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The disincorporation proclamation: emancipating the establishment clause from the Fourteenth Amendment.

I. INTRODUCTION

Although the Establishment Clause states: "Congress shall make no law respecting an establishment of religion ... the Supreme Court in 1947 read the Establishment Clause into the Due Process Clause of the Fourteenth Amendment and began enforcing it against the states.* 1 2 As a result, every city council, school board, and county and state government in the nation became liable to suit for perceived instances of prayer, (3) Bible reading, (4) Ten Commandments displays, (5) or any other whiff of religion (6) that might offend militant unbelievers such as the American Civil Liberties Union (ACLU) and the Freedom from Religion Foundation. State expenditures on education that might aid religious schools would receive particularly close scrutiny, (7) as did annual holiday displays. (8) The Court facilitated the filing of Establishment Clause complaints by loosening standing requirements to permit any taxpayer to bring suit alleging a legislative appropriation to aid religion. (9) In some cases, government officials, fearful of Establishment Clause litigation, preemptively excluded religious groups from forums open to other members of the public. (10)

Whether Establishment Clause cases are decided under strict or loose standing requirements, or under the Lemon test, (11) endorsement test, (12) or coercion test, (13) the larger question is whether the Supreme Court legitimately possesses authority to hear Establishment Clause challenges to state law. If the answer is no, states will be free to emphasize religion as they choose, pro or con, subject to the restrictions of the Free Exercise Clause and their own

state constitutions, without the inhibiting oversight of the federal judiciary. In the process, the lucrative fees for civil rights attorneys who prosecute these cases will also vanish. (14)

II. HISTORY

The Bill of Rights, designed by the Founders to limit the federal government, originally did not apply to the states. "These amendments," wrote Chief Justice John Marshall, "demanded security against the apprehended encroachments of the general government--not against those of the local governments." (15) Noting that the Constitution had a specific section listing restraints on the States (16) and that the first eight amendments had no similar designation, Marshall concluded: "These amendments contain no expression indicating an intention to apply them to the state governments. This court cannot so apply them." (17) The Civil War Amendments (18) changed this situation. The Fourteenth Amendment, in particular, subjected the states to its commands:

   No State shall make or enforce any law which shall
   abridge the privileges or immunities of citizens of
   the United States; nor shall any State deprive any
   person of life, liberty, or property, without due
   process of law; nor deny to any person within its jurisdiction
   the equal protection of the laws. (19)


Rep. John Bingham, author of this language, explained that he adopted the "no state shall" phrase directly from Article I, [section] 10 to meet Marshall's objection that "the existing amendments are not applicable to and do not bind the States." (20)

   In reexamining that case of Barron,... I noted and
   apprehended as I never did before, certain words in
   that opinion of Marshall. Referring to the first eight
   articles of amendments to the Constitution of the
   United States, the Chief Justice said: "Had the framers
   of these amendments intended them to be limitations
   on the powers of the State governments they
   would have imitated the framers of the original
   Constitution, and have expressed that intention."

   Acting upon this suggestion I did imitate the framers
   of the original Constitution. As they had said
   "no State shall emit bills of credit, pass any bill of
   attainder, ex post facto law, or law impairing the
   obligations of contracts;" imitating their example
   and imitating it to the letter, I prepared the provision
   of the first section of the fourteenth amendment as it
   stands in the Constitution.... (21)


Bingham also explained that the privileges and immunities of the Fourteenth Amendment "are chiefly defined in the first eight amendments to the Constitution of the United States." (22) Senator Jacob Howard, introducing the Fourteenth Amendment in the Senate, reiterated that the first eight amendments did not operate "in the slightest degree as a restraint or prohibition upon State legislation. States are not affected by them ..." (23) To remedy this situation, "[t]he great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees." (24)

In the view of the sponsors of the Fourteenth Amendment, the purpose of the Privileges or Immunities Clause was to make the first eight amendments to the Bill of Rights applicable to the states. (25) Does that mean that the Establishment Clause of the First Amendment is now enforceable against the states?

III. THE FIRST AMENDMENT: GRAMMATICAL DISTINCTIONS

The Establishment Clause, as commonly referenced, (26) is actually part of the Religion Clause which is a section of the First Amendment. The First Amendment limits the legislative power, the power to make laws, by specifically forbidding three types of laws, those (1) "respecting an establishment of religion, or prohibiting the free exercise thereof'; (2) "abridging the freedom of speech, or of the press"; or (3) [abridging] "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (27) Although the First Amendment curtails the power of Congress in three general areas--religion, free speech, and assembly--the adjectival phrases modifying the lawmaking power use three different participles: respecting, prohibiting, and abridging. (28) These three words all have different meanings, and thus set different subject-matter specific limits on the legislative power. "Prohibiting" (29) is the narrowest of the three, allowing laws about free exercise of religion short of absolute prohibitions. Thus, according to the text, Congress may pass laws encouraging, promoting, or even limiting the free exercise of religion, as long as such laws do not "prohibit." (30) "Abridging" (31) is a broader concept than "prohibiting." One may abridge an activity even though not prohibiting it. Thus, Congress has broader power to legislate in the area of free exercise than in the areas of speech and assembly. As long as free exercise is not prohibited, Congress may pass laws affecting it, but for speech and assembly, anything that even abridges the right, while not prohibiting it, is disallowed. (32)

Finally, "Congress shall make no law respecting an establishment of religion ... ," (33) The word "respecting" (34) is far broader than "abridging." Congress may not pass laws relating in any way to an establishment of religion. The entire subject matter is off limits. Unlike free exercise, or speech and assembly, where Congress may legislate short of prohibiting or abridging, (35) no legislation contemplating an establishment of religion--whether favorable, neutral, or unfavorable--is allowed. (35) Because the Constitution does not limit the power of the states in this area, the entire subject of establishments is left to the states. (37) Congress may not touch it (38)--at least before the Fourteenth Amendment.

IV. THE LOGICAL IMPOSSIBILITY OF APPLYING THE ESTABLISHMENT CLAUSE TO THE STATES

Many commentators recognize the similarity between the Establishment Clause and the Tenth Amendment. (39) Because both provisions function as structural restraints on the federal government--making explicit what is implicit in the concept of a government of enumerated powers--the Tenth Amendment has been called a "truism" or a "tautology." (40) Obviously, what is not delegated is retained. (41) However, in an era of expanding federal government power, this acknowledgement is very important in delineating the limits of federal authority. Likewise, the Establishment Clause does not ascribe personal rights to the individual, but instead restrains the federal government from acting. An establishment of religion, funded from general tax revenues, does not impinge upon anyone's personal rights as long as the free exercise of religion is unimpeded. (42) Yet the Constitution independently prohibits it apart from any personal detriment. (43)

Contrary to the current enforcement practices of the Supreme Court, the Establishment Clause did not originally devolve upon the federal government a duty to sniff out religiously-flavored government actions whenever they might be detected. (44) Instead, it prohibited the national authority from doing anything with respect to religion, favorable or unfavorable. The Clause operated as a particular application of the Tenth Amendment, expressly reserving to the states plenary power over the question of religious establishments. As Michael McConnell explains: "Contrary to popular myth, the First Amendment did not disestablish anything. It prevented the newly formed federal government from establishing religion or from interfering in the religious establishments of the states." (45) Political scientist Vincent Munoz adds: "Because the original meaning only recognizes a jurisdictional boundary that protects state authority, it cannot be logically incorporated to apply against state governments." (46) As a result, the Establishment Clause "did not constitutionalize a personal right of 'non establishment.'" (47)

Any right created by the Establishment Clause is a sovereign right of the states to be free from federal control, not a personal right of individuals. Thomas Jefferson cited the intersection of the Establishment Clause with the Tenth Amendment as the reason son why he did not, as President, declare a national day "of fasting & prayer":

   I consider the government of the U[.]S as interdicted
   by the Constitution from intermeddling with
   religious institutions, their doctrines, discipline, or
   exercises. This results not only from the provision
   that no law shall be made respecting the establishment,
   or free exercise, of religion, but from that also
   which reserves to the states the powers not delegated
   to the U. S. Certainly no power to prescribe
   any religious exercise, or to assume authority in religious
   discipline, has been delegated to the general
   government. It must then rest with the states.... (48)


Thus, according to Jefferson, the states have plenary power, and the federal government none. During his time, Jefferson further explained, failure to recognize this distinction led federal officials to wrongly imitate state religious customs: "I have ever believed that the example of state executives led to the assumption of that authority by the general government, without due examination, which would have discovered that what might be a right in a state government, was a violation of that right when assumed by another." (49) Even Justice William Brennan, a staunch advocate of employing the Establishment Clause to cleanse the states of public expressions of religion, admitted the peculiar federalist nature of the provision:

   Most of the provisions of the Bill of Rights, even if
   they are not generally enforceable in the absence of
   state action, nevertheless arise out of moral intuitions
   applicable to individuals as well as governments.
   The Establishment Clause, however, is quite
   different. It is, to its core, nothing less and nothing
   more than a statement about the proper role of government
   in the society that we have shaped for ourselves
   in this land. (50)


Because incorporating the Tenth Amendment against the States is nonsensical, (51) so is incorporating the Establishment Clause. (52) Applying states' rights against the states is illogical. (53) In 2002, Justice Clarence Thomas acknowledged that application of the Establishment Clause to the states through the Fourteenth Amendment is a "difficult question." (54) Two years later, stating that "the Establishment Clause is a federalism provision, which, for this reason, resists incorporation," (55) he elaborated:

   The text and history of the Establishment Clause
   strongly suggest that it is a federalism provision intended
   to prevent Congress from interfering with
   state establishments. Thus, unlike the Free Exercise
   Clause, which does protect an individual right, it
   makes little sense to incorporate the Establishment
   Clause.

   ...

