Over a century and a half passed, and the Supreme Court began to muddle the meaning, especially in 1947’s Everson v. Board of Education. Justice Hugo Black took it upon himself to change the phrase from “an establishment of religion” into “the establishment of religion.” This dramatically altered the meaning of this clause.
Here is a tremendous example of how words, or even a single word, hold power. That seemingly little change in the use of an article, from “an” to “the,” altered American jurisprudence profoundly. This change by Justice Black allowed subsequent courts to examine all sorts of religious issues in the name of “the establishment of religion.”
This makes March 2014 all the more important. The court will hear oral arguments on the Hobby Lobby and Conestoga Wood Specialties cases. Will the court follow Justice Black’s version of establishment, or look at the cases as free exercise issues? To put the importance of this into perspective, consider that later cases in Black’s tradition have suggested that a public prayer is establishing religion. There is no doubt that confusion has been the result. Perhaps some of these older cases should be re-heard by the Court.
—L. John Van Til, “Liberty of Conscience in the Public Square: Challenges to the Affordable Care Act” (HT: Aquila Report) (Here’s an interview with Dr Van Til from 2010.)