First Amendment

To further understand the two provisions, let us first look at the backdrop of the federal constitution approach to liberty as presented by Hosford. According to Hosford, the First Amendment to the U. S. Constitution provides in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. " In this particular provision, one will see the two short clauses in religion –particularly that of the Establishment Clause and the Free Exercise clause. These two clauses actually serve as the basis for the relationship between church and state in the United States.

On the other hand, overlaid upon the federal religion clauses and their case law is the Washington State Constitution's corresponding religion provision, Article I, Section 11. It is has been opined that to completely understand the aforementioned Washington provision is to take a look at the historical roots of its enactment. As explained by Hosford, Washington legislature enacted the religion provisions of the Washington State Constitution in 1889 amid a national debate over the proper relationship between church and state in education.

When the Protestants a nationwide movement for common, or public, schools, the Catholic sect Catholics created more parochial schools and demanded support from the government. Hence, there arose a concern from the Protestants that Roman Catholics would control the nation's educational system, thereby instilling in children Catholic rather than Protestant views. In order to prevent this scenario, a Protestant movement began in 1875 to amend the federal constitution to prohibit the states from supporting religion.

The so-called Blaine Amendment, proposed in 1875, would have prohibited the use of state funds for the support of any religious sect, but would have allowed Bible reading in the public schools. And while the amendment failed, the movement to curb state sponsorship of religion continued. In 1889, U. S. Senator William Blair proposed a constitutional amendment that would have prohibited government support of sectarian schools and sectarian teaching in public schools. It too, like its predecessor, failed.

Despite the failure of these two amendments to see the light of day, the substance of the proposals survived in the Federal Enabling Act, which served as the instrument for creating new states. Washington joined the Union under the Federal Enabling Act, which required the state constitution to provide for a strict separation between public education and sectarian influence and control. Thus, the Washington Constitution's religion provisions derive from essentially the same intentions as those behind the Blaine and Blair proposed amendments to the U. S. Constitution.

As a result, the Washington State Constitution addresses religion more explicitly than the federal constitution. Three separate provisions address the state's role with regard to religion. The broadest of these is Article I, Section 11. Prior to the decision on State vs. Gunwall, the Washington Supreme Court committed itself to the adoption of the dual reliance approach. In fact, in State v. Coe, the court evaluated whether a free speech violation occurred when a trial court held a radio station in contempt for violating a court order prohibiting the release of a tape recording played at a criminal trial.

The Coe court first analyzed the constitutional claim under the Washington Constitution and found that the "prior restraints against the publication or broadcast of constitutionally protected speech" violated article 1, section 5. However, the court then analyzed the same issue under the First Amendment to the federal constitution and came to the same result. [FN28] "Having committed the court in Coe to analyzing the provisions of the state constitution first, the court needed to develop a way to require counsel to approach the meaning of the state constitutional provisions in a structured and consistent manner. "