Foreword: Our Paradoxical Religion Clauses
Mark A. Graber, 69 Md. L. Rev. 8 (2009)
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The Establishment Clause may violate the Establishment Clause. The First Amendment declares, “Congress shall make no law respecting an establishment of religion.” Little disagreement exists that statutes declaring “Baal is God” or asserting that people will suffer eternal damnation for eating peppermint ice cream are inconsistent with this provision, even if no one is forced to worship Baal or constrained from having peppermint ice cream. Under any reasonable interpretation of the First Amendment, government may not take sides in religious controversies or enshrine religious dogma as law. The Establishment Clause does exactly that. That provision takes one side in the religious controversy over the role of religion in a constitutional community. Some religions insist that God commands a sharp separation between church and state. Others insist that the state should promote the one true religion. The First Amendment plainly establishes the first dogma as the fundamental law of the land. Thus, the First Amendment paradoxically establishes a religious tenet in its effort to avoid establishment of religion.
