nor the federal government may promote, aid, or encourage (or inhibit) religion,
even on a basis that does not discriminate among churches, sects, or beliefs.
Finally, that the prohibition of religious establishments contained in the First
Amendment reflected and promoted these unlikely ambitions is no less obscure.
As perplexing as how such a paradigm of mutual abstention by religion and
law might actually govern what appears to be actually inseparable is that proffered
justification for it: history. Specifically, the justices (and many commentators)
proclaim these curious propositions as the unalloyed command of those who
wrote and ratified the Religion Clauses of the First Amendment to the federal
Constitution in between 1789 and 1791. The intent of these framers sufficiently
warrants the relegation and isolation of religion. That these counterintuitive
judicial commandments are also historically counterfactual is demonstrable.
Rather, the intuitively plausible conclusion--that government interaction with
religion be conditioned on a neutrality among sects--is the historically demonstrable meaning of nonestablishment, and represents the fundamental alternative
to what the Court has wrought.
P. Tillich, Dynamics of Faith 1-2 ( 1957); P. Tillich, The Courage to Be ( 1952).
This is effectively the definition of religion adopted by the Supreme Court. See Torasco
v. Watkins, 367 U.S. 488, 495 ( 1961) (neither state nor federal government "can aid
those religions based on a belief in the existence of God as against those religions founded
on different beliefs" (e.g., buddhism, taoism, ethical culture, secular humanism, 367
U.S. at 495 n. 11.)) See also Welsh v. United States, 398 U.S. 333 ( 1970); United States
v. Seeger, 380 U.S. 163 ( 1965).
United States v. Seeger, at 163, 176 ( 1965).
L. Gilkey, Society and the Sacred 18 ( 1981).
R. Neuhaus, The Naked Public Square 15 ( 1984).
On the public significance of Islam, see
D. Pipes, In the Path of God: Islam and
Political Power ( 1984).
R. Kelley, The Cultural Pattern in American Politics ( 1970); P. Kleppner, The
Third Electoral System 1853-1892 ( 1979); W. McLoughlin, "The Role of Religion in
the Revolution: Liberty of Conscience and Cultural Cohesion in the New Nation," in Essays on the American Revolution 197 (
S. Kurtz &
J. Hutson eds. 1973).
C. Griffin, Their Brothers' Keepers152-97 ( 1960).
D. Tyack &
E. Hansot, Managers of Virtue: Public School Leadership in America
1820-1980 ( 1982); V. Lannie, Public Money and Parochial Schools ( 1968).
Kleppner, Third System, at 336-49.
A. James Reichley, Religion in American Public Life ( 1985).
Everson v. Board of Education, 330 U.S. 1, 16 ( 1947). First articulated in letter
from Thomas Jefferson to the Danbury Baptist Association ( January 1, 1802), the Supreme
Court's initial use of the term came in a free exercise case. Reynolds v. United States, 98 U.S. 145, 164 ( 1878), involved a polygamy prosecution of a Mormon living in Utah