Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitary-Accommodationist Argument for the Constitutionality of God in the Public Square
Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitar y- Accommodationist Argument for the Constitutionality of God in the Public Square
Carolyn A. Deverich 0
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Recommended Citation Carolyn A. Deverich, Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitary-Accommodationist Argument for the Constitutionality of God in the Public Square, 2006 BYU L. Rev. 211 (2006). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2006/iss1/5
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Establishment Clause Jurisprudence and the Free
Exercise Dilemma: A Structural
UnitaryAccommodationist Argument for the Constitutionality of
God in the Public Square
I. INTRODUCTION
In 1620, a small band of religious dissenters1 embarked on a three
thousand mile journey across the sea.2 They would encounter storms,
sickness,3 even death,4 finally reaching the northeastern American shore
exhausted and ill-prepared for the harsh winter ahead.5 Nearly half of
their party would die within the year.6 But they would stay because this
new land was their Zion, a “place where they might have liberty” to
worship God freely.7 From these historic beginnings, America has
1. These dissenters were Leyden Separatists who believed that true religion could be found
only by “separating” from the Church of England. EDNA BARTH, TURKEYS, PILGRIMS, AND INDIAN
CORN: THE STORY OF THE THANKSGIVING SYMBOLS 16–18 (1975). In this respect, they differed
from the Puritans of Massachusetts Bay who desired only to “purify” the Church of England. Id. at
17.
2. Id. at 28. The trek that would bring the Pilgrims to American soil would take sixty-six
days to complete. Id.
3. Id. at 22–23. Because of the Pilgrims’ late September start, they encountered westerly
gales that were so violent that a main beam in the ship buckled. Id. at 20, 22–23. Many passengers
were ill. Id. at 22. William Bradford, the future governor of Plymouth Colony, recounts, “After they
had enjoyed fair winds and weather for a season, they were encountered many times with cross
winds and met with many fierce storms . . . .” WILLIAM BRADFORD, OF PLYMOUTH PLANTATION
1620–1647, at 58 (Alfred A. Knopf, Inc. 1959) (1650).
4. BARTH, supra note 1, at 20. Just two years earlier, one hundred thirty passengers died on
a journey to Virginia with English Separatist Francis Blackwell. Id. On this voyage, a member from
the Mayflower crew died at sea. Id. at 25–26. Blackwell was described as a malicious sailor, having
threatened to throw sick passengers to the sharks and then steal their belongings. Id.
5. RALPH LINTON & ADELIN LINTON, WE GATHER TOGETHER: THE STORY OF
THANKSGIVING 48 (1949). The Pilgrims arrived in December of 1620. Id. A historian notes, “The
devout band which had landed on Plymouth Rock . . . were a courageous and hardworking lot, but
they were ill-equipped, both personally and materially, for hewing a livelihood from a formidable
wilderness.” Id.
6. Of the Pilgrims and crew who left England, approximately half survived. Henry R. Viets,
Some Features of the History of Medicine in Massachusetts During the Colonial Period: (1620–
1770), 23 ISIS 389, 391 (1935).
7. BRADFORD, supra note 3, at 24.
[2006
continued to build in the tradition of religious freedom. This freedom is
the seed of the nation’s conception and a primary end of its existence.8
Today, statistics indicate that a relatively large percentage of
Americans continue to view religion as a fundamental aspect of their
lives,9 especially when compared with other industrialized nations.10
Americans rank among the highest of developed populations for church
attendance and monetary contributions to religious institutions.11 Some
polls indicate that approximately ninety percent of Americans believe in
the existence of a god,12 seventy percent pray,13 and forty percent read
the Bible every week.14
Despite these numbers indicating continuing spiritual traditions,
religious15 Americans currently face what has been described as a
8. Describing the mission of the Continental Congress that would form the nation, Thomas
Paine wrote, “The conferring members being met, let their business be to frame a Continental
Charter, or Charter of the United Colonies . . . (Always remembering, that our strength is
continental, not provincial:) Securing freedom and property to all men, and above all things, the free
exercise of religion, according to the dictates of conscience . . . .” THOMAS PAINE, COMMON SENSE
42 (Bantam Classic ed. 2004) (1776).
9. See generally Richard Morin, Do Americans Believe in God?, WASH. POST, Apr. 24,
2000, http://www.washingtonpost.com/wp-sr (...truncated)