Church-State Separation: Restoring the No Preference Doctrine of the First Amendment
![handle is hein.journals/hjlpp9 and id is 143 raw text is: ARTICLES
CHURCH-STATE SEPARATION:
RESTORING THE NO PREFERENCE
DOCTRINE OF THE FIRST
AMENDMENT
ROBERT L. CORD*
I. INTRODUCTION
For almost four decades, since Everson v. Board of Education
was decided in 1947,1 the United States Supreme Court has
sought with historical scholarship to justify its interpretation of
the First Amendment injunction: Congress shall make no law
respecting an establishment of religion. While the Supreme
Court has, on other occasions and subjects, employed a variety
of arguments to justify its holdings,2 in Church-State cases the
Court has, for the most part, consistently relied on what it has
said is the historical intent and mandate of the founding fa-
thers, especially Thomas Jefferson and James Madison.
In recent years, much has been written, debated, and decided
about what, under the law, should be or is the proper relation-
ship between religion and the state. Relevant today, these
words also aptly describe concerns felt two centuries ago when,
in 1785, James Madison and the Virginia State Assembly began
the extensive deliberations that would ultimately yield the dis-
establishment of the Anglican Church and Jefferson's immortal
Bill for Establishing Religious Freedom.' Now, as then, our
public agenda contains many issues that derive from our socie-
tal commitment to the concept of Church-State separation.
In 1785, the Virginia Assembly debated the comprehensive
* University Distinguished Professor and Professor of Political Science, Northeast-
ern University. City College of New York, B.B.A., 1956; Syracuse University, Maxwell
School of Citizenship and Public Affairs, MA., 1958; Ph. D., 1967; Harvard Law
School, Liberal Arts Fellow in Law and Political Science, 1971.
1. 330 U.S. 1 (1947).
2. See, e.g., Payton v. New York, 445 U.S. 573, 591 n. 33 (1980) (current norms);
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178-180 (1803) (constitutional text); Cal-
der v. Bull, 3 U.S. (3 Dall.) 386, 388-389 (1798) (opinion of Chase, J.) (natural law).
3. 2 THE PAPERS OF THomAs JEFFERSON 1777 TO JUNE 18, 1779 (J.P. Boyd ed. 1950)
[hereinafter cited as PAPERS], including the Revisal of the Laws 1776-1786 [hereinafter
cited as Revisal]. (Bill No. 82).](ViewImageLocal?handle=hein.journals/hjlpp9&div=27&collection=&method=preview&ext=.png&size=3)
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Church-State Separation: Restoring the No Preference Doctrine of the First Amendment
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