Can you suggest – for starters -- just one thing to read about contemporary religion clause jurisprudence?  Have you written anything about it?  And what did the Framers themselves mean by the Establishment and Free Exercise clauses?


Just one thing?  Sure:  Read Russell Hittinger, "The Supreme Court v. Religion," which is a chapter in his excellent book The First Grace: Rediscovering the Natural Law in a Post-Christian World.  As Hittinger points out, you might think that the members of the Court would have the same view of the law, but different views of religion.  Actually, they have very different views of the law, but surprisingly similar (and disturbing) views of religion.  Since you are also interested in my take on these matters, take a look at my chapter, “The Strange Second Life of Confessional States,” in the very interesting anthology of Paul R. DeHart and Carson Holloway, Reason, Revelation, and the Civic Order: Political Philosophy and the Claims of FaithBut read the rest of those books too!

Now as to those clauses.  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The first part is the Establishment Clause, the second the Free Exercise clause.

An “establishment of religion” is an official church, and the word “respecting,” in the Establishment Clause, means “about.”  So the clause simply forbids the federal government from making laws on the subject of official churches.  This means, among other things, that it tell the states whether to have official churches or not (six of the thirteen states did have them at that time), and it can’t set up a competing Church of the United States.  So this was a federalism issue, not a religious liberty issue.  Despite later claims to the contrary, it had nothing to do with “separating” Church and State; it was actually about separating the states from the federal government.  This has now become moot, because for reasons having to do with the Fourteenth Amendment, the Supreme Court now thinks that the Establishment Clause applies to the states too.

The Free Exercise clause is a little more confusing.  By the rules of statutory construction, in order to know the meaning of the statement that Congress shall make no law prohibiting the free exercise of religion, we must figure out what the Framers and Ratifiers meant by “religion,” what they meant by the “exercise” of religion, and what they meant by the exercise of religion being “free” – and they didn’t make it easy.  Still, there are plenty of clues, for example in the Declaration of Independence.  As I read such tea leaves, by “religion” they meant providential moralistic monotheism, with a high view of the human person; that by “exercise” they meant action, as well as belief; and that by “free” they meant unhindered within the bounds of the common good, as illuminated by natural law.  But our contemporary jurisprudes pronounce upon what the Free Exercise clause means without defining any of those words.  Consequently, there is no telling what they will say the clause means from one case to the next.

If we take the two clauses to mean something like what I think the Framers and Ratifiers meant -- first, that the federal government must stay out of the official religion business, but second, that within the bounds of the natural law people may worship God and act as their religiously informed consciences direct -- then the two clauses are perfectly compatible, and one can obey them both at the same time.

But if we take the two clauses as our contemporary jurisprudes take them – they tend to think that the Establishment clause has something to do with restricting religion, but that the Free Exercise clause has something to do with loosening restrictions on it – then the two clauses are plainly inconsistent, so that to follow one is to violate the other.  This is why they so often say that the two clauses express not Constitutional rules, but Constitutional “values” which must be “balanced” against each other.  Translated, that means, “Never mind what the clauses mean; we, the judges, will tell you what must be done.”

Religion clause jurisprudence makes a logical man want to pull his hair out.  For example, a lot of the Establishment Clause cases go on and on about how the government must be “neutral” between religion and irreligion.  Members of the Court have said, for example, that the reason why words like the references to God in the Pledge of Allegiance aren’t Constitutionally problematic is that because of rote repetition, they don’t mean anything to people any more.  But the same members of the Court go on to say that such practices are very useful.  For example, they inspire people to perform acts they wouldn’t otherwise perform.

Now ask yourself:  If these words really have lost their meaning, then how can they inspire people to do these things?  What these judges mean is that the people who run things don’t believe them, but that certain fools do.

Let us be found among those subtle fools whose strings aren’t so easy to pull.  Trust God, but put not your trust in princes.  Or candidates.  Or judges.