Grammatical arguments in favor of a broad reading of the establishment
clause.
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Grammatical arguments in favor of a broad reading of the establishment
clause.
In this document we present three grammatical arguments in favor of a broad
reading of the establishment clause. We suggest that these arguments create
a strong presumption against accomodationist readings.
The establishment clause is generally phrased.
All accomodationist interpretations of the First Amendment hold that
the establishment clause is a limited denial of power, i.e., that the
clause restricted only some powers of the Federal government (in
particular, the powers to establish a national religion, or to aid religion
preferentially), while leaving other powers dealing with religion intact.
As we suggest elsewhere, this surely wasn't the opinion of the framers; the
framers wanted to circumvent religious controversy entirely by removing
religion from the power of government. But beyond this, there is nothing in
the wording of the establishment clause that supports this reading; the
clause is general and broadly phrased, and doesn't seem to make exceptions
for either non-national or non-preferential establishments.
We begin by noting that nothing the establishment clause appears to
limit its applicability to national establishments of religion (or,
alternatively, to establishments of a national religion). On the contrary,
the words "establishment" and "religion" are left unmodified, as we would
expect if they were intended broadly. Similarly, the clause doesn't
distinguish between preferential and non-preferential establishments;
accomodationists create this distinction without one word of grounding in
the text. Rather, as pointed out by legal scholar Douglas Laycock, the
version of the establishment clause adopted by the First Congress "is one
of the broadest versions considered by either House:"
It forbids not only establishments, but also any law respecting
or relating to an establishment. Most importantly, it forbids any law
respecting an establishment of "religion." It does not say "a religion," "a
national religion," "one sect or society," or "any particular denomination
of religion." It is religion generically that may not be established
("Nonpreferential Aid to Religion: A False Claim about Original Intent,"
William and Mary Law Review, vol. 27, 1986, p. 881).
Conversely, the free exercise clause does contain limiting language,
although accomodationists don't read this clause narrowly. To illustrate
this narrowness, compare the free exercise and free speech clauses:
o Congress shall make no law...prohibiting the free exercise
thereof;
o Congress shall make no law...abridging the freedom of speech.
As noted by Constitutional scholar Leonard Levy:
The framers of the amendment deliberately used different verbs
in the freedom of religion and freedom of the press clauses....If the
framers meant what they said and said what they meant, then Congress may
abridge the free exercise of religion so long as Congress does not prohibit
it. (pp. 118; emphasis ours)
Hence, the accomodationist interpretation of the religion clauses
seems to clash with the language of the First Amendment. If any of the
religion clauses is to be taken broadly, it is the establishment clause. If
any of the religion clauses is to be read narrowly, it is the free exercise
clause. This is exactly opposite the practice of most accomodationists.
Whatever merit there may be in the accomodationist approach, it is not to
be found in the language of the First Amendment.
The separationist approach is to read both clauses broadly, and to
understand the limiting language of the free exercise clause as an artifact
of the framing process. We doubt, for example, that the framers attached
any significance at all to their use of different verbs in the free
exercise and free speech clauses. As Levy himself notes, the intent of the
clauses was to reinforce the complete absence of federal power over
religion and speech, which makes the choice of verbs unimportant; Congress
is not suddenly granted the power to abridge free exercise because the free
exercise clause only bars only prohibitions.
The word "respecting:"
The establishment clause does more than ban the federal government
from establishing religion; it bars even laws respecting establishment.
This language is far more consistent with the broad reading of the clause
than it is with any version of accomodationism. To quote again from Levy:
The First Amendment does not say that Congress shall not
establish a religion or create an establishment of religion. It says
Congress shall make no law respecting an establishment of religion. Whether
"respecting" connotes honoring or concerning, the clause means that
Congress shall make no law on that subject. The ban is not just on
establishments of religion but on laws respecting them, a fact that allows
a law to fall short of creating an establishment yet still be
unconstitutional. The entire nonpreferentialist argument reduces to the
proposition that, although a law preferring one religion over others would
be unconstitutional, government aid to all without preference to any would
be constitutional. But if government cannot pass a law on the subject of an
establishment of religion, whether the aid is to all without preference or
to only one makes no difference. A law of either kind is a law on a
forbidden subject and therefore unconstitutional. (The Establishment
Clause, p. 118, second emphasis ours).
The word "thereof:"
An overlooked aspect of the free exercise clause is that it looks
back to the establishment clause for its definition of "religion;" the
establishment clause says that Congress may make no law respecting the
establishment of "religion," while the free exercise clause says that
Congress cannot prohibit the free exercise "thereof." Logically, the word
"thereof" must have the same content as the object to which it refers.
Accordingly, what counts as "religion" for one clause must count as
"religion" for the other.
Critically, the free exercise clause makes no sense unless the word
"religion" is read to encompass more than a church, denomination, or sect.
On the contrary, it is common ground that the state abridges free exercise
when it interferes with only small parts of an individual's religious
practice. The state, for example, abridges free exercise when it tells
student they cannot pray during school, even if it allows them complete
freedom to practice all other aspects of their faith. Similarly, the state
cannot tell a church it can't erect a nativity scene on its front lawn even
if the church is otherwise left free to use its property as it wishes.
Private prayer and nativity scenes are protected by the free exercise
clause despite the fact that neither of these practices constitute
religions in and of themselves.
If prayer and nativity scenes count as "religion" for the purposes of
the free exercise clause, they must also count as "religion" for the
purposes of the establishment clause. Just as the state abridges religion
when it tells a student she cannot pray, so to does it establish religion
when it requires prayer to be said in the schools. Just as the state
abridges religion when it tells a church it can't set up a nativity scene,
so to does it establish religion when it sets up a nativity scene on
government land at public expense. The state does not cross the line to
establishment only when it goes to the trouble and expense of setting up a
state church; it crosses that line when it sets up any religious practice
that constitutes "religion" for the purposes of free exercise. To the
extent that accomodationists want to read the "thereof" in the free
exercise clause broadly, they must also accept a broad reading of
"religion" in the establishment clause. [Note: we thank Gene Garman, author
of another excellent web page on separation, for first alerting us to this
argument.]
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You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members]
For people in Hampton Roads area of Virginia you are also invited to join
NORFOLK/VA. B. SEPARATION OF CHURCH AND STATE MEETUP GROUP
http://churchandstate.meetup.com/47/
Virginia Chapter Americans United for Separation of Church and State
http://au-va.org/
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.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
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