ABSTRACT
This chapter analyzes the development of judicial tests under the Establishment and Free Exercise clauses of the First Amendment to the US Constitution. During the Constitutional Convention of 1787, Charles Pinckney of South Carolina proposed that the federal government guarantee that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Pinckney’s thinking, and other leader’s interpretations at the time, give us insight into the first legal principle governing religion in the United States. In 1939, the Connecticut Supreme Court found three Jehovah’s Witnesses, Newton Cantwell and his two teenage sons, Jesse and Russell, guilty of soliciting without a permit and breaching the peace. Justice Rutledge dissented by arguing that taxes were indirectly being used to aid and encourage religious instruction. Kent Greenawalt has argued that “no single test for the entire Establishment Clause could yield sound results for all subject matters.”.
