"...no law respecting an establishment (n?) of religion,"

JamesCarroll · March 20, 2003, 3:19am

As the first amendment reads:

a number of suits lots of suits have been filed whenever any gov’t agency does something that would seem to proscribe or push or otherwise actively proffering religion.

But could the Constitution be read that what is being rejected is not the verb “establishment”, but the noun. That is Congress could pass a law that establises (v) a religion, but could not pass a law regarding a religous establishment (n).

Has this ever been tried in court?

Thanks…

brianmelendez · March 20, 2003, 3:28am

Sorry, but I don’t understand this question. Establishment is a noun, not a verb: it is the noun that is the natural direct object of the verb establish. To establish a religion necessarily and inevitably results in an establishment of religion. Are you suggesting that establishment may have some different meaning for the first amendment’s purposes? If so, what are you suggesting that it may mean?

daniel801 · March 20, 2003, 3:49am

he’s saying what if it read like: …no law respecting a religious establishment…

milquetoast · March 20, 2003, 3:57am

But establishment as a noun still has (at least) two distinct meanings.

In one case it may mean “the act of establishing” (that is how I interpret the passage from the first amendment above).

In the second case it may refer to an actual entity. A church or religius group is an establishment. (**JC ** is asking if this interpretation has ever been applied in court.)

brianmelendez · March 20, 2003, 4:18am

Okay. Still seems to me like a difference that makes no difference, but I won’t quibble. The answer is that, AFAIK, no published case has ever held that “establishment” has a meaning narrowly limited to some particular definition. The Supreme Court has held that

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”

Everson v. Bd. of Educ., 330 U.S. 1, 15-16 (1947), *quoted in Torcaso v. Watkins*, 367 U.S. 488, 492-93 (1961).

There is an excellent overview of Establishment Clause law online at FindLaw.