united-states human-rights religion first-amendment
Can U.S. states establish state religions?
<p>The first amendment says:</p>

<blockquote>
  <p>Congress shall make no law respecting an establishment of religion, or
      prohibiting the free exercise thereof; or abridging the freedom of
      speech, or of the press; or the right of the people peaceably to
      assemble, and to petition the Government for a redress of grievances.</p>
</blockquote>

<p>The tenth amendment says:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>Since Congress can not establish a religion, and any power not delegated to U.S. by Constitution is reserved to the States, this seems to imply that the <em>States can establish religions</em>. Is this correct?</p>

<p>If, say, Florida wanted to make Scientology the official religion of Florida, would the federal government have any right to prevent this?</p>

<p>No. The Fourteenth Amendment says:</p>

<blockquote>
  <p>nor shall any state deprive any person of life, liberty, or property, without due process of law;</p>
</blockquote>

<p>The Supreme Court has determined that this clause <em>incorporates</em> much of the Bill of Rights. The logic is mildly tortured, but it's basically that "due process of law" means "due process of a law that is compatible with the fundamental rights of a free society." This logic is known as "substantive due process," because it reads in to "due process of law" requirements about what those laws can do (as opposed to <em>procedural</em> due process, which is about the actual procedures being used).</p>

<p>It's pretty settled that the Bill of Rights, after the 14th Amendment, <em>should</em> apply to the states. There's another possible way to get there: the 14th Amendment says "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," which Justice Thomas recently thought meant that the Second Amendment applies to the states in a concurring opinion. But as of now, substantive due process is the standard logic for it.</p>

<p>Virtually all of the Bill of Rights is incorporated against the states. There are a couple things which <em>aren't</em> (like juries in lawsuits, and grand juries), but the Establisment Clause is incorporated (see <em>Everson v. Board of Education</em>, <a href="https://supreme.justia.com/cases/federal/us/330/1/case.html">330 US 1</a>).</p>

<p><a href="https://www.oyez.org/cases/1940-1955/330us1">Everson v. Board of Education</a> applied the establishment clause of the 1st amendment to state law.</p>

<p>Applying the Bill of Rights to state law is known as incorporation as in, incorporating the Bill of Rights to the states. It has had some controversy as reflected in U.S. Supreme Court decisions as to how, which and when specific amendments are or were incorporated. The most recent incorporation came in <a href="https://www.oyez.org/cases/2009/08-1521">McDonald v. Chicago</a> in 2010. There are those who argue that the 14th amendment was designed to incorporate the first 8 amendments. Others have attempted to argue, even as late as that 2010 case, that not all amendments are incorporated against state law.</p>

<p>In Everson v. Board of Education, the Supreme Court wrote:</p>

<blockquote>
  <p>"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16.</p>
</blockquote>

<p>All justices, in this decision, agreed that the 1st amendment was incorporated against the states. They disagreed whether or not that incorporation should result in striking down the question that was before the court (whether the state could pay for school buses to take children to religious based private schools.) In the end, it was a 5-4 decision that the states could pay for transportation.</p>

<p>Most U.S. states had state religions at the time of the First Amendment. The First Amendment prevented the Federal Government from creating its own state-religion to trump those of the states.</p>

<p>In more recent vintage, the Supreme Court has adopted the principle of separation of church and state so that now the First Amendment prohibits that which it was designed to protect.</p>
