jegs2 wrote:It appears only to forbid the establishment of an official religion over the state.
MYTH: The First Amendment only prohibits an "establishment" a national church.
Response: It is true that the delegates to the Constitutional Convention wanted to prevent anyone from setting up a national church. Although established churches and intolerance towards minority religious beliefs had been common in the colonies, that time had nearly come to an end. Most people at the time were Protestants (out of a population of around 4 million, about 25 thousand were Catholic and fewer than 10 thousand were Jewish), but there was a great deal of variety among the Protestants.
When the Constitution went into effect, only four states - Massachusetts, Connecticut, New Hampshire and Maryland - still had established state churches. By this time, there were Anglicans, Baptists, Quakers, Mennonites, Methodists, and many more. If anyone had tried to take any one of these Protestant sects and established them as the official, national form of Christianity, it likely would have led to a civil war.
That was not, however, the only reason for prohibiting a national church. Another important factor was that most delegates genuinely believed that every person needed to have freedom of conscience. In practice, this meant that every person needed to be able to choose their own religious path without interference from the government. The government should not tell people what to believe, how to believe, or how to practice. This philosophical background is why it is a mistake to believe that a "national church" was their only concern.
The above myth normally relies upon one of two misunderstandings. The first is that the First Amendment guarantee of religious liberty is only about preventing the government from setting up some particular church to which all must belong. The second is that the First Amendment does not prohibit the government form "multiple establishments" - showing equal preference for many different religions or denominations.
The first misunderstanding is the easiest to clear up. If it really is true that the First Amendment only prevents the federal government from setting up its own church, then the First Amendment does not guarantee religious liberty. Why? Well, the words "religious liberty" and "religious freedom" certainly do not appear:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...
If the "no establishment only" interpretation were accurate, then the federal government could enforce compliance with the rules or dogmas of particular religious beliefs, and so long as it created no national church and allowed people to follow their own, separate, religious rules, this would not be unconstitutional. But does anyone really think that it would be permissible for the government to force all men to wear yarmulkes, or prohibit women from wearing jewelry?
This is the misunderstanding which lies behind the common myth that "freedom of religion" is wholly distinct from "freedom from religion." In reality, however, the former requires the existence of the latter, which means that the government is not simply prevented from creating a single national church. It is, instead, prevented from enforcing anyone's religious rules on everyone else.
Sometimes you will find someone arguing that "establishment" only refers to setting up a national church, and therefore does not mean that the government cannot actively support some church or religion. You won't find this too often, because it would obviously result in religious discrimination. How many really believe that it would be permissible for the government to help fund the Roman Catholic Church or the Jehovah's Witnesses while all other religious groups have to try and survive on their own?
The second misunderstanding has become popular in some conservative circles in recent years and is often known as "accommodationism" or "non-preferentialism." According to this view, it is permissible for the federal government to "accommodate" religion by supporting religion, but only so long as it does so without "preference" - that is to say, so long as all religions which ask for assistance are treated equally.
The premise behind this is that the First Amendment prohibits (so they say) an establishment of religion, but not many establishments of religion (it also helps if one tries to simultaneously argue for the above - that "establishment" only means setting up a church and does not refer to simply supporting a church or multiple churches). Unfortunately, the arguments offered by supporters fail, and on two accounts.
The first is that it fails even based upon their own understanding of the law, known sometimes as "originalism." According to this view, the Constitution means what the authors meant it to mean - nothing more and nothing less. Thus, if "no law respecting an establishment of religion" was intended only to refer to setting up a national church, then that is all it means. Anything else is permitted, even if that would otherwise infringe upon abstract notions of religious liberty.
The problem with this is that there is ample evidence that the authors of the Constitution did not intend merely to prohibit the creation of a single, national church. James Madison, who is responsible for much of the Constitution, wrote his "Memorial and Remonstrance" specifically denouncing multiple establishments in his native Virginia.
Moreover, the House of Representatives and the Senate considered different versions of the First Amendment which would have allowed for non-preferential support of religion. None of them were passed and the record of their discussions shows that they did not support nonpreferentialist support of religion. In addition, the records of the debate on ratification from Virginia also show that those legislators did not support such nonpreferentialism.
I do not, however, agree with the premises behind "originalism" - there seems no good reason to assume that a literal reading of the text and ignoring the principles behind the text is the only or even the most valid means of interpreting it. So, if we look instead to the principle of "religious liberty" and accept that people should be forced neither to adopt the rules nor support the maintenance of any church or religion other than their own, non-preferentialism loses any value it might have claimed for itself.
Source
You're resorting now to repeating decades old statements?