I very much enjoyed Vincent Phillip Munoz' article ("Establishing Free Exercise," December 2003). He has exposed the incoherence of the Supreme Court's establishment clause jurisprudence and ably demonstrated how that jurisprudence has become a powerful enemy of the free exercise clause. I must disagree, however, with Mr. Munoz' historical exegesis and with his reading of the two religion clauses.
According to Mr. Munoz, the Founders (James Madison in particular) intended the establishment clause to prohibit any special privileges to religious citizens, while the free exercise clause prohibits any special penalties against them. Mr. Munoz' "no privileges, no penalties" interpretation of the religion clauses would require government to strike a pose of strict neutrality, neither favoring nor penalizing religion in any particular. History, however, does not favor Mr. Munoz. The same Congress that passed the First Amendment also established the Congressional chaplaincy system and authorized salaries for the ministers who staffed it. Most of the early Presidents (including Washington, John Adams, and Madison) issued proclamations designating national days of prayer and thanksgiving to God. As president of the University of Virginia (a public school), Jefferson decreed that his students attend chapel at least once a week. As President of the United States, Jefferson obtained the Senate's approval for a treaty with the Kaskaskia Indians, which, among other things, paid the salary of a Catholic priest to minister to the Indians' needs.
Justice Joseph Story, the leading constitutional law scholar in the early nineteenth century, argued that the First Amendment accorded well with "the general if not universal sentiment in America ... that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship." In a careful dissent in the 1985 Wallace v. Jaffree case, Justice William Rehnquist concluded that Madison "saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion."
This view departs dramatically from Mr. Munoz' reading of the establishment clause as "prohibit[ing] the state from singling out religious citizens [rather than religious denominations] for special legal...