That was one of the keys - "the City said it wouldn't cite people when shelters weren't open", but the plaintiffs said that one of the religious shelters had an "always open" policy, even if they didn't actually have beds, and they did require religious participation, so the city's point was effectively moot.

At the time Massachusetts ratified the First Amendment, everyone was required to belong to a church and State tax money was used to support those churches: http://www.statelegalhistory.com/home/1-new-england-legal-hi.... Several New England states had government-supported churches well into the 1800s.

Jefferson wrote this in 1802:

> Believing with you that religion is a matter which lies solely between man and his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their "legislature" should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State.

Madison wrote repeatedly about the separation of church and state, as anchored in the 1st Amendment. It was one of the issues that he was particularly passionate about.

As for the states passing legislation regarding religion, the 1st Amendment was originally only a limit on what the Federal government could do. The 1st-Amendment separation between church and state was extended to the states through the 14th Amendment (which led to several of the liberties in the Bill of Rights being extended to the state level).

So in conclusion, the idea of the separation of church and state goes back to the founding generation of the United States. That's not to say it hasn't evolved over time and become stronger. It was a novelty at the time, so you wouldn't expect it to have sprung from Zeus' forehead fully formed.

This is, by definition, a law respecting an establishment of religion. It was permissible only because the Bill of Rights was not applied to the States until the passage of the 14th Amendment.

If you look at the first amendment, the Establishment Clause stands out:

> Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

For the other rights, Congress used verbs: "prohibiting" the free exercise of religion, and "abridging" the freedom of speech, etc. But "an establishment of religion" is a noun. What is an establishment of religion? In 1789, "an establishment of religion" was a known thing: the established churches of the states. So the First Amendment can be interpreted to mean that Congress can't mess with the established churches of the various states.

Turning to incorporation: remember, its not automatic, and incorporation of each amendment must be justified on its own terms. Not all of the Bill of Rights makes sense as applied to the States--for example the Ninth and Tenth Amendments, because those set forth a separation between State and Federal power, not individual rights. There is a natural reading for incorporation of the Free Exercise Clause. But whether it makes sense to incorporate the Establishment Clause turns on what you interpret the Establishment Clause to mean. If the latter, then its really setting forth a separation of State/Federal power, not an individual right, and it makes no sense to apply that to the states.

It means neither.

"Respecting" means "with reference to", and this definition is the same as it was when the Constitution was written. Ergo, "respecting an establishment of religion" means "with reference to an establishment of religion". "Establishment of religion" means "an organization of religion", including both lay churches all the way up to the Anglican Church and the Vatican. So the first half clearly states that Congress shall make no law "with reference to an religious organization."

This is where the separation of church and state comes from. That, and Thomas Jefferson saying explicitly that this was the purpose of that clause and the commonly understood meaning of the Constitutional Congress when they voted on the language...

For the second half: "thereof" means the thing just mentioned, and "exercise" meant "practice" (as in practice a religion, from the original Latin meaning). So "prohibiting the free exercise thereof" means "prohibiting the free practice of religion."

Reading "establishment" synonymous with "organization" would be anawkward and un-idomatic even today. Would you call the ACLU a "civil rights establishment?" Would you call NARAL a "women's rights establishment?"

There are good reasons to believe that's not the sense in which the word is used. The Constitution repeatedly uses the word "establish" in the sense of "to make official." It uses the word "establishment" in one other place, referring to the requirements "for the Establishment of this Constitution.” I.e. the requirements to make the draft constitution the official law of the country.

And historically, "establishment" was used precisely in that sense--a religion that had been made official. The Church of England was an "establishment of religion." The Colonies had had "established" churches, and many, but not all, had "disestablished" their churches. “An establishment of religion” is not a weird way to say “religious organization” but a legal thing that existed at the time that made sense to talk about. And what the First Amendment does is prohibit the federal government from making laws with reference to those "establishment[s] of religion."

Within that framework, Congress was probably prohibited from establishing a national church. But why? Is the answer: because established churches were bad in the same way that cruel and unusual punishment is bad? That would be an odd reading given how many of the original 13 colonies had some form of government supported religion. The other interpretation is that the amendment endeavored to protect these establishments from federal interference. That’s what makes the most sense given the structure of the colonies at that time.

Within that framework, incorporation doesn’t make sense. You take a provision that was intended to protect states' rights to maintain their established religions free from federal interference, and turn it into a provision that eliminates the very right the amendment sought to protect. https://openscholarship.wustl.edu/cgi/viewcontent.cgi?articl...

Quite frankly, I don't care what the words mean today, since we have a body of court cases that has expanded the application of the First Amendment beyond the strict scope of the words as they were written.

There are good reasons to believe that's not the sense in which the word is used. The Constitution repeatedly uses the word "establish" in the sense of "to make official."

You keep trying to make linguistic arguments while ignoring the linguistic means of the words at the time they were originally written, especially when one of the men responsible for actually writing the Bill of Rights explicitly stated what the words of the First Amendment were intended to mean at the time they were written.

The First Amendment was explicitly intended to create separation of church and state at the Federal level. Like the rest of the bill of Rights, it wasn't intended to apply to the states at the time, so your arguments about state churches are entirely irrelevant.

Lastly I wanted to mention the parallel term you draw here because it's also a drifted phrase

> to make official

Is actually a highly accurate synonym for establishment, but only in archaic word usage, official (the adjective) is actually just a corruption of official a noun, it's sort of like "the influencer lifestyle" or "that's an influencer hat". Technically all "off-*" words originally related to religion, but that's gone by the wayside quite a bit by now.

And the opposite view: https://www.theatlantic.com/national/archive/2011/06/constit...

1) It's full of invective and straw-man arguments. It accuses Christine O'Donnell of not having read the Establishment Clause, for example. And it makes a completely irrelevant reference to "old antebellum slave oligarchies," even though it was the free New England states that were the ones that had state-supported churches.

2) It makes tenuous arguments. The "words 'separation of church and state' are not in the text," the article concedes. But "the idea of separation is" present. Of course! In support of that view, it points to the fact that the Constitution prohibits religious tests for office. "If government can't require its officials to support a church," it reasons, "is there a serious argument that church and state are not separate?" Of course, the prohibition on religious tests is entirely consistent with the existence of a plurality of public religions.

It also pulls a "??? Profit!" over the most significant issue: what does "no law respecting an establishment of religion" mean? The article states that it "mean[s] that not only no church but no 'religion' could be made the official faith of the United States." That reads the phrase as "no law establish[ing] [a] religion." But if that's what the Framers meant, they would have written that. That's how they wrote the rest of the first amendment "no law ... prohibiting ... or abridging ...."

3) As with the present Supreme Court precedent on the subject, the article rests almost entirely on the letter of Thomas Jefferson. But Jefferson (a) was not a Framer; and (b) was a radical wingnut. What he thought about things carries some weight, but not all that much. (I would add that almost everyone who invokes Jefferson's view to interpret the First Amendment would recoil in horror at invoking his views to interpret the Second.)