On the Establishment Clause


As you’ve no doubt heard, a federal judge ruled that the “National Day of Prayer” was unconstitutional because it violates the Establishment Clause of the first amendment.

Let’s review. You don’t need to be a lawyer to understand what I’m going to say, but you do need to be a lawyer to see how this is perverted to mean what it is not.

The first amendment reads, in full, with the most relevant part in bold:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now, let’s work at the wording. It says “Congress shall make no law…” This means that Congress cannot make a law that does what follows. Since Congress, and Congress only, can make laws, that means that the federal government cannot have a law that does any of the following things.

The first thing on the list is “respecting an establishment of religion.” This is the “Establishment Clause”. It’s really simple.

What is an “establishment of religion”? Why, that is a church. It is something like the Baptist Church, or the Catholic Church, or The Church of Jesus Christ of Latter-day Saints.

What about “respect”? Well, you can take that literally, meaning Congress cannot write a law that says, “we respect The Church of Jesus Christ of Latter-day Saints”. Or you can take it to mean “regarding”, such that Congress can’t write a law targeting a specific establishment of religion. For instance, it cannot write a law taxing the Baptist Church at one rate and the Presbyterian Church at another. I like to interpret it as “regarding”.

Note what it does not say. It doesn’t say “respecting a religion”. That means, Congress can make a law respecting Christianity or Buddhism or any other one of the world religions, outside of their specific establishments. If Congress wrote a law tomorrow demanding everyone who is not of the Christian faith shall not be naturalized, then that would be constitutional. Whether such a law is wise is another matter entirely.

When Congress writes a law declaring a certain day to be a National Day of Prayer, and recommending that the people of this country pray on behalf of things that our nation needs, would this violate the Establishment Clause? Of course not. It doesn’t respect any particular establishment of religion, nor does it even respect any particular religion. After all, almost all religions have some element of prayer within them.

What if Congress went further and wrote that a certain day is a National Day of Prayer to our Heavenly Father in the Name of Jesus Christ? Would this violate the establishment clause? Again, no it won’t since this is a prayer pattern adopted by countless thousands of establishments of religions, even though only a few particular religions believe in a Heavenly Father and prayer in the name of Christ.

Today, people scream “Separation of Church and State!” as if that were part of the first amendment or the Declaration of Independence of something. That phrase does not exist in our founding documents. However, even this phrase doesn’t address the topic of religion. A church is not a religion—it is an establishment of religion. Congress could mix a particular religion and the state without violating this phrase.

A bit of historical context should help you understand why the Establishment Clause is written the way it is. First, understand that the Founding Fathers were deeply religious. No, they did not agree on all particulars of their faith, but they all believed in a Creator, in natural, God-given laws, and prayer. The vast majority believed in Jesus Christ. Second, understand that at that time in the world, almost every country, without exception, had a state church. That is, you would pay your tithes to the tax collector, and the leader of your local church was a government official teaching government-sanctioned doctrines. In fact, at the time of the constitution, several of our American states still had state churches, and some compelled membership in those churches.

However, our Founding Fathers understood the importance of public virtue, and wrote laws that compelled such. That is, you couldn’t do things in public not because they were immediately harmful to those around you, but because they degraded the virtue of society, which would harm society in the long run.

Of course, we know that having government run religion is an absurd idea. Instead, government should compel freedom of religion, that is, allowing people to worship how, where, or what they may, and preventing any influence from prohibiting the same. We still believe today that government should compel public virtue. This is why we have laws that force people to treat others equally (a religious idea) and to prevent theft, murder, and other crimes (which are religiously based).


2 Responses to “On the Establishment Clause”

  1. notthewayitssupposedtobe Says:

    Just came upon your post… thinking about the establishment clause. i’m asking why would the founding fathers write a law that they would blatanly disobey from the very beginning. I say that with respect to rulings such as the National Day of Prayer which the early presidents sanctioned (Jefferson not so much). The interpretation used today in the courts does not appear to be the same one used in the beginning.

    • Jonathan Gardner Says:

      You’re absolutely right.

      When it comes to appointing judges to the supreme court, the goal is to get judges who will rule based only on original intent, even if that means overturning precedent. These will shy away from the literal interpretation, and they definitely disagree with the concept of a “living constitution.” There are not many judges in the entire United States who advocate such a position, but they exist, and 2 or 3 are sitting on the Supreme Court today.

      If we had a majority of judges that were ruling based only on original intent, we could remove the vast majority of the federal government by suing them. Liberals would be forced to put their ideas in a constitutional amendment before they could be considered.

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