   Moreover, incorporation of this putative individual
   right leads to a peculiar outcome: It would prohibit
   precisely what the Establishment Clause was intended
   to protect--state establishments of religion.
   ... At the very least, the burden of persuasion rests
   with anyone who claims that the term took on a different
   meaning upon incorporation. (56)


The following year, Justice Stevens acknowledged Justice Thomas' argument that the Establishment Clause has "its own unique history," and offered the practical objection that " ... even if the decision to incorporate the Establishment Clause was misguided, it is at this point unwise to reverse course given the weight of precedent that would have to be cast aside...." (57) In constitutional cases, however, stare decisis (58) carries less weight. Justice Rehnquist explained: "Stare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision. This is particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible." (59) Especially "when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent."' (60)

V. THE ESTABLISHMENT CLAUSE AND THE FOURTEENTH AMENDMENT

If textually and logically, the Establishment Clause is not applicable to the States, and stare decisis does not prohibit reconsideration of incorporation, what does the Reconstruction Era history disclose? Evidence of intent to incorporate free exercise rights is substantial (61) and logical. (62) In contrast, evidence that the Framers of the Fourteenth Amendment intended to control all state discretion in matters of religion is scant (63) and, as stated previously, illogical. (64) The voluntary elimination of all remaining formal state establishments within a generation of the ratification of the Bill of Rights (65) indicates that suppressing state establishments was not a pressing concern for the Reconstruction Congress. That the states ratifying the Fourteenth Amendment to provide equal rights of citizenship for former slaves also intended as an afterthought to deprive themselves of their own autonomy to regulate church-state relations is implausible. The incorporation of the Establishment Clause by diktat in 1947, without any supporting reasoning, is further confirmation that neither history nor logic supported the act. (66) The shield that had protected the states from federal interference in their religious affairs became a spear aimed at that autonomy. (67) In Everson, the Court razed the true wall of separation between the federal government and the states. (68)

VI. FURTHER EVIDENCE: THE BLAINE AMENDMENT

In 1875, only seven years after ratification of the Fourteenth Amendment, Senator James G. Blaine proposed an amendment to the Constitution incorporating the Religion Clause in its entirety against the states, and also prohibiting state aid to religious schools. (69) The amendment passed the house, (70) but narrowly failed in the Senate. (71) Proffered to attract nativist support for his campaign for the 1876 Republican presidential nomination, (72) Blaine's amendment (and other similar proposals), writes a leading religion scholar, "clearly assumed that the Fourteenth Amendment had not already applied the First Amendment to the states." (73) In 1874, the secularist National Liberal League proposed adding a provision to the Constitution "prohibiting the several states from establishing a State religion." (74) The revised First Amendment, the League explained, "would be the death-warrant of all attempts to pervert the Constitution to the service of Roman Catholicism or any other form of Christianity." (75) One sympathizer, former New York State judge Elisha Hurlbut, explained that certain clauses in the Constitution "might be tortured into a construction prohibitory of state establishment of religion," but he felt that the Privileges or Immunities Clause could not be applied to this purpose. (76) Writing in 1870, he assumed that the Constitution "as it stands" placed no restrictions on state legislation about religion. Proposing a Blaine-type amendment, he stated: "It is better that a Constitution should speak plainly than hint its meaning." (77)

These proposals, and Congressional consideration of the Blaine Amendment, indicate that political opinion on incorporation of the Establishment Clause (and perhaps the Bill of Rights in general) was somewhat inchoate in the years immediately after ratification of the Fourteenth Amendment. (78) Thus, the bold incorporation by the Everson Court, without visiting any Reconstruction-Era history, seems not only potentially flawed, but also improvident. The failure of the Blaine Amendment, though not dispositive of the incorporation issue, (79) provides added cause for skepticism. When, given the opportunity, Congress did not send this overt language to the states for ratification, one may reasonably question the unreflective assumption that the Fourteenth Amendment had incorporated the Establishment Clause back in 1868. (80)

VII. AFTER DISINCORPORATION

Assuming that disincorporation of the Establishment Clause would accord with plain meaning, logic, and history, what would the consequences be?

A. The Establishment Clause Would Still Apply to the Federal Government

Disincorporation of the Establishment Clause would not limit its application to the federal government. With the Fourteenth Amendment removed from the picture, the original meaning would remain: "Congress shall make no law...." (81) Thus, the Court would still police federal legislation for Establishment Clause violations. (82) Only the states would be freed from the Court's oversight. (83)

B. The Court Would Still Enforce the Free Exercise Clause Against the States

Were the Establishment Clause unincorporated, the Free Exercise Clause (properly applied through the Privileges or Immunities Clause) would remain as a protection for individual rights. (84) Justice Thomas, though doubting the validity of Establishment Clause incorporation, accepts incorporation of the Free Exercise Clause. (85) Emblems of a traditional establishment, such as assessments or compulsory attendance, would rise to the level of "coercive government preferences," thus implicating the Free Exercise Clause. (86) Although the Free Exercise Clause no longer applies to "neutral, generally applicable law," (87) hybrid cases involving free exercise coupled with free speech or parental rights may still be heard. (88) Cases that involve individualized exemptions (89) or discriminatory targeting of religion are also justiciable. (90) Thus, federal free exercise jurisdiction over state laws would be undisturbed. (91) In fact, Justice Thomas states: "It may well be the case that anything that would violate the incorporated Establishment Clause would actually violate the Free Exercise Clause, further calling into doubt the utility of incorporating the Establishment Clause." (92)

C. State Constitutions Would Take Up the Slack

Were the Establishment Clause disincorporated, the religion clauses in state constitutions would be the first line of protection for religious freedom. Every state Constitution has a Free Exercise Clause. (93) Eight are identical to the federal provision, (94) and one is similar, but stronger. (95) The other forty-two are redolent of former times when religious freedom was highly exalted. (96) In the wake of Employment Division v. Smith, enervating the federal Free Exercise Clause, (97) some states found, in their own constitutions, stronger protection for free exercise of religion than the Supreme Court had discerned in the First Amendment. Noting that the state constitutional language "is of a distinctively stronger character than the federal counterpart," the Minnesota Supreme Court concluded that government action satisfying the First Amendment might "nonetheless infringe on or interfere with" religious practice protected by the Minnesota Constitution. (98) Similarly, the Washington Supreme Court post-Smith held that the religious freedom language of its state constitution was "significantly different and stronger than the federal constitution." (99) Noting that Smith "departs from a long history of established law and adopts a test that places free exercise in a subordinate, instead of preferred position," the Court turned to the robust language of the Washington Constitution to remedy the defect. (100) Other states have done the same, relying on state constitutional provisions to restore strict scrutiny to free exercise claims. (101)

Almost every state constitution has an establishment clause. (102) Nine copy the federal "respecting" language. (103) The others are far more specific, (104) reminiscent of an early Senate version of the Establishment Clause that read: "Congress shall make no law establishing articles of faith or a mode of worship...." (105) Five states expressly ban mandatory tithing. (106) Twenty-seven states prohibit compelled attendance or support of any place of worship. (107) Twenty-seven states forbid giving preference by law to any particular religious society or mode of worship. (108) Twenty-one states prohibit appropriation of public funds for the benefit of any religious organization. (109)

About forty state constitutions have specific provisions outlawing use of public funds for support of religious ("sectarian") schools. (110) These "Baby Blaine" amendments arose before and after the Civil War to accomplish state-by-state what the Blaine Amendment sought to do nationally. (111) Thus, the state constitutions are well-armored to protect against any sudden post-disincorporation lurch into theocracy. Indeed, a large majority have more stringent express limitations on state support of religion than does the bare language of the Federal Constitution.

In Locke v. Davey, the Supreme Court recognized that state antiestablishment provisions may draw "a more stringent line" than the Federal Constitution without necessarily bumping into the Free Exercise Clause. (112) Thus, state constitutions may provide stricter protection against establishments, exceeding the federal minimum. (113) A Florida appellate court, relying on Locke, applied the

no-sectarian-appropriation provision of its state constitution to strike a scholarship voucher program that would otherwise pass muster under the Federal Constitution. (114) Similarly, relying on its own Blaine Amendment, the Kentucky Supreme Court struck a $10 million appropriation for a pharmacy building at a Baptist university. (115) In light of the numerous state constitutional provisions prohibiting sectarian aid, even separationists should have nothing to fear from disincorporation. (116)

VIII. CONCLUSION

Why have one Supreme Court for the entire nation in the delicate area of religious freedom, (117) when each state already has such protection for its own people? (118) Will not fifty separate courts, each with its own jurisdiction and knowledge of local circumstances, better adjudicate these thorny issues? (119) How did the Religion Clause arise but from the demand of the states that the federal government not intrude into this sovereign realm? (120) Was the Civil War fought to give the federal government an arbitrary hand in local issues of church-state relations? Surely not. To employ a phrase coined by Justice Stevens, the Supreme Court should turn around and "cross back over the incorporation bridge." (121)

APPENDIX 1

Federal Religion Clause Cases (1970-2005)

[] Gillette v. United States, 401 U.S. 437 (1971) (conscientious objection).

[] Tilton v. Richardson, 403 U.S. 672 (1971) (federal aid to education).

[] Johnson v. Robison, 415 U.S. 361 (1974) (conscientious objection).

[] Harris v. McRae, 448 U.S. 297 (1980) (Medicaid abortion).

[] Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464 (1982) (transfer of federal property to religious organization).

[] United States v. Lee, 455 U.S. 252 (1982) (objection to payment of social security taxes).

[] Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (disallowance of tax deduction for racial discrimination).

[] Tony & Susan Alamo Found, v. Sec'y of Labor, 471 U.S. 290 (1985) (application of Fair Labor Standards Act to religious organization).

[] Aguilar v. Felton, 473 U.S. 402 (1985) (federal aid to education).

[] Goldman v. Weinberger, 475 U.S. 503 (1986) (religious apparel in the Air Force).

[] Bowen v. Roy, 476 U.S. 693 (1986) (objection to use of social security number).

[] Corp. of the Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327 (1987) (Title VII religious exemption).

[] Lyng v. Nw. Indian Cemetery Prot. Ass'n, 485 U.S. 439 (1988) (Indian burial ground in national park).

[] Bowen v. Kendrick, 487 U.S. 589 (1988) (federal grant to religious organization).

[] Hernandez v. Comm'r, 490 U.S. 680 (1989) (tax deduction for religious organization).

[] Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) (Equal Access Act).

[] Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (Individuals with Disabilities Education Act).

[] Agostini v. Felton, 521 U.S. 203 (1997) (federal aid to education).

[] City of Boerne v. Flores, 521 U.S. 507 (1997) (Religious Freedom Restoration Act).

[] Mitchell v. Helms, 530 U.S. 793 (2000) (federal aid to education).

[] Cutter v. Wilkinson, 544 U.S. 709 (2005) (Religious Land Use & Institutional Persons Act).

Appendix 2

Non-Federal Free Exercise Cases (1970-2005)

[] Cruz v. Beto, 405 U.S. 319 (1972) (prison discrimination against particular faith).

[] Wisconsin v. Yoder, 406 U.S. 205 (1972) (compulsory high school attendance).

[] Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976) (church internal affairs autonomy).

[] McDaniel v. Paty, 435 U.S. 618 (1978) (disqualification of ministers to be legislators).

[] Jones v. Wolf, 443 U.S. 595 (1979) (church property dispute).

[] Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (religious activity at state fair).

[] Widmar v. Vincent, 454 U.S. 263 (1981) (use of state university facilities).

[] Ohio Civil Rights Comm'n v. Dayton Christian Sch., Inc., All U.S. 619 (1986) (employment discrimination).

[] Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987) (unemployment compensation).

[] O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (prison discrimination against particular faith).

[] Frazee v. Illinois Dep't of Emp't Sec., 489 U.S. 829 (1989) (unemployment compensation).

[] Jimmy Swaggart Ministries v. Bd. of Equalization of California, 493 U.S. 378 (1990) (sales tax on religious materials).

[] Emp't Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) (religious peyote ritual).

[] Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (ritual sacrifice).

[] Watchtower Bible & Tract Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150 (2002) (licensing of tract distribution).

[] Locke v. Davey, 540 U.S. 712 (2004) (state scholarship funds).

Appendix 3

State Free Exercise Clauses

Ala. Const, art. I, [section] 3 ("[T]he civil rights, privileges, and capacities of any citizen shall not be in any manner affected by his religious principles.").

Alaska Const, art. I, [section] 4 ("No law shall be made ... prohibiting the free exercise [of religion].").

