The Establishment Clause Still Matters. Here’s Why.

Ilya Shapiro doubles down on his one-sided view of the Constitution’s protection of religious liberty, turning a blind eye to the Establishment Clause and its structural guarantee of religious neutrality by the government. He basically reads the Establishment Clause right out of the First Amendment.

Shapiro justifies his disregard of the Establishment Clause on the basis that “modern America simply doesn’t face a threat of ‘establishing’ state religions of the kind that caused the Framers to write this provision into the First Amendment.” On this view, the Establishment Clause was once important but has been consigned to the dustbin of history.

The problem is that Shapiro ignores what the First Amendment actually says. It does not simply forbid the establishment of an official state-approved religion. Its language is broader, prohibiting the making of any “law respecting the establishment of religion.” As the Supreme Court has recognized, “[t]he very language of the Establishment Clause represented a significant departure from early drafts that merely prohibited a single national religion.” As written, the Establishment Clause ensures that, in the words of James Madison, “[t]he Religion … of every man must be left to the conviction and conscience of every man,” preventing efforts to “degrade[] from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority.” That is why the Supreme Court has held that “[t]he clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Far from being a dead letter, the Establishment Clause’s assurance of religious equality provides a crucial protection of religious liberty, particularly in this day and age.

Shapiro is equally dismissive of perhaps the biggest religious liberty question of the day: Donald Trump’s effort to make good on his campaign promise to enact a “Muslim ban,” which has been temporarily blocked by the courts on the grounds that Trump’s executive order likely violates the Establishment Clause. Yet according to Shapiro, “[t]his is not a burning constitutional issue—let alone one concerning the Establishment Clause.” 

Shapiro calls Trump’s effort “lackadaisical,” claiming that “his administration hasn’t done a single thing that hurts the religious liberty of Muslims in America.” Once again, Shapiro’s crabbed arguments have no footing in the real world. Far from being narrow, Trump’s Muslim travel ban, even as revised, affects millions of people from six Muslim-majority nations. As Fourth Circuit Judge Barbara Kennan observed during oral argument in IRAP v. Trump, “You’re talking about 82 million people.” The travel ban prevents U.S. citizens and others within the United States from reuniting with families and stigmatizes Muslims as a danger to our country. Trump’s sweeping executive order writes religious discrimination into our immigration laws—a frontal assault to the religious freedom our Constitution promises to all, regardless of their religious faith. Whatever power the President has under immigration laws—and there is no doubt he has considerable leeway—he cannot erase the Constitution’s commands. A religious immigration test designed to denigrate those who believe in Islam cannot be squared with the Establishment Clause.

Our Constitution’s Religion Clauses establish a firm foundation for religious liberty and equality in America, ensuring a government that “gives to bigotry no sanction, to persecution no assistance.” You don’t defend the Religion Clauses by trashing one of them.

Also from this issue

Lead Essay

  • Ilya Shapiro reviews recent U.S. Supreme Court cases on religious liberty and examines how each of them is the product of government intrusion into civil society - into areas of life that, while public, are nongovernmental. These include organized religions, businesses, and private civic and social groups. These institutions of civil society do much good work, and Americans of all political persuasions are increasingly aware that they are under attack. We are brought into needless conflict with one another, Shapiro writes, whenever the government decrees how these institutions must conduct themselves with regard to matters of conscience.

Response Essays

  • David H. Gans draws our attention away from the Free Exercise Clause and toward the Establishment Clause. A ban on travel from overwhelmingly Muslim countries - and not on travel from others - constitutes an official disfavor, he argues, particularly in light of the clear statements that have been made about the ban’s intent. The greatest threat to religious liberty today is the threat to the religious liberty of Muslims. Meanwhile, he argues, religious exemptions to general laws are often of doubtful legality and tend to threaten the liberties of those whom they do not single out for protection.

  • Religious liberty is protected in two ways in our Constitution: First, the government may not establish any religion, nor may it officially disfavor any; and second, individuals’ free exercise is also protected. K. Hollyn Hollman urges us to reject too-simple narratives about religious liberty and government interference, though, because the politicization of religious liberty is itself a danger to religious liberty. Political point-scoring makes workable compromises harder to find.

  • Robin Fretwell Wilson issues a call for compromise in today’s battles over the Establishment Clause. There can be no expectation that either the religiously observant, or those to whom they object, will disappear from our society anytime soon. And yet life must go on. Compromise is not such an unreasonable thing to expect, she argues, because all have a vested interest in finding ways to live together despite their differences.