpreting it correctly, Section 4 is saying that no one who believes in god, heaven, or hell is automatically disqualified from holding office in PA. It doesn’t look to me like this is saying with certainty that nonbelievers can’t run, only that believers surely can. Maybe it’s still unequal and should just say that no one’s religious beliefs or lack thereof would prohibit them from holding office.

Frustratingly, there are still other states whose constitutions do prohibit nonbelievers from holding office: Arkansas, Maryland, Mississippi, North Carolina, South Carolina, Tennessee, and Texas. Thanks to Roy Torcaso and Herb Silverman, the statutes for Maryland and South Carolina, respectively, have been explicitly struck down by federal courts due to violating the Establishment and No Religious Test Clauses.

If you live in one of the remaining states and you don’t believe in god, I dare you to run for office so that you, too, can be the reason why the states can no longer discriminate against atheists. It’s up to us to hold state governments accountable for what is right, even if it goes against their constitutions.

0 thoughts on “Can States Endorse Religion?

  • January 12, 2020 at 1:02 pm

    All very depressing. In the UK the National Secular Society is still campaigning to end the establishment of the Church of England as the official state religion. In our House of Lords 26 bishops and 2 archbishops still sit by right, without having to be elected, and etiquette demands that if a bishop stands up to speak whoever is speaking at the time must immediately defer to them. All in a nation where those who have no religion now outnumber the religious. As your president might say: ‘Sad; so sad’…

  • January 12, 2020 at 1:12 pm

    Thank you for fixing the page. When I first checked, I could only get the title.
    Yes, it is true that the 1st amendment speaks only about what Congress can do. I am not a lawyer, but I think it is usually understood that the 14th amendment applies to extend this beyond congress, so that it also applies to states and local government authorities.

  • January 12, 2020 at 1:27 pm

    The Tenth Amendment of the Constitution (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.) can be applied to hold states to the rights and privileges granted by the Constitution, but also grants to the states the right to make all other kinds of laws they so choose. (This is why the “minimal government” claimed as having been created by the Founders is hooey. Our collective governments have powers that are complete and broad.
    One way your town can allow a creche over Xmas is to allow displays from every other religious group which requests one. Your town should really not be funding this display, just providing the site to a community group who pays for it. If they funded it, they are on the hook for any other display requested by another religion for one of their holidays … otherwise they are giving preference to one religion over another.
    Interestingly, the religions most supportive of keeping government out of the religion biz, back in the eighteenth century were … wait for it … the evangelical sects! They were small at the time and if governments endorsed “official religions” (and funded preachers, churches, etc.) they felt that since they didn’t have enough members to qualify as the state’s religions (and some states did have them at the time) that they would not be able to suck at the state’s teat and would wither and die. They didn’t want their “competitors” to have that advantage.

  • January 12, 2020 at 2:26 pm

    Rebekah, in the case of Everson v. Board of Education, 330 U.S. 1 (1947), the U.S. Supreme Court held that the Establishment Clause (“Congress shall make no law respecting an establishment of religion”) of the First Amendment to the U.S. Constitution applies to state governments (including their political subdivisions) by way of the Fourteenth Amendment Due Process Clause. For further details of the constitutional litigation of Establishment Clause issues, see chapter 10 of my book The First American Founder: Roger Williams and Freedom of Conscience (Pittsburgh: Philosophia, 2015). See also my “Course Materials for an October 28, 2016 Seminar on ‘Separation of Religion and Government from the 1787 U.S. Constitution to the Present’ ” ( This issue continues to be litigated because many local governments still are not aware—or don’t care—about these principles. Alan

  • January 12, 2020 at 2:38 pm

    Welcome to the real world. I grew up in PA and now reside in TX, but I do not plan to run for office. Even in this state a Muslim would beat me (no disrespect or Islamophobia intended, but that faith is slightly more popular then atheists, according to PEW or somebody).
    How many atheists hold national or state-wide office in any state? Does anyone know?
    Rebekah K. for for Congress!!! 🙂

    • January 14, 2020 at 6:58 pm

      Bill, the kicker in that is, ‘does anyone have to know?” I suspect in decades long past many people walked the christian walk, and went to church like any good citizen, but they were, at heart, galloping atheists.
      In the same way that gays are finally coming out of their closet, I think atheists are, too.
      There was a time when you did NOT admit to nonbelief, any more than you would admit to being gay. It wasn’t wise, or safe. And I seriously wonder just how many of our leaders and politicians and teachers, etc, were actually hiding behind a faith they no longer espoused.

  • January 12, 2020 at 2:55 pm

    Also UK based here waves.
    There is a massive issue with Faith based Schools in the UK. These schools (that get funded by the government) are able to stop potential pupils from coming to the school depending on their religious affiliation – through their parents and their religious institutional attendance records. It’s still around a third of schools in the UK that are faith schools, and these school are still some of the best performing school in the UK.
    The reality as well is that the government here in the UK will let churches run things like mother and toddler groups, food banks, drop in centers, job clubs, money management courses etc. Why? Because it means the government isn’t having to provide solutions to these social and economic needs. Rather they can cut funding to none religious resources and signpost to these ‘free’ faith based services. This means that religious views are being expressed to families at their time of need, which in my opinion isn’t right, fair or just.
    We need to re-evaluate how we look after the needing in our society, so when anyone needs and accesses social or economic support there is healthy, honest, none-religious options that will provide support, rather than support and evangelism. Any one of us might and have accessed these kinds of resources before, we shouldn’t have to walk into a church to access them.

  • January 12, 2020 at 3:27 pm

    Thanks Rebekah. I had no idea belief in god was written into state constitutions like that. I think the South Carolina law was challenge by someone (an atheist) who ran specifically to challenge the law.
    It is one thing what is written in the Constitution and how it gets interpreted by the Supreme Court. An each justice has there own judicial philosophy that they may or may not follow. There is a case before the Court now on employment discrimination against two gay and one transgender individuals. Justice Gorsuch appears to be the swing vote. His judicial philosophy is to go by what is written in the law. In this case whether these individuals are protected by Title VII of the Civil Rights act. Which states one cannot discriminate because of a person sex. But sex can be interpret broadly and can refer to other aspects other than biological sex. Sex is most often thought of as a sexual act, so it should cover the gay people, and sex is directly involved in gender identity terms. In oral arguments Gorsuch was saying it appeared that these were covered by the Act. He also noted that a favorable decision could lead to upsetting social issues. I am waiting if he sticks my his judicial guns and votes in favor or whether he will throw them out because of social fears.
    And the same is true on ruling on the constitutionality cases. Sometimes the Court will rule broadly and go beyond the text of the constitution and sometimes they will follow the straight an narrowness of the Constitution. It is said that the Constitution is a living document. The First Amendment has been interpreted broadly to rule against some religious displays by local governments. But, hey, Congress opens each sessions with a prayer from a chaplain who has been ordained by some church. We live in a mix up world and law is no different.


What do you think?