Respecting an Establishment of Religion: A Look at the Establishment Clause and the Accommodation Approach

Authors

Kendal Zylstra

First Page

111

Document Type

Article

Abstract

An often-litigated portion ofthe First Amendment, conversations surrounding the Establishment Clause remain as vibrant as they were centuries ago. The Establishment Clause restricts the government from establishing a state-sponsored religion, but it goes much further than that. But how far does it go? Some argue that the American people should be free from religion, while others argue the government should neutralize the playing field when it comes to religion in the public sphere. Still others advocate for a more "accommodating" approach that acknowledges that one cannot leave their religion at the door, advocates for the free exercise of religion, and maintains a separation between church and state. The First Amendment prevents a theocracy. However, even though it prohibits the establishment of a theocracy, it does not guarantee freedomfrom religion. As Americans, we cannot and should not ask citizens to leave their religious beliefs and perspectives at the door. Although some may try, a complete separation from religion in the public sphere is not possible. Attempting to be "neutral" to or "separate" from religion in the public sphere may seem like a noble goal, but the accommodation approach to religion is the most realistic, accepting the truth of what it means to be human. When considered along with our country's history and tradition, religion is an important part of who we are as individuals and collectively as a country. When drafting the First Amendment, our Constitution's framers did not envision a country without religion. Rather, they understood that religion had a place in the public sphere, as their primary concern was an institutional separation between government and religion. In light of that history and our country's traditions, the "history and tradition" test ensures First Amendment protections and maintains the intent of the Framers. This paper aims to bring a broader understanding to contrasting viewpoints on the Establishment Clause and the current state of First Amendment jurisprudence. Further, this paper argues that the most appropriate approach to the First Amendment, and specifically the Establishment Clause, is the accommodation approach with a history and tradition test. Finally, this paper will briefly discuss prayer in schools in accordance with these approaches.

Recommended Citation

Kendal Zylstra, Respecting an Establishment of Religion: A Look at the Establishment Clause and the Accommodation Approach, 37 St. Thomas L. Rev. 111 (2024).
Available at: https://scholarship.stu.edu/stlr/vol37/iss1/6