The full back-story of my fascination with the US Constitution, its historical origin and ideological provenance via the 18th-century European Enlightenment is too long and convoluted a story to even synopsize here. Suffice to say that it all began when I saw the movie "Gettysburg" in 2011 and was appalled at how little I knew about that battle in particular and about the Civil War in general. One thing led to another, and I ended up reading about the US Constitution almost obsessively: upwards of a thousand books about the history of the Constitution and various theories about how to interpret it, ultimately culminating in auditing three courses in advanced constitutional law at the University of Washington law school. (Credit where due: I remain indebted to Prof. Stuart Jay, now retired, senior faculty at UW Law, and his generosity in responding to my out-of-the-blue inquiries about what to read and when. He is a living refutation of all lawyer jokes.) At considerable risk of sounding bombastically jingoistic, my bottom-line conclusion is that the US Constitution is the fairest flower ever to bloom from the mud, blood, and internecine violence of the 200 years of European religious war that preceded the Framing of the Document. Over 230 years old yet as young and alive as yesterday, the US Constitution is critically important. It is the DNA of the United States. It deserves to be defended and preserved at all cost of blood and treasure.
As strange as it will probably sound coming from me, in the 6 years (as of this month) writing my “Skeptic’s Collection” column for Beguine, I have never published a “Skeptic’s Collection ” column dedicated exclusively and entirely to the First Amendment. I have alluded to it, hyperlinked to it, but never written about the entire First Amendment. That is as strange as a devout Christian never quoting John 3:16 or an observant Jew never mentioning the sh’ma or a devout Muslim never referring to the shahada. So I am going to remedy this egregious omission.
I like to use an architectural analogy vis a vis the First Amendment. The First Amendment partakes of the spare elegance of a Doric temple. The First Amendment is founded on the Enlightenment principle, newly rediscovered in the 15th / 16th centuries, of the competence of autonomous human reason to contemplate scientific, social, political, and philosophical issues free of religious restrictions. The “roof” of the First Amendment comprises the enterprise of intellectual liberty.
In between the foundation (I believe stylobate is the correct technical architectural term) and the roof (pediment) — both implicit in the Constitution as a whole — are the three great Pillars / Columns of the First Amendment’s austere Doric architecture: the “establishment” clause, the “free exercise” clause, and the “abridgement” clause (which itself comprises three “sub-Pillars” or sub-clauses ... more on that later).
In what follows, I will attempt to avoid a mistake I have made in the past regarding writing about the First Amendment: getting lost in the nuances of history and case law.
THE “ESTABLISHMENT” CLAUSE
Congress shall make no law respecting an establishment of religion …
But sometimes, nuance is critically important. Note that the “establishment” clause does not say “Congress shall make no law establishing an official church or an official religion”. In fact, it does not even say “Congress shall make no law respecting the establishment of religion … “. The words "respecting" and "an" are critical. Let's consider them in that order. “Respecting” is critical. The implication is that, not only shall Congress not explicitly establish an official church or an official religion. “Respecting” rules out any favoritism whatsoever, any flirtation, however brief and subtle, with any type of religious or doctrinal favoritism, irrespective of however subtly grounded and indirect. The laws of the Nation are not to be religion-hostile – see below about the “free exercise” clause – but they are to be uncompromisingly religion-neutral. Next, consider the "the". The “the” is important because the definite article "the" could imply that the prohibition of "establishment" would only pertain to one, specific, particular form of religious favoritism. The use of an indefinite article – “an” -- implies that what is prohibited by the “establishment” clause is – again – not merely one type or variety of religious bias, but all forms whatsoever. Think of it this way: if I say "Please bring me the book," you may presume that I am referring to one particular, specific book: such is the implication of the definite article "the"; but if I say "Please bring me a book," my use of the indefinite article "a" implies that any one of several books would fulfill my request. Similarly, "an" is an indefinite article: it prohibits any and all state favoritism toward any religion, religious practice, or religious doctrine.
Conservatives often respond in two ways:
"America is a Christian nation"
This is true, but strictly in a statistical sense. The last statistics I saw said that somewhere around 75 percent of Americans are of one variety of Christian or another. But the question is not "What is statistically the case?" but "What is constitutionally permissible?" Only the latter is relevant vis a vis the First Amendment. Even if 99.9% of the Nation were Christian, that would not suffice to overrule the "establishment" clause and make America a Christian nation, constitutionally.
"The Founders were religious men who recommended religious belief"
True ... though to what degree, e.g., Messrs. Jefferson, Franklin, and Paine were "religious" is open to debate. (Mr. Paine continually complained that as a far-left Anglican, he was always being accused of atheism.) But the fact that the Founders personally recommended religious belief and observance does not mean that that personal preference has the force of the US Constitution. Personally, I think Uno's pizza is the best, but that does not mean eating Pizza Hut pizza ought to be legally, least of all constitutionally, mandatory, The Founders were meticulously careful to avoid writing their personal preferences and recommendations into fundamental law.
There is a long history whereby the Supreme Court has grappled to define the precise meaning of what constitutes "establishment". For example, does allowing school buildings and property to be used for religious instruction violate the "establishment" clause? (Answer: yes.) Does it violate the "establishment" clause for school funds to be used to purchase textbooks for religious schools? (Answer: if the books are for secular subjects like math and physics, no; if the books are, e.g., catechetical texts, yes.) Does the recitation of prayers, written by school authorities, by school children violate the "establishment" clause? (Answer: yes ... however, there is no prohibition of private, personal prayer by students. In this latter sense, fundamentalists are simply being hysterical in their insistence that "God was thrown out of schools". Same with personal, individual Bible study by students. Individuals can still pray in schools as individuals. What they may not do is impose that prayer on others not of their faith. What is forbidden is an official prayer, written by school officials and / or school boards, the recitation of which is required by students. Besides, fundamentalists and religious conservatives should reflect on whether a God Who is small enough to be thrown out of schools is really a God Who is worth bothering with, anyway.)