Ariz. Const, art. II, [section] 12 ("The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state.").

Ark. Const, art. II, [section] 24 ("All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. ... No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience[.]").

Cal. Const, art. I, [section] 4 ("Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.").

Colo. Const, art. II, [section] 4 ("The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness or justify practices inconsistent with the good order, peace or safety of the state.").

Conn. Const, art. I, [section] 3 ("The exercise and enjoyment of religious profession and worship, without discrimination, shall forever be free to all persons in the state; provided, that the right hereby declared and established, shall not be so construed as to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the state.").

Del. Const, art. I, [section] 1 ("[N]o power shall or ought to be vested in or assumed by any magistrate that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship....").

Fla. Const, art. I, [section] 3 ("There shall be no law ... prohibiting or penalizing the free exercise [of religion]. Religious freedom shall not justify practices inconsistent with public morals, peace or safety").

Ga. Const, art. I, [section] 1, [paragraph] 3 ("Each person has the natural and inalienable right to worship God, each according to the dictates of that person's own conscience; and no human authority should, in any case, control or interfere with such right of conscience."); id. art. I, [section] 1, [paragraph] 4 ("No inhabitant of this state shall be molested in person or property ... on account of religious opinions; but the right of freedom of religion shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.").

Haw. Const, art. I, [section] 4 ("No law shall be enacted ... prohibiting the free exercise [of religion]....").

Idaho Const, art. I, [section] 4 ("The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, or excuse acts of licentiousness or justify polygamous or other pernicious practices, inconsistent with morality or the peace or safety of the state; nor to permit any person, organization, or association to directly or indirectly aid or abet, counsel or advise any person to commit the crime of bigamy or polygamy, or any other crime.").

Ill. Const, art. I, [section] 3 ("The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed, and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State.").

Ind. Const, art. I, [section][section] 2-3 ("All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences. No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.").

Iowa Const, art. I, [section] 3 ("The general assembly shall make no law ... prohibiting the free exercise [of religion]....").

Kan. Const. Bill of Rights [section] 7 ("The right to worship God according to the dictates of conscience shall never be infringed; nor shall any control of or interference with the rights of conscience be permitted....").

Ky. Const. Bill of Rights [section] 1 ("All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... Second: The right of worshiping Almighty God according to the dictates of their consciences."); id. [section] 5 ("[A]nd the civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience.").

La. Const, art. I, [section] 8 ("No law shall be enacted ... prohibiting the free exercise [of religion].").

Mass. Const, amend. XVIII, [section] 1 ("No law shall be passed prohibiting the free exercise of religion.").

Me. Const, art. I, [section] 3 ("All individuals have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences, and no person shall be hurt, molested or restrained in that person's liberty or estate for worshiping God in the manner and season most agreeable to the dictates of that person's own conscience, nor for that person's religious professions or sentiments, provided that that person does not disturb the public peace, nor obstruct others in their religious worship....").

Md. Const, art. 36 ("That as it is the duty of every man to worship God in such manner as he thinks most acceptable to Him, all persons are equally entitled to protection in their religious liberty; wherefore, no person ought by any law to be molested in his person or estate, on account of his religious persuasion, or profession, or for his religious practice, unless, under the color of religion, he shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others in their natural, civil or religious rights....").

Mass. Const, art. II ("It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe. And no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshiping GOD in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.").

Mich. Const, art. I, [section] 4 ("Every person shall be at liberty to worship God according to the dictates of his own conscience. The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.").

Minn. Const, art. I, [section] 16 ("The right of every man to worship God according to the dictates of his own conscience shall never be infringed ... but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state....").

Miss. Const, art. Ill, [section] 18 ("[T]he free enjoyment of all religious sentiments and the different modes of worship shall be held sacred. The rights hereby secured shall not be construed to justify acts of licentiousness injurious to morals or dangerous to the peace and safety of the state....").

Mo. Const, art. I, [section] 5 ("That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience ... but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others.").

Mont. Const, art. II, [section] 5 ("The state shall make no law ... prohibiting the free exercise [of religion].").

Neb. Const, art. I, [section] 4 ("All persons have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. [N]or shall any interference with the rights of conscience be permitted.").

Nev. Const, art. I, [section] 4. ("The free exercise and enjoyment of religious profession and worship without discrimination or preference shall forever be allowed in this State ... but the liberty of [conscience] hereby secured, shall not be so construed, as to excuse acts of licentiousness or justify practices inconsistent with the peace, or safety of this State.").

N.H. Const, pt. 1, art. 5 ("Every individual has a natural and unalienable right to worship God according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience; or for his religious profession, sentiments, or persuasion; provided he doth not disturb the public peace or disturb others in their religious worship.").

N.J. Const, art. I, [section] 3 ("No person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience....").

N.M. Const, art. II, [section] 11 ("Every man shall be free to worship God according to the dictates of his own conscience, and no person shall ever be molested or denied any civil or political right or privilege on account of his religious opinion or mode of religious worship.").

New York Const, art. I, [section] 3 ("The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this state to all humankind; . . . but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.").

N. C. Const, art. I, [section] 13 ("All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.").

N. D. Const, art. I, [section] 3 ("The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state ... but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this state.").

Ohio Const, art. I, [section] 7 ("All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. [N]or shall any interference with the rights of conscience be permitted.").

Okla. Const, art. I, [section] 2 ("Perfect toleration of religious sentiment shall be secured, and no inhabitant of the State shall ever be molested in person or property on account of his or her mode of religious worship; and no religious test shall be required for the exercise of civil or political rights. Polygamous or plural marriages are forever prohibited.").

Or. Const, art. I, [section] 2 ("All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences."); id. art. I, [section] 3 ("No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.").

Pa. Const, art. I, [section] 3 ("All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; ... no human authority can, in any case whatever, control or interfere with the rights of conscience....").

R. I. Const, art. I, [section] 3 ("[N]o person shall be ... enforced, restrained, molested, or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person's religious belief; and that every person shall be free to worship God according to the dictates of such person's conscience, and to profess and by argument to maintain such person's opinion in matters of religion; and that the same shall in no wise diminish, enlarge, or affect the civil capacity of any person.").

S. C. Const, art. I, [section] 2 ("The General Assembly shall make no law ... prohibiting the free exercise [of religion].").

S.D. Const, art. VI, [section] 3 ("The right to worship God according to the dictates of conscience shall never be infringed. No person shall be denied any civil or political right, privilege, or position on account of his religious opinions; but the liberty of conscience hereby secured shall not be so construed as to excuse licentiousness, the

invasion of the rights of others, or justify practices inconsistent with the peace or safety of the state.").

Tenn. Const, art. I, [section] 3 ("That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; ... that no human authority can, in any case whatever, control or interfere with the rights of conscience....").

Tex. Const, art. I, [section] 6 ("All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion....").

Utah Const, art. I, [section] 4 ("The rights of conscience shall never be infringed. The state shall make no law ... prohibiting the free exercise [of religion]."); id. art. III. ("Perfect toleration of religious sentiment is guaranteed. No inhabitant of this State shall ever be molested in person or property on account of his or her mode of religious worship; but polygamous or plural marriages are forever prohibited.").

Vt. Const, ch. I, art. 3 ("That all persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God. [N]or can any person be justly deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculia[r] mode of religious worship; and that no authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship.").

Va. Const, art. I, [section] 16 ("That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be ... burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities.").

Wash. Const, art. I, [section] 11 ("Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.").

W.Va. Const, art. III, [section] 15 ("No man ... shall ... be enforced, restrained, molested or burthened, in his body or goods, or otherwise suffer, on account of his religious opinions or belief, but all men shall be free to profess and by argument, to maintain their opinions in matters of religion; and the same shall, in nowise, affect, diminish or enlarge their civil capacities....").

Wis. Const, art. I, [section] 18 ("The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; ... nor shall any control of, or interference with, the rights of conscience be permitted....").

Wy. Const, art. I, [section] 18 ("The free exercise and enjoyment of religious profession and worship without discrimination or preference shall be forever guaranteed in this state, and no person shall be rendered incompetent to hold any office of trust or profit, ... but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of the state.").

Appendix 4

State Establishment Clauses

Ala. Const, art. I, [section] 3 ("That no religion shall be established by law; that no preference shall be given by law to any religious sect, society, denomination, or mode of worship; that no one shall be compelled by law to attend any place of worship; nor to pay any tithes, taxes, or other rate for building or repairing any place of worship, or for maintaining any minister or ministry....").

Alaska. Const, art. I, [section] 4 ("No law shall be made respecting an establishment of religion....").

Ariz. Const, art. II, [section] 12 ("No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment."); id. art. IX, [section] 10 ("No tax shall be laid or appropriation of public money made in aid of any church ...

Ark. Const, art. II, [section] 24 ("[N]o man can, of right, be compelled to attend, erect or support any place of worship; or to maintain any ministry against his consent ... and no preference shall ever be given, by law, to any religious establishment, denomination or mode of worship above any other.").

Cal. Const, art. I, [section] 4 ("The Legislature shall make no law respecting an establishment of religion.").

Colo. Const, art. II, [section] 4 ("No person shall be required to attend or support any ministry or place of worship, religious sect or denomination against his consent. Nor shall any preference be given by law to any religious denomination or mode of worship.").

Conn. Const, art. VII ("[N]o person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association. No preference shall be given by law to any religious society or denomination in the state.").

Del. Const, art. I, [section] 1. ("[N]o person shall or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his or her own free will and consent; ... nor a preference given by law to any religious societies, denominations, or modes of worship.").

Fla. Const, art. I, [section] 3 ("There shall be no law respecting the establishment of religion.... No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.").

Ga. Const, art I, [section] 2, [paragraph] VII ("No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.")

Haw. Const, art. I, [section] 4 ("No law shall be enacted respecting an establishment of religion....").

Idaho Const, art. I, [section] 4 ("No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship."); id. art. IX, [section] 5 ("Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian or religious society, or for any sectarian or religious purpose ...; nor shall any grant or donation of land, money or other personal property ever be made by the state, or any such public corporation, to any church or for any sectarian or religious purpose....").

Ill. Const, art. I, [section] 3 ("No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship."); id. art. X, [section] 3 ("Neither the General Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, ... nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose.").

Ind. Const, art. I, [section] 4 ("No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent").

Iowa Const, art. I, [section] 3 ("The general assembly shall make no law respecting an establishment of religion ...; nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry.").

Kan. Const. Bill of Rights, [section] 7 ("[N]or shall any person be compelled to attend or support any form of worship; ... nor any preference be given by law to any religious establishment or mode of worship.")

Ky. Const. Bill of Rights [section] 5 ("No preference shall ever be given by law to any religious sect, society or denomination; nor to any particular creed, mode of worship or system of ecclesiastical polity; nor shall any person be compelled to attend any place of worship, to contribute to the erection or maintenance of any such place, or to the salary or support of any minister of religion....").

La. Const, art. I, [section] 8 ("No law shall be enacted respecting an establishment of religion....").

Me. Const, art. I, [section] 3 ("[N]o subordination nor preference of any one sect or denomination to another shall ever be established by law....").

