Hitting the Reset Button on the Religion Clauses: All in All It's Just Another Brick in the Wall

Woody R. Clermont, Office of the General Counsel

Abstract

The Supreme Court’s jurisprudence respecting the Establishment Clause oftentimes purports to prevent the establishment of religion by examining whether there has been a history of excessive entanglement with a particular faith, as well as whether a proposed action attempts to advance the cause of a particular religion. Yet also, at many times, the Court has gone further to attempt to secularize as much of the public sphere as possible, even when that is neither desirable nor possible. When it does so in a manner that does not abide by the text, its decisions commit generality-shifting errors that impose a non-textual provision onto a work that was the legislative product of a “bundle of compromises”. This Article advances the idea that adopting a position of religious neutrality, and a freestanding abstract separation of church and state is a betrayal to the process that created the First Amendment. History is not necessarily supportive of such an interpretation, and James Madison and Thomas Jefferson do not speak for every constitutionmaker as to the final product. Interpreters must respect the specific compromise inherent in the document, and resist the urge to indulge in any presupposition about the role of faith in government, when engaging in a proper textual analysis.