Myth:
The First Amendment only prohibits an “establishment” a national church.
Response:
This myth relies on one of two misunderstandings. The first is that the First Amendment guarantee of religious liberty is only about preventing the government from setting up some particular church to which all must belong. The second is that the First Amendment does not prohibit “multiple establishments” — showing equal preference for many different religions or denominations.
The first misunderstanding is the easiest to clear up. If the First Amendment only prevents the federal government from setting up its own church, then the First Amendment does not guarantee religious liberty. Why? The words “religious liberty” and “religious freedom” certainly do not appear:
- “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”
If the “no establishment only” interpretation were accurate, then the federal government could enforce compliance with the rules or dogmas of particular religions and, so long as it created no national church and allowed people to follow their own, separate religious rules, this would not be unconstitutional. Does anyone think it would be permissible for the government to force all men to wear yarmulkes, or to prohibit women from wearing jewelry?
This is the misunderstanding which lies behind the myth that “freedom of religion” is distinct from “freedom from religion.” In reality, the former requires the latter, which means that the government is not just prevented from creating a single national church. It is, instead, prevented from enforcing anyone’s religious rules.
Some argue that “establishment” only refers to setting up a national church and thus does not mean that the government cannot actively support some church or religion. How many really believe, though, that it would be permissible for the government to help fund the Catholic Church or the Jehovah’s Witnesses while all other religious groups have to survive on their own?
The second misunderstanding has become popular in some conservative circles in recent years and is often known as “accommodationism” or “non-preferentialism.” According to this view, the federal government may “accommodate” religion by supporting religion, but only so long as it does so without “preference” — that is to say, so long as all religions which ask for assistance are treated equally. The premise behind this is that the First Amendment prohibits an establishment of religion, but not many establishments of religion. Unfortunately, the arguments offered by supporters fail, and on two accounts.
The first is that it fails even based upon their own understanding of the law, known sometimes as “originalism.” According to this view, the Constitution means what the authors meant it to mean — nothing more and nothing less. Thus, if “no law respecting an establishment of religion” was intended only to refer to setting up a national church, then that is all it means. Anything else is permitted, even if that would otherwise infringe upon abstract notions of religious liberty.
The problem with this is that there is ample evidence that the authors of the Constitution did not intend merely to prohibit the creation of a single, national church. James Madison, who is responsible for much of the Constitution, wrote his “Memorial and Remonstrance” specifically denouncing multiple establishments in his native Virginia.
Moreover, the House of Representatives and the Senate considered different versions of the First Amendment which would have allowed for non-preferential support of religion. None were passed and the debate record shows that they did not support nonpreferentialist support of religion. Records of the debate on ratification from Virginia also show that those legislators did not support nonpreferentialism.
It is true that the delegates to the Constitutional Convention wanted to prevent the creation of a national church. Established churches and intolerance towards minority religious beliefs had been common in the colonies, but when the Constitution went into effect only Massachusetts, Connecticut, New Hampshire, and Maryland still had established churches.
Most delegates believed that everyone needed to have freedom of conscience. This meant that everyone needed to be able to choose their own religious path without interference from the government. The state should not tell people what to believe, how to believe, or how to practice. This philosophical background is why it is a mistake to believe that a “national church” was their only concern.