Md. Const. Decl. of Rts. art. 36 ("[N]or ought any person to be compelled to frequent, or maintain, or contribute, unless on contract, to maintain, any place of worship, or any ministry....").

Mass. Const, pt. 1, art. Ill ("[N]o subordination of any one sect or denomination to another shall ever be established by law."); id. amend. XVIII, [section] 2 ("[N]o grant, appropriation or use of public money or property or loan of public credit shall be made or authorized for the purpose of founding, maintaining or aiding any church, religious denomination or society.").

Mich. Const, art. I, [section] 4 ("No person shall be compelled to attend, or, against his consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes or other rates for the support of any minister of the gospel or teacher of religion. No money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary; nor shall property belonging to the state be appropriated for any such purpose").

Minn. Const, art. I, [section] 16 ("[N]or shall any man be compelled to attend, erect or support any place of worship, or to maintain any religious or ecclesiastical ministry, against his consent; ... or any preference be given by law to any religious establishment or mode of worship ... nor shall any money be drawn from the treasury for the benefit of any religious societies ...

Miss. Const, art. Ill, [section] 18 ("[N]o preference shall be given by law to any religious sect or mode of worship....").

Mo. Const, art. I, [section] 6 ("That no person can be compelled to erect, support or attend any place or system of worship, or to maintain or support any priest, minister, preacher or teacher of any sect, church, creed or denomination of religion...."); id. art. I, [section] 7 ("That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship."); id. art. IX, [section] 8 ("Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything in aid of any religious creed, church or sectarian purpose, ... nor shall any grant or donation of personal property or real estate ever be made by the state, or any county, city, town, or other municipal corporation, for any religious creed, church, or sectarian purpose whatever.").

Mont. Const, art. II, [section] 5 ("The state shall make no law respecting an establishment of religion ..."); id. art. X, [section] 6(1) ("The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose...."); id. art. X, [section] 7 ("Attendance shall not be required at any religious service.").

Neb. Const, art. I, [section] 4 ("No person shall be compelled to attend, erect or support any place of worship against his consent, and no preference shall be given by law to any religious society....").

Nev. Const, art. XI, [section] 10 ("No public funds of any kind or character whatever, State, County or Municipal, shall be used for sectarian purpose.").

N.H. Const, pt. 1, art. VI ("And every person, denomination or sect shall be equally under the protection of the law; and no subordination of any one sect, denomination or persuasion to another shall ever be established.").

N.J. Const, art. I [paragraph] 3-4 ("No person shall ... under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; nor shall any person be obliged to pay tithes, taxes, or other rates for building or repairing any church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right or has deliberately and voluntarily engaged to perform. There shall be no establishment of one religious sect in preference to another....").

N.M. Const, art. II, [section] 11 ("No person shall be required to attend any place of worship or support any religious sect or denomination; nor shall any preference be given by law to any religious denomination or mode of worship."); id. art. XXI, [section] 1 ("Perfect toleration of religious sentiment shall be secured, and no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.").

New York (none).

North Carolina (none).

North Dakota (none).

Ohio Const, art. I, [section] 7 ("No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society....").

Okla. Const, art. II, [section] 5 ("No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.").

Or. Const, art. I, [section] 5 ("No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution, nor shall any money be appropriated for the payment of any religeous (sic) services in either house of the Legislative Assembly.").

Pa. Const, art. I, [section] 3 ("[N]o man can of right be compelled to attend, erect or support any place of worship or to maintain any ministry against his consent; ... and no preference shall ever be given by law to any religious establishments or modes of worship."); id. art. Ill, [section] 29 ("No appropriation shall be made for charitable, educational or benevolent purposes to ... any denominational and sectarian institution, corporation or association....").

R.I. Const, art. I, [section] 3 ("[N]o person shall be compelled to frequent or to support any religious worship, place, or ministry whatever, except in fulfillment of such person's voluntary contract....").

S. C. Const, art. I, [section] 2 ("The General Assembly shall make no law respecting an establishment of religion....").

S.D. Const, art. VI, [section] 3 ("No person shall be compelled to attend or support any ministry or place of worship against his consent nor shall any preference be given by law to any religious establishment or mode of worship. No money or property of the state shall be given or appropriated for the benefit of any sectarian or religious society or institution.").

Tenn. Const, art. I, [section] 3. ("[N]o man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; ... and that no preference shall ever be given, by law, to any religious establishment or mode of worship.").

Tex. Const, art. I, [section] 6 ("No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent ... and no preference shall ever be given by law to any religious society or mode of worship."); id. art. I, [section] 7 ("No money shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes.").

Utah Const, art. I, [section] 4 ("The State shall make no law respecting an establishment of religion.... There shall be no union of Church and State, nor shall any church dominate the State or interfere with its functions. No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.").

Vt. Const, ch. I, art. 3. ("[N]o person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience....").

Va. Const, art. I, [section] 16 ("No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.... And the General Assembly shall not ... confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry...."); id. art. IV, [section] 16 ("The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society. Nor shall the General Assembly make any like appropriation to any charitable institution which is not owned or controlled by the Commonwealth....").

Wash. Const, art. I, [section] 11 ("No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment....").

W.Va. Const, art. Ill, [section] 15 ("No man shall be compelled to frequent or support any religious worship, place or ministry whatsoever ... and the Legislature shall not ... confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this state, to levy on themselves, or others, any tax for the erection or repair of any house for public worship, or for the support of any church or ministry....").

Wis. Const, art. I, [section] 18 ("[N]or shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall ... any preference be given by law to any religious establishments or modes of worship; nor shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.").

Wy. Const, art. I, [section] 19 ("No money of the state shall ever be given or appropriated to any sectarian or religious society or institution.").

APPENDIX 5

State Sectarian Education Clauses

Ala. Const, art. XIV, [section] 263 ("No money raised for the support of the public schools shall be appropriated to or used for the support of any sectarian or denominational school.").

Alaska. Const, art. VII, [section] 1 ("The legislature shall by general law establish and maintain a system of public schools open to all children of the State, and may provide for other public educational institutions. Schools and institutions so established shall be free from sectarian control. No money shall be paid from public funds for the direct benefit of any religious or other private educational institution.").

Ariz. Const, art. XI, [section] 7 ("No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution...."); id. art. IX, [section] 10 ("No tax shall be laid or appropriation of public money made in aid of any ... private or sectarian school...."); id. art. XX, [paragraph] 7 ("Provisions shall be made by law for the establishment and maintenance of a system of public schools which shall be open to all the children of the state and be free from sectarian control....").

Ark. Const, art. XIV, [section] 2 ("No money or property belonging to the public school fund, or to this State for the benefit of schools or universities, shall ever be used for any other than for the respective purposes to which it belongs.").

Cal. Const, art. IX, [section] 8 ("No public money shall ever be appropriated for the support of any sectarian or denominational school ... nor shall any sectarian or denominational doctrine be taught, or instruction thereon be permitted, directly or indirectly, in any of

the common schools of this State." (See similarly id. art. XVI, [section] 5); id. art. IX, [section] 9(f) ("The [University of California] shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs....").

Colo. Const, art. IX, [section] 7 ("Neither the general assembly, nor any county, city, town, township, school district or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything in aid of any church or sectarian society, or for any sectarian purpose, or to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church or sectarian denomination whatsoever; nor shall any grant or donation of land, money or other personal property, ever be made by the state, or any such public corporation to any church, or for any sectarian purpose."); id. art. IX, [section] 8 ("[N]o teacher or student of any [public educational] institution shall ever be required to attend or participate in any religious service whatsoever. No sectarian tenets or doctrines shall ever be taught in the public school....").

Conn. Const, art. VIII, [section] 4 ("[N]o law shall ever be made, authorizing [the school] fund to be diverted to any other use than the encouragement and support of public schools, among the several school societies, as justice and equity shall require.").

Del. Const, art. X, [section] 3 ("No portion of any fund now existing, or which may hereafter be appropriated, or raised by tax, for educational purposes, shall be appropriated to, or used by, or in aid of any sectarian, church or denominational school....").

Fla. Const, art. IX, [section] 6 ("The income derived from the state school fund shall, and the principal of the fund may, be appropriated, but only to the support and maintenance of free public schools.").

Ga. (none).

Haw. Const, art. X, [section] 1 ("The State shall provide for the establishment, support and control of a statewide system of public schools free from sectarian control.... [P]ublic funds [shall not] be appropriated for the support or benefit of any sectarian or private educational institution.").

Idaho Const, art. IX, [section] 5 ("Neither the legislature nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation, or pay from any public fund or moneys whatever, anything ... to help support or sustain any school, academy, seminary, college, university or other literary or scientific institution, controlled by any church, sectarian or religious denomination whatsoever...."); id. art. IX, [section] 6 ("[N]o teacher or student of any [public educational] institution shall ever be required to attend or participate in any religious service whatever. No sectarian or religious tenets or doctrines shall ever be taught in the public schools.... No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.").

Ill. Const, art. X, [section] 3 ("Neither the General Assembly nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything ... to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution, controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property ever be made by the State, or any such public corporation, to any church, or for any sectarian purpose.").

Ind. Const, art. I, [section] 6 ("No money shall be drawn from the treasury, for the benefit of any religious or theological institution."); id. art. VIII, [section] 3 ("the income [of the Common School fund] shall be inviolably appropriated to the support of Common Schools, and to no other purpose whatever.").

Iowa (none).

Kan. Const, art. VI, [section] 6(c) ("No religious sect or sects shall control any part of the public educational funds.").

Ky. Const. Bill of Rights [section] 5 ("[N]or shall any man be compelled to send his child to any school to which he may be conscientiously opposed"); id. Education, [section] 189 ("No portion of any fund or tax now existing, or that may hereafter be raised or levied for educational purposes, shall be appropriated to, or used by, or in aid of, any church, sectarian or denominational school.").

La. (none).

Me. (none).

Md. (none).

Mass. Const, amend. XVIII, [section] 2 ("No grant, appropriation or use of public money or property or loan of credit shall be made or authorized by the commonwealth or any political subdivision thereof for the purpose of founding, maintaining or aiding any infirmary, hospital, institution, primary or secondary school, or charitable or religious undertaking which is not publicly owned and under the exclusive control, order and supervision of public officers or public agents authorized by the commonwealth or federal authority or both....").

Mich. Const, art. VIII, [section] 1 ("Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."); id. art. VIII, [section] 2 ("No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school. No payment, credit, tax benefit, exemption or deductions, tuition voucher, subsidy, grant or loan of public monies or property shall be provided, directly or indirectly, to support the attendance of any student or the employment of any person at any such nonpublic school or at any location or institution where instruction is offered in whole or in part to such nonpublic school students. The legislature may provide for the transportation of students to and from any school.").

Minn. Const, art. I, [section] 16 ("[N]or shall any money be drawn from the treasury for the benefit of any ... religious or theological seminaries"); id. art. XIII, [section] 2 ("In no case shall any public money or property be appropriated or used for the support of schools wherein the distinctive doctrines, creeds or tenets of any particular Christian or other religious sect are promulgated or taught.").

