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Understanding the Religion Clauses in the First Amendment of the U.S. Constitution - Conclusion, Endnotes, Quotations
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Article Index
Understanding the Religion Clauses in the First Amendment of the U.S. Constitution
HIstorical Purpose of the Religion Clauses
Engel v. Vitale and the
Harmful Consequences of Judicial Error
Conclusion, Endnotes, Quotations
All Pages
Conclusion

Engel v. Vitale produced a torrent of Supreme Court regulation—restriction—of religious expression in the states. Prior to Engel, going back as far as the 1879 Mormon polygamy case, only eight lawsuits involving religion came before the Supreme Court; before 1879 there were none. Since 1962, there has been on average more than one such case each year. By means of the authority of judges—most importantly the justices on the Supreme Court—the First Amendment’s Establishment Clause has been disjoined from the Free-Exercise Clause and has in the past five decades gained an ascendancy over the Free-Exercise Clause that is now almost absolute. This has been done despite the fact that these twin clauses in the First Amendment were conceived and born together, to ensure that the federal government did not interfere with the states’ reserved rights with respect to religion.

The inconsistencies and vacillations, the historical inaccuracies and injudicious rationalizations, the occasional ideological dogmatism and sometimes the sheer absence of logic that one encounters in reviewing the opinions of the Supreme Court on religious matters since 1947 have led one commentator to observe that the Court’s jurisprudence regarding religion is “an intellectual mess.”2 But how to correct this mess? Over the past two decades, a sophisticated literature has emerged that plainly reveals the historical fallacies and tendentious theorizing that lie at the basis of the Court’s religion decisions. Yet still, decisions such as Engel have not been overturned. The Court remains adamant in its defense of the secularism of public institutions. It seems only a new constitutional amendment could return us to the religious liberty envisioned in the First Amendment. One thing is certain: to relegate freedom of religion solely to nonpublic venues is an unconstitutional suppression of belief in God, a belief that has been of central importance to Americans throughout their history.

Professor McElroy's most recent book is Divided We Stand: The Rejection of American Culture Since the 1960s (2006). This essay is republished by permission from Intercollegiate Review, published twice a year by the Intercollegiate Studies Institute (ISI). Copyright 2011 by ISI. The Review is provided free to members of the Institute. Archives of this and another ISI journal, Modern Age, which is published quarterly, are available online at: http://www.isi.org/journals.html


Endnotes

1. Everson v. Board of Education, 330 U.S. 1.
2. Terry Eastland, A Court Tilting Against Religious Liberty,” in A Country I Do Not Recognize: The Legal Assault on American Values, ed. Robert H. Bork (Stanford: Hoover Institution Press, 2005), 86.

Quotations

"[N]o court ruling can change the historical reality of what a religious establishment is. The Supreme Court possesses vast power, but that does not include the ability to rewrite history. The nature of religious establishments in the history of Western civilization is clear and cannot be altered by any court."

"No establishment of religion exists when a government treats the members of every faith equally, tolerates free, public expression of any religious faith, and enacts no establishment law bestowing a substantial governmental benefit on one religion to the exclusion of all others."

"One thing is certain: to relegate freedom of religion solely to nonpublic venues is an unconstitutional suppression of belief in God, a belief that has been of central importance to Americans throughout their history."

 

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Last Updated on Monday, 19 September 2011 12:33