The first line of argument that the Right presents to counter the plain meaning of the First Amendment is to say that the purpose of the Establishment Clause was to prohibit the establishment of a State religion. According to this argument, other than establishing a State religion, the State could makes laws on religion.

Of course, the plain text renders this argument absurd. The language required to do what the Right argues would be quite simple - "Congress shall not establish a State religion." But the First Amendment does not say this. It expressly prohibits the State from making laws regarding the Establish of RELIGION, period. That is ALL religion.

But let's pretend for a moment that the text was, actually what it is not, ambiguous. Let's consider what such an interpretation of the Establishment Clause would mean. It would mean that Congress could fund religions just so long as it did not establish one State religion. It could choose to fund religious schools, religious missions, the prostyletizing of religions throughout the nation and the world, etc. It could celebrate religions.

Could it ban certain religions? Not even under this interpretation as the Free Exercise clause prohibits government interference with the exercise of religion. But this interpretation WOULD permit State promotion of religion.

This view is so extreme that is gets no serious hearing in the Supreme Court. Not even Scalia would buy into this one.

So what have the Courts done? The modern case law begins with Everson:

This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute. Reynolds v. United States, supra, 98 U.S. at page 164; Watson v. Jones, 13 Wall. 679; Davis v. Beason, 133 U.S. 333, 342 , 10 S.Ct. 299, 300. . . . The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' Reynolds v. United States, supra, 98 U.S. at page 164.

The language of Everson is quite absolute, as is the language of the Establishment clause. But the result was not quite so absolute, the reimbursement of certain expenses related to attendance at parochial schools was upheld. The dissents, among the dissenters were Frankfurter and Jackson, were vehement that the majority had not enforced the the absolute separation of church and state the text of the First Amendment compelled. Jackson, joined by Frankfurter wrote:

The Court's holding is that this taxpayer has no grievance because the state has decided to make the reimbursement a public purpose and therefore we are bound to regard it as such. I agree that this Court has left, and always should leave to each state, great latitude in deciding for itself, in the light of its own conditions, what shall be public purposes in its scheme of things. It may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. There is no answer to the proposition more fully expounded by Mr. Justice RUTLEDGE that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today. This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse. Those great ends I cannot but think are immeasurably compromised by today's decision.

You can have no doubt that I believe the dissent had the better argument. But for the Right, even the majority is objectionable.

And object they did. So much so that not 25 years later, not even the rule of the majority in Everson survived intact, instead the Lemon test was devised:

The language of the Religion Clauses of the First Amendment is at best opaque, particularly when compared with other portions of the Amendment. Its authors did not simply prohibit the establishment of a state church or a state religion, an area history shows they regarded as very important and fraught with great dangers. Instead they commanded that there should be "no law respecting an establishment of religion." A law may be one "respecting" the forbidden objective while falling short of its total realization. A law "respecting" the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion but nevertheless be one "respecting" that end in the sense of being a step that could lead to such establishment and hence offend the First Amendment.

In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity." Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.

It should come as no surprise that this monstrosity of an opinion was authored by Chief Justice Burger, who surely must go down as one of the dimmest bulbs ever to sit on the Court.

After this, a new strain was developed by the Right Wing of the Court. Justice Scalia's dissent in Lee exemplifies the argument:

Three Terms ago, I joined an opinion recognizing that the Establishment Clause must be construed in light of the "[g]overnment policies of accommodation, acknowledgment, and support for religion [that] are an accepted part of our political and cultural heritage." That opinion affirmed that "the meaning of the Clause is to be determined by reference to historical practices and understandings." It said that "[a] test for implementing the protections of the Establishment Clause that, if applied with consistency, would invalidate longstanding traditions cannot be a proper reading of the Clause." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 657 , 670 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part). These views, of course, prevent me from joining today's opinion, which is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court - with nary a mention that it is doing so - lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion, which promises to do for the Establishment Clause what the Durham rule did for the insanity defense. See Durham v. United States, 94 U.S. App. D.C. 228, 214 F.2d 862 (1954). Today's opinion shows more forcefully than volumes of argumentation why our Nation's protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.

Talk about changing philosphical predilections - here is the supposed textualist making no reference whatsoever to not only the actual text of the Constitution but to the actual words of the Framers. So there you have the new line of attack - the "history" argument. That Scalia cites not one jot of history to support his views is entirely predictable. For to do so would destroy his argument.

Similarly in the Alleghany County, the Court contradicted its Pawtucket decision which allowed a creche display, but also strayed from the text of the Constitution, indeed even from the Lemon test, following an "endorsement" test:

