As I mentioned in my previous entry, most of my posts from now until the end of the semester will be me (who else?) contemplating and trying out ideas for essays. Basically, I’m apologizing in advance for what might end up as “rambling”. For my philosophy of law paper I’m thinking of doing something about interpretation of the 1st Amendment clause concerning establishment of religion. Originally, I thought I’d focus on this issue in relation to attempts to get creationism into the science curriculum but I fear that the content will be too heavily weighted towards legal interpretation rather than philosophical analysis. Anyhow, I’m thinking about looking at the philosophical issues surrounding why the establishment clause was originally written into the Bill of Rights, the different ways it is interpreted, and the philosophical implications of each interpretation, and which interpretation best accomplishes the philosophical aims of the clause.
Also something went crazy with the layout so I apologize for that.
Intro the First Amendment Regarding Establishment of Religion
The First Amendment (in the context of religion) is often referred to as the establishment clause because it prohibits Congress congress from making any law respecting the establishment of any religion and impeding free exercise of religion. (Note, it has been extended to laws at the state level since 1925).
Before we put on our philosopher beards, lets look at the actual law:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof (then some
shit about free speech, freedom of the press, assembly,
blah, blah, blah).
So, what’s the point of the law? It seems it’s to make it so
government neither promotes one religion over another or
interferes in anyone’s ability to practix their religion of choice, and
maybe to secure freedom from being coerced into a particular
The clauses work together in that if government were to enact
policy that gave preference to one religion (or branch of a
religion), it would be a hop, skip, and a jump away from
interfering others’ ability to practix their own religion.
Conversely, by interfering in someone’s/some group’s ability to
practix religion, they’d be tacitly endorsing others.
There are lots of instances where the manner in which this law
should be applied is pretty clear, and we never hear about those
because they never make it to court. There are however other
instances where it’s not so clear how or if the establishment clause
There are 2 basic interpretations of the law: the separationist and
the accommodationist. Obviously, the separationist view is that
there should be a strict separation of Church and State. The
modern separationist interpretation (the standard one) was first
invoked in 1971 in Lemon v. Kurtzman. In this case private
religious-based schools were axing for money to supplement
teachers’ salaries who taught secular content. Out of this case
arose what is called the Lemon test. The purpose of the test is to
determine whether a proposed piece of legislation constitutes the
establishment of religion, thereby violating the establishment
The Lemon Test
Here it is–check it!
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; third, the statute must not foster “an excessive government entanglement with religion.”
Regarding the first section, it is noted that a law can also have
religious motivations and still be constitutional, but it’s primary
purpose must be secular. The second section is self-explanatory.
The third has faced the most criticism and has been interpreted
One interpretation of the third part is that it is only the effects of
the proposed law that cannot bring about Church-State
entanglement. For example, most “Church” charities are actually
largely funded by the government. Because government doesn’t
administrate or regulate the charities (possible problem?) these
types of policies have not been interpreted as “excessively”
entangling gov’t with religion.
Another consideration in interpreting the third section of the
Lemon test is the purpose of the law. Hospitals and universities
are institutions considered to have secular purposes, for this
reason, a law which approves funding to such institutions even if
they have religious affiliations can be (and has been) considered
One can make the argument that accommodationists are “less
concerned about the dangers of establishment and less concerned
to protect free exercise rights, particularly of religious minorities.”
Basically, as I mentioned before, if you give an advantage to one
religious group it is very easy for smaller groups to be prejudiced
against and not be able to compete for souls on a level playing
field. Er’body knows that whatever religion ends up with the most
souls wins. It’s unfair for gov’t to help one team while not helping
The accommodationist position is best summarized by the opinion
of Justice Douglas in Zorach v. Clauson: “Accommodationists read
the establishment clause as prohibiting Congress from declaring a
national religion or preferring one to another, but laws do not have
to be shorn of morality and history to be declared constitutional”.
They apply Lemon only selectively because “[w]e are a religious
people whose institutions presuppose a Supreme Being”.
Oy! Where to begin! For my paper I’m going to attack the clause
“do not have to be shorn of morality and history” because a) the
(absurd) implication is that the is no morality without religion (or
that our moral values are derived from religion) and b) that this is
what the writers of the constitution intended and/or that this
interpretation is implied by the historical circumstances at the time
of the writing. It seems Justice Douglas is taking liberties with his
psycho-analysis of James Madison.
Obviously, the claim that the US gov’t institutions presuppose a
Supreme Being is also pretty loony. Suppose it is true. What does
that tell us about our sexual preference? Exactly, it’s irrelevant.
Someone please tell me how the existence or non-existence of a
Supreme being is relevant to EPA legislation.
Arguments for Interpretation
I should add that the separationists, to support their position,
appeal to one of Jefferson’s letters in which he uses the phrase and
advocates the view of “separation of church and state”. Also in
1879 Chief Justice Waite consulted with historian G. Bancroft to
discuss Madison’s (author of the 1st Amendment) “Memorial and
Remonstrance against Religious Assessments”. In that petition
Madison proposes there should be “a great barrier” between
Church and State.
This brings up the issue of how interpretation is done in
constitutional law: do you strictly interpret the letter of the law in
the way it would have been understood in its era? Or do you make
allowances with the understanding that what made sense in one era
might not now, and that law-makers can’t foresee all future
Maybe you argue for interpretation based on intent, but how do
you know the authors intent? Do you have a time-travel machine
and a mind reading machine? It is almost certain that our own
biases will be read into how we “interpret” the intent of a
Anyway, I think this is a productive start. I think I’ll go though
some of the major trials and read judges opinions and go from
there. I welcome any comments or suggestions. Thanks for
putting up for the scattered writing…
By the by, if you’re interested in reading G. Madison’s “Memorial
and Remonstrance against Religious Assessments” here’s the link
(it’s not very long):