The First Amendment as written seems too simple for American society to assimilate, complicating its meaning and clogging its application just to placate the need for incessant legal and philosophical calisthenics. The Free Exercise and Establishment Clauses of the First Amendment address only the historical contentions that precipitated them: 1) no legal establishment of one sect of Christianity or another religion as the national religion; 2) no legal prohibition against the free exercise of religious conscience of any religions, especially minority ones; 3); no taxation of the citizenry for the support of a legally preferred religion and 4) no religious test as a prerequisite to hold public office. The first three contentions can be categorized as the “historical test” or standard applicable to litigation touching the religion clauses. Since Article VI of the Constitution addressed the last contention, the “historical test” need not include it. To secure the freedom to exercise religious conscience, the Bill of Rights proscribes the federal government, and subsequently state governments via the 14th Amendment, from affirmatively engaging in the first two contentions. If seen as working together, the Establishment Clause actually protects the Free Exercise Clause. By not establishing one denomination over another through governmental edict, the Establishment Clause guarantees that all religions are free from governmental meddling, have freedom of expression, and that all religious people have freedom of conscience. Jefferson’s “wall of separation”—if applied to the contentions within the confines of their historical meaning—reduces to one conception: that governments in the United States may not prefer or proscribe one religion over another or hinder the freedom of religious expression and practice. Jefferson’s Bill for the Establishment Religious Freedom summarizes his views:
WE the General Assembly of Virginia do enact that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. [111]
Jefferson’s absolute separation of church and state is explicit in the statement “that no man shall be compelled to…support any religious worship…whatsoever.” Though Jefferson ascribed to the most rigid form of separation that prohibited almost all aid and support, the majority of the Framers, however, did not share his view.
According to Michael J. Malbin, most of the Framers ascribed to erecting a wall of separation, but that wall only prohibited the state from preferring one religion to another. [112] To them, non-discriminatory aid and support of all religions was not violative of the Bill of Rights. His analysis of the Framers’ intent additionally supports the view that the Establishment Clause also prohibited the federal government from establishing a legally recognized national religion, like the Anglican Church was in England and in Virginia. If this is the historical consensus, there is no reason to favor the opinions of one man when at least fifty-four other competent Framers did not agree. In drafting the Bill of Rights, Madison did not adhere to Jefferson’s “Bill for Religious Freedom” as his template. His main concern was prohibiting the establishment of a national religion and its preferential treatment. This is precisely the contention the colonists had with the Church of England and with “established” churches in Massachusetts that wanted to preserve their society as a Christian Commonwealth. There is nothing more to add and nothing more to fabricate. Precious legal time would not have been wasted on the myriad of legal cases dealing with this issue had judges and legislators been consistent in the application of this simple test. There would be no discrimination in applying this principle across the board, as non-profit 503©(3) status is available to all religions. The only individuals that would encounter problems asserting First Amendment violations would be those who have no “god,” since the historical definition of religion in this country has “God” as the central figure to whom mankind renders worship, allegiance, gratitude, and obedience. That the non-religious has no standing in the religion clauses is self-evident and not inconsistent given the historical contentions. Furthermore, there are social benefits the non-religious may reap from uniform support of religion, since accountability to authority and moral rectitude reinforced through religious teaching will minimize social loss, as James McHenry rightly observed.
