The official blog of University of Missouri Skeptics, Atheists, Secular Humanists, & Agnostics
The Establishment Clause is the bane of the religious right’s existence. This blog is going to explore why. It’s also going to explore how it can be used by religious folk. For the most part, I’m going to be re-posting facebook comments in an effort to lessen the burden of actually writing. Also, if I use the word “opinion” I’m probably referring to a judge’s explanation of a verdict.
The relevant portion of the 1st amendment, known as the Establishment Clause, states, “Congress shall make no law respecting an establishment of religion…” This has been interpreted by the Supreme Court and many (if not most) legal scholars to mean that the federal government cannot endorse any religion or irreligion. It must remain neutral. In the words of Supreme Court Justice Souter (quoting another opinion in support of his own), “…the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion…'” So while the words “separation of church and state” may not be in the Constitution, the basic idea of it certainly is. This is the reason why the National Day of Prayer, creationism in schools, and 10 commandments in courthouses are (usually) unconstitutional. I’ll explain why I added (usually) if there’s a demand.
Now, let’s explore how this can be misinterpreted by religious folk. I’m going to be actually quoting a Christian who responded to me.
Unnamed Christian: “@Maggie: “”Congress shall make no law respecting an establishment of religion…” This has been interpreted to mean that the federal government cannot endorse any religion or irreligion”
Who’s interpretation? Your interpretation? The key phrase in the first amendment is “shall make no law”. Hmmm, I wonder what that could mean. IT MEANS, no LAW shall be made that encroaches on a state’s exercise or non-exercise of religion. You intentionally reworded it to say that “the federal government SHALL NOT ENDORSE any religion…”, completely leaving out the key phrase of the amendment. How about you people put your own selfish agendas aside and start looking at the facts objectively. No law is being made here. Nothing is being encroached upon. The amendment simply takes as a given that states will exercise religion and declares that they may do so freely. Obamo, along with just about every president before him, in “endorsing” the national day of prayer is simply reaffirming this fact.”
I suppose that if someone just picked up the Constitution and read the 1st amendment, this viewpoint wouldn’t be absurd. But it is absurd. It’s as if someone argued that the 2nd amendment protected the right to display bear limbs and supported the assertion by using obnoxious caps and being inappropriately condescending (BEAR ARMS. HMMM.. wonder what that could mean!?). What is really funny about this though is that the National Day of Prayer is a law. 28 U.S.C. 119 if anyone’s interested.
The key word in the 1st amendment is not “law” but “establish” (hence the term Establishment Clause rather than Law Clause). As I said the current rule on this, given to us by the Supreme Court, is that “establish” means something along the lines of endorse. Justice Antonin Scalia is the strongest opponent of this interpretation. He’s very dishonest in his approach however. He is an originalist, so he seeks to find the founding fathers’ original intents in crafting the 1st amendment. He takes examples like Washington giving a Thanksgiving proclamation in which he thanks God as support for his position. He also thinks that the founding fathers thought it was okay for the federal government to endorse not just God, but the monotheistic God of the Abrahamic religions. His dissents fail to mention the damning pieces of evidence that contradict his position (IE: Jefferson’s letter characterizing the Establishment Clause as a “wall of separation of church and state”). Rather, Scalia just asserts the separationists were too inconsistent to be of any help.
So, moral of the story, the Establishment Clause was one of the more brilliant and fore-thinking pieces of law crafted by the founding fathers. I suggest anyone interested in protecting our civil rights wield it like a sword in fighting against the attempts at oppression and theocratic invasion.