Miss. Const, art. VIII, [section] 208 ("No religious or other sect or sects shall ever control any part of the school or other educational funds of this state; nor shall any funds be appropriated toward the support of any sectarian school....").

Mo. Const, art. IX, [section] 8 ("Neither the general assembly, nor any county, city, town, township, school district or other municipal corporation, shall ever make an appropriation or pay from any public fund whatever, anything ... to help to support or sustain any private or public school, academy, seminary, college, university, or other institution of learning controlled by any religious creed, church or sectarian denomination whatever....").

Mont. Const, art. X, [section] 6 ("(1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property ... to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination. (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education."); id. art. X, [section] 7 ("No sectarian tenets shall be advocated in any public educational institution of the state.")

Neb. Const, art. VII, [section] 11 ("Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; PROVIDED, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature. All public schools shall be free of sectarian instruction. The state shall not accept money or property to be used for sectarian purposes; PROVIDED, that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.").

Nev. Const, art. XI, [section] 2 ("The legislature shall provide for a uniform system of common schools, ... and any school district which shall allow instruction of a sectarian character therein may be deprived of its proportion of the interest of the public school fund during such neglect or infraction...."); id. art. XI, [section] 9. ("No sectarian instruction shall be imparted or tolerated in any school or University that may be established under this Constitution.").

N.H. Const, pt. 1, art. 6 ("[N]o person shall ever be compelled to pay towards the support of the schools of any sect or denomination."); id. pt. 2, art. 83 ("[N]o money raised by taxation shall ever be granted or applied for the use of the schools or institutions of any religious sect or denomination.").

N.J. (none).

N.M. Const. XII, [section] 3 ("The schools, colleges, universities and other educational institutions provided for by this constitution shall forever remain under the exclusive control of the state, and no part of the proceeds arising from the sale or disposal of any lands granted to the state by congress, or any other funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university."); id. art. XII, [section] 9 ("[N]o teacher or student of [a public] school or [educational] institution shall ever be required to attend or participate in any religious service whatsoever."); id. art. XXI, [section] 4 ("Provision shall be made for the establishment and maintenance of a system of public schools which shall be open to all the children of the state and free from sectarian control....").

New York Const, art. XI, [section] 3 ("Neither the state nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught, but the legislature may provide for the transportation of children to and from any school or institution of learning.").

N. C. Const, art. IX, [section] 1 ("Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.").

N. D. Const, art. VIII, [section] 1 ("[T]he legislative assembly shall make provision for the establishment and maintenance of a system of public schools which shall be open to all children of the state of North Dakota and free from sectarian control."); id. art. VIII, [section] 5 ("All colleges, universities, and other educational institutions, for the support of which lands have been granted to this state, or which are supported by a public tax, shall remain under the absolute and exclusive control of the state. No money raised for the support of the public schools of the state shall be appropriated to or used for the support of any sectarian school.").

Ohio Const, art. VI, [section] 2 ("[N]o religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state").

Okla. Const, art. I, [section] 5 ("Provisions shall be made for the establishment and maintenance of a system of public schools, which shall be open to all the children of the state and free from sectarian control...."); art. XI, [section] 5 ("[N]o part of the proceeds arising from the sale or disposal of any lands granted for educational purposes, or the income or rentals thereof, shall be used for the support of any religious or sectarian school, college, or university....").

Or. Const, art. I, [section] 5 ("No money shall be drawn from the Treasury for the benefit of any religeous (sic), or theological institution....").

Pa. Const, art. Ill, [section] 15 ("No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school."); id. art. III, [section] 29 ("[Appropriations may be made ... in the form of scholarship grants or loans for higher educational purposes to residents of the Commonwealth enrolled in institutions of higher learning except that no scholarship, grants or loans for higher educational purposes shall be given to persons enrolled in a theological seminary or school of theology.").

R. I. (none).

S. C. Const, art. XI, [section] 4 ("No money shall be paid from public funds nor shall the credit of the State or any of its political subdivisions be used for the direct benefit of any religious or other private educational institution.").

S.D. Const, art. VIII, [section] 16 ("No appropriation of lands, money, or other property or credits to aid any sectarian school shall ever be made by the state, or any county or municipality within the state, nor shall the state or any county or municipality within the state accept any grant, conveyance, gift, or bequest of lands, money, or other property to be used for sectarian purposes, and no sectarian instruction shall be allowed in any school or institution aided or supported by the state."); id. art. VIII, [section] 20 ("Notwithstanding the provisions of section 3, Article VI and section 16, Article VIII, the Legislature may authorize the loaning of nonsectarian textbooks to all children of school age."); art. XXII, [section] 4 ("[P]rovision[s] shall be made for the establishment and maintenance of systems of public schools, which shall be open to all the children of this state, and free from sectarian control.").

Tenn. (none)

Tex. Const, art. VII, [section] 5(c) ("The permanent school fund and the available school fund may not be appropriated to or used for the support of any sectarian school").

Utah Const, art. Ill, [section] 4 ("The Legislature shall make laws for the establishment and maintenance of a system of public schools, which shall be open to all the children of the State and be free from sectarian control."); id. art. X, [section] 1 (same); id., art. X, [section] 9 ("Neither the state of Utah nor its political subdivisions may make any appropriation for the direct support of any school or educational institution controlled by any religious organization.").

Vt. (none).

Va. Const, art. VIII, [section] 10 ("No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof [with exceptions for "nonsectarian" schools]."); id. art. VIII, [section] 11 ("The General Assembly may provide for loans to, and grants to or on behalf of, students attending nonprofit institutions of higher education in the Commonwealth whose primary purpose is to provide collegiate or graduate education and not to provide religious training or theological education.").

Wash. Const, art. IX, [section] 4 ("All schools maintained or supported wholly or in part by the public funds shall be forever free from sectarian control or influence."); id. art. XXVI, [section] 4 ("Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control which shall be open to all the children of said state.").

W.Va. Const, art. III, [section] 15(a) ("Public schools shall provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation or prayer. No student of a public school may be denied the right to personal and private contemplation, meditation or prayer nor shall any student be required or encouraged to engage in any given contemplation, meditation or prayer as a part of the school curriculum.").

Wis. Const, art. I, [section] 23 ("Nothing in this constitution shall prohibit the legislature from providing for the safety and welfare of children by providing for the transportation of children to and from any parochial or private school or institution of learning."); id. art. I, [section] 24 ("Nothing in this constitution shall prohibit the legislature from authorizing, by law, the use of public school buildings by civic, religious or charitable organizations during nonschool hours upon payment by the organization to the school district of reasonable compensation for such use."); id. art. X, [section] 3 ("The legislature shall provide by law for the establishment of district schools ... and such schools shall be free and without charge for tuition to all children between the ages of 4 and 20 years; and no sectarian instruction shall be allowed therein; but the legislature by law may, for the purpose of religious instruction outside the district schools, authorize the release of students during regular school hours."); id. art. X, [section] 6 ("Provision shall be made by law for the establishment of a state university, ... and no sectarian instruction shall be allowed in such university.").

Wy. Const, art. III, [section] 36 ("No appropriation shall be made for charitable, industrial, educational or benevolent purposes to any person, corporation or community not under the absolute control of the state, nor to any denominational or sectarian institution or association."); id. art. VII, [section] 8 ("[N]or shall any portion of any public school fund ever be used to support or assist ... any school, academy, seminary, college or other institution of learning controlled by any church or sectarian organization or religious denomination whatsoever."); id. art. VII, [section] 12 ("No sectarian instruction, qualifications or tests shall be imparted, exacted, applied or in any manner tolerated in the schools of any grade or character controlled by the state, nor shall attendance be required at any religious service therein, nor shall any sectarian tenets or doctrines be taught or favored in any public school or institution that may be established under this constitution."); id. art. XXI, [section] 28 ("The legislature shall make laws for the establishment and maintenance of systems of public schools which shall be open to all the children of the state and free from sectarian control.").

(1) U.S. Const, amend. I (emphasis added).

(2) Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947).

(3) Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000) (prayer at football games); Lee v. Weisman, 505 U.S. 577 (1992) (graduation prayer); Wallace v. Jaffree, 472 U.S. 38 (1985) (moment of silence); Marsh v. Chambers, 463 U.S. 783 (1983) (legislative prayer); Engel v. Vitale, 370 U.S. 421 (1962) (classroom prayer).

(4) Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).

(5) Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (public park); McCreary Cnty. v. ACLU of Ky., 545 U.S. 844 (2005) (county courthouse); Van Orden v. Perry, 545 U.S. 677 (2005) (state capitol lawn); Stone v. Graham, 449 U.S. 39 (1980) (public schools).

(6) Salazar v. Buono, 559 U.S. 700 (2010) (veteran's memorial cross on federal land); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ("under God" in pledge of allegiance); Locke v. Davey, 540 U.S. 712 (2004) (college scholarships); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (tax exemption for religious publications); Corp. of Presiding Bishop v. Amos, 483 U.S. 327 (1987) (religious exemption from employment discrimination law); Edwards v. Aguillard, 482 U.S. 578 (1987) (teaching both evolution and creation within public schools' science curriculum); Gillette v. United States, 401 U.S. 437 (1971) (religious exemption from military service); Walz v. Tax Comm'n, 397 U.S. 664 (1970) (property tax exemption); Epperson v. Ark., 393 U.S. 97 (1968) (no teaching of human evolution in public schools); McGowan v. Md., 366 U.S. 420 (1961) (Sunday closing).

(7) Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (school voucher program); Mitchell v. Helms, 530 U.S. 793 (2000) (materials and equipment), Agostini v. Felton, 521 U.S. 203 (1997) (remedial education); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993) (sign language interpreter); Witters v. Wash. Dept, of Services for Blind, 474 U.S. 481 (1986) (scholarship aid for handicapped students); Sch. Dist. of Grand Rapids v. Ball, 473 U.S. 373 (1985) (shared time program: public school teachers released to teach secular subjects in private schools); Mueller v. Allen, 463 U.S. 388 (1983) (tax deduction for education expenses); Comm, for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973) (facilities maintenance, tuition reimbursement, and tax credits); Lemon v. Kurtzman, 403 U.S. 602 (1971) (teachers' salaries and educational materials); Bd. of Educ. v. Allen, 392 U.S. 236 (1968) (textbooks); Zorach v. Clauson, 343 U.S. 306 (1952) (released time program: public school students released to receive religious education in private schools); McCollum v. Bd. of Educ., 333 U.S. 203 (1948) (released time program: private school teachers provide religious education in public schools); Everson v. Bd. of Educ. of Ewing, 330 U.S. 1 (1947) (bus transportation).

(8) Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (creche inside courthouse and Chanukah menorah outside government building); Lynch v. Donnelly, 465 U.S. 668 (1984) (nativity scene).

(9) Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) (denying taxpayer standing to challenge tuition tax credits); Hein v. Freedom from Religion Found., 551 U.S. 587 (2007) (limiting taxpayer standing to express congressional allocations); Bowen v. Kendrick, 487 U.S. 589 (1988) (allowing taxpayer standing to challenge federal grants to religious organizations for pregnancy counseling); Flast v. Cohen, 392 U.S. 83 (1968) (original case finding taxpayer standing to police the Establishment Clause).

