Establishment Clause Jurisprudence and the Free Exercise Dilemma: A Structural Unitary-Accommodationist Argument for the Constitutionality of God in the Public Square

BYU Law Review, Dec 2006

By Carolyn A. Deverich, Published on 03/01/06

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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 0 Thi s Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information , please contact 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 Part of the First Amendment Commons; Law and Politics Commons; and the Religion Law - Commons 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)


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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, BYU Law Review, 2006, Volume 2006, Issue 1,