Thomas Jefferson, in a letter, famously called for a “wall of separation between church and state.” But
The clause reads: “Congress shall make no law respecting an establishment of religion . . . .” The key words here are “Congress” and “respecting.” The establishment clause placed restriction only on what Congress (a federal body) could do, not on what state governments could do. And Congress could make no law “respecting,” which means “having to do with,” an establishment of religion. This awkward expression was used because the amendment’s drafters understood that it would do two things, not just one: 1) prevent Congress from establishing a religion, and 2) prevent Congress from interfering if state governments establish a religion. (Several states had established churches when the First Amendment was written; others had religious tests for public officials.)
Most establishment clause cases challenge actions by state governments (including school districts) rather than by the federal government. If the clause were interpreted as written all these cases, including the current one from
But the Supreme Court has been striking down state government actions under the establishment clause for more than half a century. It has held that although the original Bill of Rights (amendments 1-10) placed limits only on the federal government, the Fourteenth Amendment, added after the Civil War, was intended to place many of these same limits on the state governments.
There is convincing evidence that this was indeed intended when Congress wrote the Fourteenth Amendment. And for the most part this “incorporation” of the Bill of Rights made sense. It did not undermine our protection against federal censorship, for example, to hold that the First Amendment also protects us from state government censorship.
But “incorporating” the first dimension of the establishment clause to prevent state establishments as well as federal establishments totally contradicts the clause’s second dimension, protecting the right of states to establish a religion. The Fourteenth Amendment’s drafters intended no such result. Their report when the Amendment was submitted to Congress conspicuously omitted the establishment clause as one of the long list of provisions that would be “incorporated” against the states.
No doubt it would be a bad idea for a state to establish a religion today. But letting nine unelected justices twist a key clause of the Constitution so that it means the opposite of what it originally meant is an even worse idea.