(10) Good News Club v. Milford Cent. Sch., 533 U.S. 98 (2001) (after-hours use of school facilities); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (state university provision of printing services to student publications); Lamb's Chapel v. Ctr. Moriches Union Sch. Dist., 508 U.S. 384 (1993) (after-hours use of school facilities); Widmar v. Vincent, 454 U.S. 263 (1981) (equal access by recognized student groups to university facilities).

(11) Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

(12) Lynch v. Donnelly, 465 U.S. 668, 687-95 (1984) (O'Connor, J., concurring).

(13) Lee v. Weisman, 505 U.S. 577, 631-46 (1992) (Scalia, J., dissenting); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 18-34 (2004) (Thomas, J., concurring in the judgment).

(14) Federal law creates a cause of action for citizens whose civil rights have been violated under color of state law. 42 U.S.C. [section] 1983. Prevailing plaintiffs are entitled to attorney fees as a part of the costs of suit. 42 U.S.C. [section] 1988(b). If the cause of action disappears, so will the associated fees. The Public Expression of Religion Act ("PERA"), introduced in the 109th and 110th Congresses, sought to exempt Establishment Clause suits from the attorney fees incentive provisions of [section] 1988. See Kristen Morgan, The Public Expression of Religion Act: Promoting Equality in Establishment Clause Jurisprudence, 57 Cath. U. L. Rev. 543 (2008). See also Patrick M. Garry, A Congressional Attempt to Alleviate the Uncertainty of the Court's Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 Cumb. L. Rev. 1 (2006).

(15) Barron v. Baltimore, 32 U.S. 243, 250 (1833).

(16) U.S. Const, art. I, [section] 10 ("No state shall....").

(17) Barron, 32 U.S. at 250. See also Permoli v. First Municipality, 44 U.S. 589, 609 (1845) ("The Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the state constitutions and laws: nor is there any inhibition imposed by the Constitution of the United States in this respect on the states.").

(18) U.S. Const, amends. XIII, XIV, & XV.

(19) U.S. Const, amend. XIV, [section] 1.

(20) Cong. Globe, 39th Cong., 1st Sess. 1089-90 (1866).

(21) Cong. Globe, 42nd Cong., Spec. Sess. App. 84 (1871) (citation omitted).

(22) Id.

(23) Cong. Globe, 39th Cong., 1st Sess. 2765 (1866).

(24) Id. at 2766.

(25) The Supreme Court has accomplished the same result through serial incorporation of the individual amendments into the Due Process Clause. The history of this development and the subsequent downgrading of the Privileges or Immunities Clause is beyond the scope of this paper.

(26) See Christopher A. Boyko, A New Originalism: Adoption of a Grammatical Interpretive Approach to Establishment Clause Jurisprudence after District of Columbia v. Heller, 57 Clev. St. L. Rev. 703, 709 (2009) (pointing out that, grammatically, the "Establishment Clause" is really a phrase within the larger religion clause).

(27) U.S. Const, amend. I.

(28) For a sentence diagram of the First Amendment, see http://www.german-latinenglish.com/diagramamend 1.htm.

(29) "Prohibit" means to forbid. Noah Webster, Amer. Dict. of the Eng. Language (1828) [hereinafter Webster's Dict.], available at http://1828.mshaffer.com.

(30) The modifier "free" is important. A law that allows the exercise of religion may still prohibit "the free exercise thereof." "Free" operates like "curtilage" in Fourth Amend ment cases, putting a buffer zone around the core right. See Oliver v. United States, 466 U.S. 170, 180 (1984) ("[T]he land immediately surrounding and associated with the home ... warrants the Fourth Amendment protections that attach to the home."). Using another analogy, a law that does not prohibit dancing outright, may still prohibit certain forms of "free dancing." See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (upholding a minimum coverage requirement).

(31) "Abridge" means to lessen or diminish. Webster's Dict., supra note 29.

(32) A counterargument is that the First Amendment merely illustrates powers denied to Congress. Because the Constitution ceded enumerated powers only, and said nothing about power over speech, press, religion, or assembly, Congress has no authority in these areas at all. See The Federalist No. 84 (Alexander Hamilton) ("For why declare that things shall not be done when there is no power to do?").

(33) U.S. Const, amend. I.

(34) "Respecting" means "regarding; having regard to; relating to." Webster's Dict., supra note 29. Compare Allegheny Cnty. v. Greater Pittsburgh ACLU, 492 U.S. 573, 649 (1989) (Stevens, J., concurring in part and dissenting in part) ("'[Respecting' means concerning, or with reference to.").

(35) "Nor is there anything in the First Amendment that limits congressional power to promote speech, press, petition, and assembly against state repression." Akhil Reed Amar, The Bill of Rights: Creation & Reconstruction 41 (1998).

(36) The Supreme Court considers the word "respecting" to enlarge the zone of prohibition. "A law may be one 'respecting' the forbidden objective while falling short of its total realization ... in the sense of being a step that could lead to such establishment and hence offend the First Amendment." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Justice Stevens suggests, somewhat implausibly, that the Framers also meant to prohibit laws that show respect to religion. "But it also means with respect--that is, 'reverence,' 'good will,' 'regard'--to. Taking into account this richer meaning, the Establishment Clause, in banning laws that concern religion, especially prohibits those that pay homage to religion." Allegheny Cnty., 492 U.S. at 649 (Stevens, J., concurring in part and dissenting in part). James Madison at one time stated: "The Constitution of the U.S. forbids everything like an establishment of a national religion." Elizabeth Fleet, Madison's "Detached Memoranda," 3 Wm. & Mary Q. 534, 558 (1946).

(37) [I]n the early republic ... the Establishment Clause acted to bar the federal government from interfering with how the states dealt with the prickly matter of religion." Carl H. Esbeck, Dissent and Disestablishment: The Church-State Settlement in the Early American Republic, 2004 B.Y.U.L. Rev. 1385, 1590 [hereinafter Dissent].

(38) The Religion Clause does not prohibit legislation about religion per se, but only laws about an establishment of religion or that go so far as to prohibit free exercise. See Cutter v. Wilkinson, 544 U.S. 709, 728 (2005) (Thomas, J., concurring) ("The Clause prohibits Congress from enacting legislation respecting an establishment of religion; it does not prohibit Congress from enacting legislation respecting religion or taking cognizance of religion.") (internal quotation marks and citation omitted). See also Philip Hamburger, Separation of Church and State 107 (2004) (The Establishment Clause "did not forbid all legislation respecting religion."). Absent a positive enumerated power, however, Congress could not touch the subject at all. Fear that the Necessary and Proper Clause might be read to permit such a power contributed to the demand for a Bill of Rights. See I Annals of Cong. 758 (1789) (James Madison).

(39) "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X.

(40) See United States v. Darby, 312 U. S. 100, 124 (1941) ("truism"); New York v. United States, 505 U.S. 144, 157 (1992) ("tautology").

(41) "Being an instrument of limited and enumerated powers, it follows irresistibly, that what is not conferred, is withheld, and belongs to the state authorities." 3 Joseph Story, Commentaries on the Constitution of the United States 752 (1833), quoted in New York v. United States, 505 U.S. at 156.

(42) For that reason, an otherwise uninjured taxpayer may lack federal standing to pursue an Establishment Clause claim. See Ariz. Christian Sch. Tuition Org. v. Winn, 131 S.Ct. 1436 (2011).

(43) A leading religion clause scholar, surveying English and early American history, de scribes an establishment of religion as follows: The government determines doctrine, appoints ministers, provides financial support, requires mandatory attendance, prohibits attendance elsewhere, and limits political participation to members of the state church. Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105 (2003). The first four characteristics also describe public education, an almost universally-accepted establishment. See Amar, supra note 35, at 44 ("From one perspective, the twentieth-century state school is designed to serve a function very similar to that of the eighteenth-century church[.]"). Private schools and home schooling are a form of educational "free exercise" that co-exists with the predominant state establishment.

(44) See Arthur E. Sutherland, Jr., Establishment According to Engel, 76 Harv L. Rev. 25, 35 (1962) (noting the Court's sensitivity to "a chemical trace of religious content" in a school prayer case).

(45) McConnell, supra note 43, at 2109. See also Abington Sch. Dist. v. Schempp, 374 U.S. 203, 309-310 (1963) (Stewart, J., dissenting) ("[T]he Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments.").

(46) Vincent Phillip Munoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 J. Const. L. 585, 631 (2006).

(47) Id. The incorporation doctrine pulls many rabbits of "fundamental rights" out of the "liberty" hat--a single word in the Due Process Clause of the Fourteenth Amendment. These personal rights are those "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325 (1937). Although the Free Exercise Clause arguably protects personal rights, the Establishment Clause merely marks a jurisdictional boundary between federal and state power.

(48) Letter from Thomas Jefferson to Rev. Samuel Miller (Jan. 23, 1808), 11 The Works of Thomas Jefferson 7 (Paul Leicester Ford ed., 1905).

(49) Id. at 8. While Governor of Virginia, Jefferson issued a prayer proclamation and authored a law declaring public days of fasting and thanksgiving. As a founder of the University of Virginia, a state institution, he encouraged religious instruction "within, or adjacent to, the precincts of the university." David Barton, The Image and the Reality: Thomas Jefferson and the First Amendment, 17 Notre Dame J.L. Ethics & Pub. Pol'y 399,407-10(2003).

(50) Marsh v. Chambers, 463 U.S. 783, 802 (Brennan, J., dissenting) (contending that the Establishment Clause prohibits legislative prayer). Compare Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L. Rev. 1, 103 n.443 (1998) [hereinafter Structural Restraint] ("The Free Exercise Clause, as well as the four expressional Clauses in the First Amendment (speech, press, petition, and assembly) ... protect individual rights. They work only indirectly to limit the power of the sovereign state.").

(51) "As a clause expressly protecting states' rights, incorporating the Tenth against the states is logically impossible." Kurt T. Lash, The Lost Jurisprudence of the Ninth Amendment, 85 Tex. L. Rev. 597, 646 (2005).

(52) As "a specific protection of state authority ... the establishment clause most closely resembled the tenth amendment." William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DePaul L. Rev. 1191, 1201 (1990). See id. at 1206 (terming Establishment Clause incorporation "nonsensical" and "illogical"). "By what magical metamorphosis does a clause which, under the First Amendment is expressly a reservation of power to the states, become a denial of that very power by virtue of the Fourteenth Amendment?" Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1 Cath. Lawyer 301, 308 (1955). See also Daniel O. Conkle, The Establishment Clause as a Federalism Mandate, 82 Nw. U. L. Rev. 1113, 1141 (1988) ("To 'incorporate' this policy of states' rights against the states would be utter nonsense ... akin to an incorporation of the Tenth Amendment for application against the States."); Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992) "To the extent the Establishment Clause is similar to the Tenth Amendment, its incorporation is similarly incoherent.").

(53) "[I]t is not without irony that a constitutional provision evidently designed to leave the States free to go their own way should now have become a restriction upon their autonomy." Abington Sch. Dist, 374 U.S. at 310 (Stewart, J., dissenting). "Congress had no more authority in the states to disestablish than to establish.... As a more pure federalism provision, then, the establishment clause seems considerably more difficult to incorporate against the states." Amar, supra note 35, at 41. "To get the establishment clause incorporated into [the Fourteenth Amendment] is quite a constructional wrench." Sutherland, supra note 44, at 41.

