The First Amendment to the United States Constitution was ratified in 1791. In 1947, Supreme Court held that the Establishment Clause is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. Since that time, there has been much debate over the meaning and intent of these words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Currently, the prevailing interpretation of the Establishment Clause is that strict government neutrality is mandated between religious sects and denominations and between religion and non-religion. In Everson v. Bd. of Educ. of Ewing Twp., (1947), the Supreme Court 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.” The only precedent cited as justification for this holding was Jefferson’s infamous ‘wall of separation between church and state.’
Others argue the nonpreferentialist viewpoint; that the Establishment Clause only prohibits favoring one religion over another. In Zorach v. Clauson, 343 U.S. 306, 312 (1952), the Court held that “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. . . We find no constitutional requirement which makes it necessary for government to be hostile to religion.” This view was advocated for by the late Chief Justice Rehnquist and Justice Scalia.
In addition to the two interpretations of the Establishment Clause, the Supreme Court also uses evolving tests and standards that in the opinion of a lower federal court, has left courts and judges in “Establishment Clause purgatory.” As Justice Scalia said, “Sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not.”
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