Religion & Law

Responding to the kerfuffle the other day regarding the disagreement between Mr. Coons and Ms. O'Donnell regarding the constitutional status of church-state "separation", Michael Stokes Paulsen has this characteristically helpful essay.  He writes, among other things, that:

The correct understanding of the First Amendment is not that it forbids contact?and even voluntary cooperation?between church and state. Rather, it protects private religious liberty, but does so in two complementary ways. In a nutshell, government may neither compel nor prohibit religious exercise. The Establishment Clause side of the coin says that government may not prescribe religious exercise; the Free Exercise side says that government may not proscribe, disfavor or otherwise punish or prevent religious exercise voluntarily chosen by the people. But the two phrases are two sides of the same coin. It is little wonder, then, that the Supreme Court has abandoned entirely the misleading metaphor ?separation of church and state.? It simply does not help explain the true meaning of the First Amendment.

This is more than a quibble. The different understanding makes a difference in results. Under a separation view, government must discriminate against religion, reject school choice ?voucher? plans that include religious options, and extirpate religious references and symbols from public discourse. Under the original meaning of the Constitution, government must protect religious choices and include religious persons, groups, and speakers on an equal basis. It may recognize and accommodate religion, as long as it does not in effect compel persons to engage in religious exercises or practices against their will?the hallmark of what an ?establishment of religion? was understood to mean at the time the framers wrote the First Amendment.