(54) Zelman v. Simmons-Harris, 536 U.S. 639, 678 (2002) (Thomas, J., concurring) (observing that incorporated rights "should advance, not constrain, individual liberty"). He was the first Justice since Everson to consider disincorporation. See Lee v. Weisman, 505 U.S. 577, 620 n.4 (1992) (Souter, J., concurring) ("Since [Everson], not one Member of this Court has proposed disincorporating the [Establishment] Clause.").

(55) Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45 (2004) (Thomas, J., concurring in the judgment).

(56) Id. at 49, 51. See also Utah Highway Patrol Ass'n v. Am. Atheists, Inc., 132 S. Ct. 12, 21 (2011) (Thomas, J., dissenting from denial of certiorari) (noting "my view that the Establishment Clause restrains only the Federal Government"); Cutter v. Wilkinson, 544 U.S. 709, 728 n.3 (2005) (Thomas, J., concurring) ("The text and history of the Clause may well support the view that the Clause is not incorporated against the States precisely because the Clause shielded state establishments from congressional interference."); Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) ("If the Establishment Clause does not restrain the States, then it has no application ... where only state action is at issue."). For a scholarly article contending that the Establishment Clause had taken on "a different meaning upon incorporation," see Kurt T. Lash, 77ie Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L. J. 1085 (1995) (arguing that by 1868 the Establishment Clause was understood as a mere annex to the Free Exercise Clause, and thus reasonably construed as an individual right). See similarly Amar, supra note 35, at 252-54; Frederick Mark Gedicks, Incorporation of the Establishment Clause Against the States: A Logical, Textual, and Historical Account, 88 Ind. L.J. 669 (2013).

(57) Van Orden, 545 U.S. at 730 n.32 (Stevens, J., dissenting).

(58) Stare decisis means "To abide by, or adhere to, decided cases." Black's Law Dictionary (4th ed. 1968).

(59) Payne v. Tennessee, 501 U.S. 808, 828 (1991) (internal citations and quotation marks omitted). Between 1971 and 1991, the Court overruled in whole or in part thirty-three of its constitutional decisions. Id. & n. 1.

(60) Vieth v. Jubelirer, 541 U.S. 267, 306 (2004) (citation and internal quotation marks omitted).

(61) See Jonathan P. Brose, In Birmingham They Love the Governor: Why the Fourteenth Amendment Does Not Incorporate the Establishment Clause, 24 Ohio N.U. L. Rev. 1 1729 (1998) (quoting many Reconstruction-Era Congressmen for the proposition that the Privileges or Immunities Clause included personal free exercise rights). See also Abington Sch. Dist. v. Schempp, 374 U. S. 203, 257 (1963) (Brennan, J., concurring) ("[T]he Fourteenth Amendment's protection of the free exercise of religion can hardly be questioned[.]"). Arguing that "the State Governments are as liable to attack the invaluable privileges as the General Government is," James Madison proposed to amend the Constitution to provide that "no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases." 1 Annals of Cong. 452 (1789). These "invaluable privileges," as Madison termed them, did not include a proposed ban on state establishments. Id. at 458. Like the 39th Congress, seventy-five years later, Madison did not consider a ban on state establishments to be a personal right of citizens.

(62) See Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1485 (1990) (noting that "the free exercise clause at the federal level was itself modeled on free exercise provisions in various state constitutions"); John K. Wilson, Religion under the State Constitutions, 1776-1800, 32 J. Church & St. 753 (1990).

(63) Only one Congressman has been cited on this point. See 2 CONG. Rf.C. app. 242 (1874) (statement of Sen. Norwood) (stating that the Fourteenth Amendment prevented the states from establishing a particular religion). The more common view is that regulation of churches and public schools remained with the states. See Cong. Globe, 42nd Cong., 2nd Sess. app. 41 (1872) (statement of Sen. Vickers); Brose, supra note 61, at 26-28 (quoting 2 Cong. Rec. 420 (1874) (statement of Rep. Herndon)).

(64) See Lietzau, supra note 52. See also Town of Greece, N.Y. v. Galloway, 134 S. Ct. 1811, 1836 (2014) (Thomas, J., concurring in part and concurring in the judgment) (noting that "[t]he Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States through the Fourteenth Amendment").

(65) The last establishment disappeared in 1833 when Massachusetts amended its constitution to disestablish the Congregationalist Church. See generally John D. Cushing, Notes on Disestablishment in Massachusetts, 1780-1833, 26 Wm. & Mary Q. 169 (1969).

(66) Justice Black, referring to incorporation of the Free Exercise Clause, stated: "There is every reason to give the same application and broad interpretation to the 'establishment of religion' clause." Everson v. Bd. of Educ. of Ewing, 330 U.S. 1, 15, 29 n.3 (1947). But the reasons were never given. Converting a hands-off states' rights clause into plenary national oversight of all government-tinged religious practices was "a novation, simultaneously aggressive and bold." Esbeck, Dissent, supra note 37, at 1592. "Without serious discussion, the Court simply asserted in Everson that the Establishment Clause applied to the states because the rest of the First Amendment so applied." Ira C. Lupu, Federalism and Faith Redux, 33 Harv. J.L. & Pub. Pol'Y 935, 937 (2010). See also Town of Greece, 134 S. Ct. at 1837 n. 1 (Thomas, J., concurring in part and concurring in the judgment) ("noting that "in the space of a single paragraph and a nonresponsive string citation, the Everson court glibly effected a sea change in constitutional law"); Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 Mich L. Rev. 477, 481 (1991) (noting "how little intellectual curiosity the Members of the Court demonstrated in the challenge presented by the task of adapting for application to the states, language that had long served to protect the states against the federal government"); Esbeck, Structural Restraint, supra note 50 at 25 (noting that the Court incorporated the Establishment Clause "without debate or even seeming appreciation of what it was doing"); Philip B. Kurland, The Irrelevance of the Constitution: The Religion Clauses of the First Amendment and the Supreme Court, 24 Vill. L. Rev. 3, 10 (1979) ("The transmogrification occurred solely at the whim of the Court.... without argument--certainly without cogent argument...."). Neither party had raised the First Amendment issue in its briefs. See Everson, 330 U.S. at 29 n.3 (Rutledge, J., dissenting) ("The briefs did not raise the First Amendment issue.").

(67) See David E. Steinberg, The Myth of Church-State Separation 3 (2011), 59 Clev. St. L. Rev. 623, 625 (2011) ("The framers enacted the Establishment Clause as a shield, to protect state religious regulation from federal interference. However, the Supreme Court has transformed the Establishment Clause into a sword, which gives federal judges the power to meddle in areas traditionally reserved to the states.").

(68) See Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State 69 (2002) ("Jefferson's 'wall,' like the First Amendment, affirmed the policy of federalism ... that all governmental authority over religious matters was allocated to the states.").

(69) "No state shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools ... [shall] be divided between religious sects or denominations." 4 Cong. Rec. 205 (1875).

(70) 4 Cong. Rec. 5191 (1876).

(71) 4 Cong. Rec. 5595 (1876).

(72) See Steven K. Green, The Blaine Amendment Reconsidered, 36 Am. J. Legal Hist. 38, 49-50, 53-54 (1992).

(73) Philip Hamburger, Privileges or Immunities, 105 Nw. U. L. Rev. 61, 142 (2011). The First Amendment, Blaine wrote to a supporter, left the states free pursuant to the Tenth Amendment to "do as they pleased in regard to an 'establishment of religion.'" Establishments had lingered "long after the adoption of the Federal Constitution, and, although there may be no positive danger of its revival in the future, the possibility of it should not be permitted." Letter of James G. Blaine (Oct. 20, 1875), in James P. Boyd, Life and Public Services of Hon. James G. Blaine 352-53 (1893).

(74) Hamburger, supra note 73, at 139.

(75) Id.

(76) Id. at 138.

(77) Id.

(78) See 4 CONG. Rec. 5585 (1876) (Senator Oliver Morton made the only reference to the Fourteenth Amendment in the Blaine Amendment debate. He stated: "The fourteenth and fifteenth amendments ... have, I fear, been very much impaired by construction."); Amar, supra note 35, at 254 n.* (hypothesizing that the judicial undermining of the Privileges or Immunities Clause made an attempt at reinvigoration necessary and the Blaine Amendment was an attempt to restore the original 1868 meaning through express language); Bryan H. Wildenthal, The Lost Compromise: Reassessing the Early Understanding in Court and Congress on Incorporation of the Bill of Rights in the Fourteenth Amendment, 61 Ohio St. L.J. 1051, 1129 (2000) (noting "a curious silence regarding the Fourteenth Amendment during the Blaine Amendment debates"); Lash, supra note 56, at 1145-50 (speculating that the proposal to incorporate the entire Religion Clause indicates that the Establishment Clause had become assimilated to the Free Exercise Clause--transformed into a personal right).

(79) See United States v. Price, 361 U.S. 304, 313 (1960) (noting that post-hoc legislative history is not favored because "[t]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one"). See also Green, supra note 72, at 64 (observing that "the practice of deriving the legislative intent behind one enactment from a later legislative action or inaction is faulty at best").

(80) See 4 Cong. Rec. 5561 (1876) (Frederick Frelinghuysen, Senate sponsor of the Blaine Amendment, stating that it "prohibits the States, for the first time, from the establishment of religion.").

(81) See Van Orden, 545 U.S. at 729 (Stevens, J., dissenting) (noting that an unincorporated Establishment Clause "limits only the federal establishment of a national religion.") (internal quotation marks and citation omitted).

(82) See, e.g., Salazar v. Buono, 559 U.S. 700 (2010) (hearing Establishment Clause challenge to transfer of federal land underlying memorial cross to private party); Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) (hearing Establishment Clause challenge to religious elements in presidential inauguration ceremony).

(83) The majority of religion cases heard by the Court represent challenges to state actions. From 1970 to 2005, the Supreme Court decided seventy-five religion clause cases. Twenty-one (28%) involved federal law. For the complete list of cases, see Appendix 1 to Mark David Hall, Jeffersonian Walls and Madisonian Lines: The Supreme Court's Use of History in Religion Clause Cases, 85 Or. L. Rev. 563 (2006) (selecting "cases in which at least four Justices considered the Free Exercise or Establishment Clauses (or both) to raise substantial issues"). Appendix 1 ("Federal Religion Clause Cases") lists the twenty-one federal cases. These would be unaffected by disincorporation of the Establishment Clause.

(84) See Kyle Duncan, Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493, 583 (2003) ("Whatever distinctive church-state policies a state wants to pursue will always be limited by the demands of free exercise.").

(85) "I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring in the judgment).

(86) Id. at 54 n.5.

(87) Emp't Div. v. Smith, 494 U.S. 872, 881 (1990).

(88) Id. at 881-82. For a survey of lower court attempts to define "hybrid rights," see Note, The Best of a Bad Lot: Compromise and Hybrid Religious Exemptions, 123 Harv. L. Rev. 1494, 1498-1508 (2010).

(89) Id. at 884.

