Anti-Religious Establishments

[Douglas Laycock]

        The Court's claim that inhibitions of religion violate the Establishment
Clause has continued by mindless repetition since Schempp.  Schempp
paraphrased McGowan and Everson.  Everson misquoted Jefferson.

        Everson quoted the wall of separation metaphor from the Danbury Baptist
letter and misattributed the wall to the Establishment Clause.  And that
misquotation has  become conventional wisdom.  But Jefferson actually (and
accurately) attributed the wall of separation to the combined effect of
both clauses:  "I contemplate with sovereign reverence that act of the
whole American people which declared that their legislature should 'make no
law respecting an establishment of religion or prohibiting the free
exercise thereof,' thus building a wall of separation between church and
State."

        I have the citations for each step in this chain at 81 Colum. L. Rev.
1373, 1380-81.

        As for the Schempp concern about establishing secular humanism, that is
best dealt with by recognizing that any teaching about the core subjects of
religion is a religion for First Amendment purposes.  Government cannot
teach the nonexistence of God, not because that would inhibit other
religions, but because it would establish a particular view about religion.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu