Grammatical arguments in favor of a broad reading of the establishment clause.

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:

• Congress shall make no law...prohibiting the free exercise thereof;
• 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.]

---

Return to home