(90) See, e.g., Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 524 (1993) ("[T]he principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs."); Axson-Flynn v. Johnson, 356 F. 3d 1277 (10th Cir. 2004) (remanding for fact-finding on issue of whether "script adherence" requirement to utter blasphemy and vulgarities in college acting program was discriminatorily applied to religious conduct).

(91) To the twenty-one federal religion clause cases that would not be affected by disincorporation, supra note 83, one must add sixteen state law free exercise cases. See Appendix 2 ("Non-Federal Free Exercise Cases"). In total, 49% of the religion clause cases heard from 1970 to 2005 would be unaffected by disincorporation.

(92) Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 53 n.4 (2004) (Thomas, J., concurring in the judgment) See also Cutter v. Wilkinson, 544 U.S. 709, 728 n.3 (2005) (Thomas, J., concurring) (noting that "a state law that would violate the incorporated Establishment Clause might also violate the Free Exercise Clause").

(93) Alabama and Arizona are the only possible exceptions. See Appendix 3 ("State Free Exercise Clauses").

(94) Alaska, Hawaii, Iowa, Louisiana, Massachusetts, Montana, South Carolina, and Utah.

(95) "There shall be no law ... prohibiting or penalizing the free exercise [of religion]." Fla. Const, art. I, [section] 3 (emphasis added).

(96) See, e.g., Ark. Const, art. II, [section] 24 ("All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences].]"); Mass. Const, art. II ("It is the right as well as the duty of all men in society, publicly, and at stated seasons to worship the Supreme Being, the great Creator and Preserver of the universe."); Miss. Const, art. Ill, [section] 18 ("[T]he free enjoyment of all religious sentiments and the different modes of worship shall be held sacred."); N.J. Const, art. I ("No person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience].]"); North Dakota Const, art. I, [section] 3 ("The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall be forever guaranteed in this state].]"; Wash. Const, art. I, [section] 11 ("Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual].]").

(97) 494 U.S. 872 (1990).

(98) State v. Hershberger, 462 N.W.2d 393, 397 (Minn. 1990). See also State by Cooper v. French, 460 N.W.2d 2, 8-9 (Minn. 1990) (plurality) (analyzing free exercise claim under Minnesota Constitution in light of "unforeseeable changes in established first amendment law set forth in recent decisions of the United States Supreme Court"); Minn. Const, art. I, [section] 16 ("The right of every man to worship God according to the dictates of his own conscience shall never be infringed .").

(99) First Covenant Church v. Seattle, 840 P.2d 174, 186 (Wash. 1992) (quoting Wash. Const, art. I, [section] 11).

(100) Id. at 187.

(101) See, e.g., Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 280-81 (Alaska 1994) ("]W]e are not required to adopt and apply the Smith test to religious exemption cases involving the Alaska Constitution"); Attorney General v. Desilets, 636 N.E.2d 233, 236 (Mass. 1994) (adhering to the standards of pre-Smith First Amendment jurisprudence); State v. Miller, 549 N.W.2d 235 (Wis. 1996) (retaining "compelling state interest/least restrictive alternative test" for free exercise under Wisconsin Constitution).

(102) See Appendix 4 ("State Establishment Clauses"). The exceptions are New York, North Carolina, and North Dakota. North Carolina construes a portion of its free exercise clause as the equivalent of an establishment clause. See Heritage Vill. Church & Missionary Fellowship v. State, 263 S.E.2d 726, 730 n.l (N.C. 1980) ("[N]o human authority shall, in any case whatever, control or interfere with the rights of conscience.") (construing N.C. Const, art. I, [section] 13). North Dakota does the same. See State ex rel. Heitkamp v. Family Life Servs., Inc., 2000 ND 166,1 35, 616 N.W.2d 826 ("This provision affords protections similar to those provided by the Establishment Clause.") (construing N.D. Const, art. I, [section] 3).

(103) Alaska, California, Florida, Hawaii, Iowa, Louisiana, Montana, South Carolina, and Utah. Accord Mechthild Fritz, Religion in a Federal System: Diversity Versus Uniformity, 38 U. Kan. L. Rev. 39, 43 & n.24 (1989). Iowa also adds: "... nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship, or the maintenance of any minister, or ministry." Iowa Const, art. I, [section] 3.

(104) See Rethinking Incorporation, supra note 52, at 1717 ("Moreover, the state provisions governing church-state relations tend to be more detailed and specific than the First Amendment."); Fritz, supra note 103, at 42 ("In addition to the terse language of the federal religion clauses, state provisions are often more substantial and sometimes verbose.").

(105) S. Journal, 1st Cong., 1st Sess., at 72 (Sept. 7, 1789). See, e.g., Idaho Const, art. I, [section] 4 ("No person shall be required to attend or support any ministry or place of worship, religious sect or denomination, or pay tithes against his consent; nor shall any preference be given by law to any religious denomination or mode of worship.").

(106) Ala. Const, art. I, [section] 3 ("nor to pay any tithes"); Idaho Const, art. I, [section] 4 ("or pay tithes"); Iowa CONST, art. I, [section] 3 ("nor shall any person be compelled ... to pay tithes"); Mich. Const, art. I, [section] 4 ("No person shall be compelled to ... pay tithes"); N.J. Const. art. I. ("nor shall any person be obliged to pay tithes").

(107) Those banning both required attendance and support are: Alabama, Arkansas, Colorado, Delaware, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, Ohio, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Vermont, Virginia, West Virginia, Wisconsin. Connecticut bans required membership or support; Montana attendance. New Hampshire forbids compulsory support of religious schools. See Appendix 4.

(108) Alabama, Arkansas, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Pennsylvania, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin. Utah has unique language: "nor shall any church dominate the State". Utah Const, art. I, [section] 4. For specific phraseology, see Appendix 4.

(109) Arizona, Florida, Georgia, Idaho, Illinois, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nevada, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, Utah, Virginia, Washington, Wisconsin, Wyoming.

(110) I count forty-one. See Appendix 5 ("State Sectarian Education Clauses"). A specialist on the subject identifies forty. Meir Katz, The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application, 12.1 ENGAGE 111, 111 n.l (2011). See generally Mark Edward DeForrest, An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns, 26 Harv. J.L. & Pub. Pol'y 551, 576-88 (2003).

(111) Some provisions were also mandated by federal law. The Enabling Act of 1889, 25 Stat. 676, authorizing admission to the Union of North Dakota, South Dakota, Montana, and Washington, required each state constitution to include a provision "for the establishment and maintenance of systems of public schools, which shall be ... free from sectarian control." Locke v. Davey, 540 U.S. 712, 723 n.7 (2004).

(112) 540 U.S. 712, 722 (2004). See id. at 724 n.8 ("Washington has also been solicitous in ensuring that its constitution is not hostile toward religion"). See also Witters v. Washington Dept, of Servs. for Blind, 474 U.S. 481 (1986) (finding no Establishment Clause violation in vocational rehabilitation aid to student at Christian college), on remand, 771 P.2d 1119 (Wash. 1989) (striking aid as violating no-aid provision of Washington state constitution).

(113) See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81 (1980) (A state may "adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution."); Cooper v. California, 386 U.S. 58, 62 (1967) (states may impose "higher standards" than required by the Federal Constitution). See also Frank J. Sorauf, The Wall of Separation: the Constitutional Politics of Church and State 26 (1976) ("The states may, if they wish, erect a higher wall of separation between church and state, but they are prevented by the U.S. Constitution from setting a lower one.").

(114) Bush v. Holmes, 886 So.2d 340 (Fla. App. 2004) (en banc), aff'd on other grounds, 919 So.2d 392 (Fla. 2006). See similarly Cain v. Horn, 202 P.3d 1178 (Ariz. 2009) (en banc) (striking school voucher law for violating no-aid prohibition in state constitution). See generally Toby J. Heytens, Note, School Choice and State Constitutions, 86 Va. L. Rev. 116 (2000); Shannon E. Trebbe, Cain v. Horn: School Choice for Whom?, 51 Ariz. L. Rev. 817 (2009). Teachers' unions argue that state Blaine Amendments prohibit voucher programs; advocates for religious education seek their repeal. See Luke A. Lantta, The Post-Zelman Voucher Battleground: Where to Turn After Federal Challenges to Blaine Amendments Fail, 67 Law & CONTEMP. Probs. 213 (2004).

(115) Univ. of Cumberlands v. Pennybacker, 308 S.W.3d 668 (Ky. 2010). Compare Saint Louis Univ. v. Masonic Temple Ass'n of St. Louis, 220 S.W.3d 721 (Mo. 2007) (rejecting state constitutional challenge to grant to Jesuit university for construction of sports arena). See generally Jennifer L. Kawicki, Scaling the Wall Between Church and State: Confronting Issues of Equality Stemming From Financing Religiously Affiliated Universities under Dual Federalism, 55 St. Louis U. L.J. 395 (2010); Aaron E. Schwartz, Comment, Dusting Off the Blaine Amendment: Two Challenges to Missouri's Anti-Establishment Tradition, 72 Mo. L. Rev. 339 (2007).

(116) But see Kathryn E. Komp, Unincorporated, Unprotected: Religion in an Established State, 58 Vand. L. Rev. 301 (2005).

(117) "[R]ights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand[.]"1 Annals of Cong. 757 (1789) (Rep. Daniel Carroll).

(118) See Snee, supra note 52, at 319 ("The religious freedom of American citizens has been more than adequately safeguarded by state constitutions.").

(119) "I believe that freedom is safer in the hands of the legislatures and judges of forty-eight states than at the mercy of varying interpretations by nine men sitting in Washington." Id. See also Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1506 (1987) ("[T]he framers of the Constitution and Bill of Rights believed that state governments were, in some vital respects, safer repositories of power over individual liberties than the federal government."). A criminal justice scholar makes a similar point. See Barry Latzer, Toward the Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation, 87 J. CRIM. L. & CRIMINOLOGY 63, 128 (1996) ("The state constitutional renaissance, in which the state courts established the same or broader-than-federal rights, demolishes any lingering notions that the state bench is insensitive to rights.").

(120) James Madison, speaking at the Virginia ratifying convention in 1787, stated: "There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation." 3 Jonathan Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 330 (2d ed., 1836) [hereinafter Elliot's Debates], At the North Carolina convention, James Iredell, later appointed to the Supreme Court by George Washington, stated: "They [Congress] certainly have no authority to interfere in the establishment of any religion whatsoever[.]" 4 Elliot's Debates 194. When a delegate asked why the Constitution guaranteed a republican form of government, but not religious freedom, Iredell responded: "Had Congress undertaken to guaranty religious freedom ... they would then have had a pretence to interfere in a subject they have nothing to do with. Each state ... must be left to the operation of its own principles." Id. at 195.

(121) Van Orden v. Perry, 545 U.S. 677, 730 (2005) (Stevens, J., dissenting).

Martin Wishnatsky, Staff Attorney for Chief Justice Roy Moore, Alabama Supreme Court; J.D. 2012, Liberty University School of Law; Ph.D. 1975, Harvard University; A.B. 1966, Harvard College. The special writings of Justice Clarence Thomas on the incorporation of the Establishment Clause inspired this article.
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