In the course of adjudicating specific cases, this Court has come to understand the Establishment Clause to mean that government may not promote or affiliate itself with any religious doctrine or organization, 40 may not discriminate among persons on the basis of their religious beliefs and practices, 41 may not delegate a governmental power to a religious institution, 42 and may not involve itself too deeply in such an institution's affairs. 43 Although "the myriad, subtle ways in which Establishment Clause values can be eroded," Lynch v. Donnelly, 465 U.S., at 694 (O'CONNOR, J., concurring), are not susceptible to a single verbal formulation, this Court has attempted to encapsulate the essential precepts of the Establishment Clause. Thus, in Everson v. Board of Education of Ewing, 330 U.S. 1 (1947), the Court gave this often-repeated summary . . . In Lemon v. Kurtzman, supra, the Court sought to refine these principles by focusing on three "tests" for determining whether a government practice violates the Establishment Clause. Under the Lemon analysis, a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion. 403 U.S., at 612 -613. This trilogy of tests has been applied regularly in the Court's later Establishment Clause cases. 44 Our subsequent decisions further have refined the definition of governmental action that unconstitutionally advances religion. In recent years, we have paid particularly close attention to whether the challenged governmental practice either has the purpose or effect of "endorsing" religion, a concern that has long had a place in our Establishment Clause jurisprudence. See Engel v. Vitale, 370 U.S. 421, 436 (1962). . . Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S., at 70 . . . Whether the key word is "endorsement," "favoritism," or "promotion," the essential principle remains the same. The [492 U.S. 573, 594] Establishment Clause, at the very least, prohibits government from appearing to take a position on questions of religious belief or from "making adherence to a religion relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S., at 687 (O'CONNOR, J., concurring).

At the very least indeed. Actually it says the State shall make NO LAW, not even ones that fo not endorse religion. but we have strayed far from the text of the Constitution. the Judicial Activism applauded by the Right has eviscerated the plain menaing of the Establishment Clause, its purpose as stated by Jefferson and Madison and the settled precedents.

The irony is of course that the Right here endorses judicial activism, though of course they cloak it in "history" as this dissent attests:

The majority holds that the County of Allegheny violated the Establishment Clause by displaying a creche in the county courthouse, because the "principal or primary effect" of the display is to advance religion within the meaning of Lemon v. Kurtzman, 403 U.S. 602, 612 -613 (1971). This view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents, and I dissent from this holding. The creche display is constitutional, and, for the same reasons, the display of a menorah by the city of Pittsburgh is permissible as well. On this latter point, I concur in the result, but not the reasoning, of Part VI of JUSTICE BLACKMUN'S opinion.

You see the demogoguery in this? Enforcing the church-state separation is a manifestation of "hostility towards religion"!! What nonsense! Were Jackson and Frnakfurter hostile towards religion? Becuase this case would have been decided 9-0 by the Everson Court. What hogwash. More:

. . . Substantial revision of our Establishment Clause doctrine may be in order; but it is unnecessary to undertake that task today, for even the Lemon test, when applied with proper sensitivity to our traditions and our case law, supports the conclusion that both the creche and the menorah are permissible displays in the context of the holiday season.

The only Lemon factor implicated in these cases directs us to inquire whether the "principal or primary effect" of the challenged government practice is "one that neither advances nor inhibits religion." 403 U.S., at 612 . The requirement of neutrality inherent in that formulation has sometimes been stated in categorical terms. For example, in Everson v. Board of Education of Ewing, 330 U.S. 1 (1947), the first case in our modern Establishment Clause jurisprudence, Justice Black wrote that the Clause forbids laws "which aid one religion, aid all religions, or prefer one religion over another." Id., at 15-16. We have stated that government "must be neutral in matters of religious theory, doctrine, and practice" and "may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite." Epperson v. Arkansas, 393 U.S. 97, 103 -104 (1968). And we have spoken of a prohibition against conferring an "`imprimatur of state approval'" on religion, Mueller v. Allen, supra, at 399 (quoting Widmar v. Vincent, 454 U.S. 263, 274 (1981)), or "favor[ing] the adherents of any sect or religious organization," Gillette v. United States, 401 U.S. 437, 450 (1971).

These statements must not give the impression of a formalism that does not exist. Taken to its logical extreme, some of the language quoted above would require a relentless extirpation of all contact between government and religion. But that is not the history or the purpose of the Establishment Clause. Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage. As Chief Justice Burger wrote for the Court in Walz v. Tax Comm'n of New York City, 397 U.S. 664 (1970), we must be careful to avoid "[t]he hazards of placing too much weight on a few words or phrases of the Court," and so we have "declined to construe the Religion Clauses with a literalness that would undermine the ultimate constitutional objective as illuminated by history." Id., at 670-671.

In other words, they have ignored the text of the Establishment Clause. Judicial activists indeed! More:

Rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society. Lynch v. Donnelly, supra, at 678; Walz v. Tax Comm'n of New York City, supra, at 669. Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious. A categorical approach would install federal courts as jealous guardians of an absolute "wall of separation," sending a clear message of disapproval. In this century, as the modern administrative state expands to touch the lives of its citizens in such diverse ways and redirects their financial choices through programs of its own, it is difficult to maintain the fiction that requiring government to avoid all assistance to religion can in fairness be viewed as serving the goal of neutrality.

There you have it. The text means nothing. The intent of the Framers means nothing. Demagoguery abounds, for if the State does not involve itself in religion then it is hostile to religion. Hogwash.

Let us be clear. The Establisment clause says NO LAW respecting establishment of religion. Its meaning is unambiguous. No State involvement means neither endorsement nor hostility. It means absolute non-involvement. Complete spearation. Think of it this way, if the State is asolutely prohibited then no hostility can be inferred. they are prohibited from acting in any way towards religion.

Now my theory of constitutional interpretation permits an originalist approach that permits the Constitution to live in order to serve the underlying purposes of the Constitution as a whole. But no one can argue that the erosion of church-state separation serves the purpose of the Establishment clause. Indeed, it is clearly undermining the purpose.

But pragmatic realism abounds. The disingenuousness is palpable. The express mandate of separating the State from religion contained in the First Amendment is utterly ignored. It presents a serious threat.