Is the Establishment Clause Unconstitutional?
The question in my title sounds odd, even silly, because as everyone knows, the establishment clause is a part of the Constitution. It is the first clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” At this point I am tempted to begin a sentence with “that is” and follow it with a gloss on the clause. But just what these apparently simple words mean has been debated by the courts with increasing vociferousness and little resolution since Everson v. Board of Education, often referred to as the first modern establishment clause case, was decided in February of 1947. The issue in Everson was whether the use of public funds to transport students to and from parochial schools was an establishment of religion because religion’s interests would be advanced by the expenditure of state monies. Now, 60 years later on March 6th, the Supreme Court of California has considered and ruled on the issue of whether a municipal agency (the California Stat
