Recent decisions by the US Supreme Court have considerably rewritten the relationship between establishments of religion, on the one hand, and governments at the federal and state levels, on the other. Scholars in the field have of course followed these decisions, and are attempting to explain the new body of doctrine, to each other and the rest of us.
The first amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” These two clauses are often thought to point in quite different directions, where the “no establishment” clause is one issue, the “free exercise” of religion is another. A law creating military conscription, for example, might exempt from the requirements of that draft adherents to certain named religions with a “Testimony of Peace.” This would be consistent with the free exercise of the religion of those adherents. But, one could argue, it could also makes the named religions collectively an “establishment of religion.” So an effort at scrupulous compliance with one of these clauses could run afoul of the other.
The Thing to Know:
Recent scholarly work in the field includes Jack Rakove’s book, BEYOND BELIEF, BEYOND CONSCIENCE, from Oxford University Press, and Jerold Waltman’s, CHURCH AND STATE IN THE ROBERTS COURT, from McFarland & Co.