Incorporation::Establishment Clause


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Incorporation Prior to the enactment of the Fourteenth Amendment to the United States Constitution in 1868, the Supreme Court generally held that the substantive protections of the Bill of Rights did not apply to state governments. Subsequently, under the Incorporation doctrine, the Bill of Rights has been broadly applied to limit state and local government as well. The process of incorporating the two Religion Clauses in the First Amendment was twofold. The first step was the Supreme Court's conclusion in 1940 that the Free Exercise Clause was made applicable to the states through the Fourteenth Amendment.<ref>Cantwell v. Connecticut, 310 U.S. 296 (1940)</ref> Conceptually, this raised few difficulties: the Due Process Clause protects those rights in the Bill of Rights "implicit in the concept of ordered liberty,"<ref>Palko v. Connecticut, 302 U.S. 319, 326 (1937)</ref> and free exercise of religion is a quintessential individual right (and had been recognized as such at the state level from the beginning).<ref name=MGB74>{{#invoke:citation/CS1|citation |CitationClass=book }}</ref>

Incorporation of the Establishment Clause in 1947<ref>Everson v. Board of Education, 330 U.S. 1 (1947)</ref> proved to be problematic in several ways and subject to critique.<ref name=MGB74 /><ref>School District of Abington Township v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring) ("The absorption of the Establishment Clause has, however, come later and by a route less easily charted.")</ref><ref>{{#invoke:Citation/CS1|citation |CitationClass=journal }}</ref><ref>{{#invoke:citation/CS1|citation |CitationClass=book }}</ref><ref>Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Thomas, J., concurring) ("I accept that the Free Exercise Clause . . . applies against the States through the Fourteenth Amendment. But the Establishment Clause is another matter.")</ref> The controversy surrounding Establishment Clause incorporation primarily stems from the fact that one of the intentions of the Establishment Clause was to prevent Congress from interfering with state establishments of religion that existed at the time of the founding (at least six states had established religions at the founding<ref name="McConnell 1409">{{#invoke:Citation/CS1|citation |CitationClass=journal }}</ref>) – a fact conceded by even those members of the Court who believe the Establishment Clause was made applicable to the states through incorporation.<ref>Abington v. Schempp, 374 U.S. 203 (1963) (Brennan, J., concurring)</ref> Critics have also argued that the Due Process Clause of the Fourteenth Amendment is understood to incorporate only individual rights found in the Bill of Rights; the Establishment Clause, unlike the Free Exercise Clause (which critics readily concede protects individual rights),<ref name="McConnell 1409"/><ref>Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004) (Thomas, J., concurring).</ref> does not purport to protect individual rights.<ref name="McConnell 1409"/>

Establishment Clause sections
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