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There are two kinds of laws which congress (and state legislatures) are prohibited from making:  laws "respecting an establishment of religion," and laws "prohibiting the free exercise thereof."  It has been observed that there are times when these two clauses are in a tension.  When such a tension or conflict occurs, the court must examine the particular question before it, and balance the interests of the "establishment" clause and the "free exercise" clause.^[1] 

However, such a balancing test is irrelevant until the activity under scrutiny violates establishment clause.  It is this clause on which we now focus.

The particular words of the establishment clause are "respecting an establishment of religion."  Unlike the primary clause "Congress shall make no law," whose interpretation was straightforward, the establishment clause is admittedly filled with terms which, though not utterly ambiguous, are certainly subject to debate and interpretation by reasonable men.

Exegesis of the word "respecting"

The word "respecting" is a participle.  It could reasonably be translated "with respect to" or "with regard to."  It connects the prohibition against making laws with the concept of an establishment of religion.  It reasonably yields itself to three interpretations.

1.  It prohibits laws establishing a purposeful relation--laws whose purpose is directed toward an establishment of religion. 

2.  It prohibits laws sustaining cause and effect relationships "laws whose result is to effect an establishment of religion."

3.  Finally, it could prohibiting relationships of proximity, "laws which inadvertently demonstrate a close nexus or proximity to an establishment of religion."  It should be observed that these three options are essentially the Lemon Test.^[2]

It must be noted however that the Lemon test presupposes the disjunctive-- "neither laws purposefully directed at, nor laws causally affecting, nor laws proximately related to an establishment of religion."  That is to say, if any one of these three possibilities were violated, it would trigger an establishment clause violation.  One could equally argue that the word "respecting" bore an exclusive meaning (that the framers had in mind only one of these three options), or even a conjunctive interpretation (that purpose, cause and proximity must all be violated to trigger a violation of the establishment clause.)  The disjunctive presupposition is clearly the most restrictive of the three exegetically sustainable options.  Although exegetically sustainable from a grammatical point of view, it is not quite so clear from history that such a restrictive application of the word "respecting" was intended by the framers.^[3]

Exegesis of the term "an establishment"

If we were therefore to base our analysis of the First Amendment on a grammatical analysis, and not on the last fifty years of Supreme Court decisions, it is clear that modern day conservatives generally get the nod generally on the primary clause "Congress shall make no law," which says nothing of non-legislative action.  Modern day liberals get the nod on the primary clause where legislative action has specifically occurred, such as Edwards v. Aguillard, and liberals would probably get the nod on the term "respecting," which is arguably consistent with the Lemon test, and unquestionably consistent with legislative intent, the first prong of the Lemon test -- purpose.  The real conundrum then of the First Amendment is the phrase "an establishment of religion."

There are basically two interpretations of the phrase "an establishment" of religion.  A substantival interpretation would refer to an actual religious institution, (e.g. the Roman Catholic Archdiocese of Philadelphia, the First Baptist Church of Fort Worth, etc.)  A participial interpretation would refer to the act of establishing a religion (e.g. a legislative act advancing some specific religion or incorporating a new church in one's neighborhood.)  These distinctions are illustrated by the following two renditions of the First Amendment:

THE SUBSTANTIVAL INTERPRETATION

"Congress shall make no law respecting a religious institution."       or %u2014 "Congress shall make no law respecting an institution of religion."

THE PARTICIPIAL INTERPRETATION

"Congress shall make no law respecting an establishing of religion.        or  %u2014

"Congress shall make no law with regard to an act of establishing a religion."

The First American Dictionary 

In holding the participial sense of the word "establishment", Justice Rehnquist observed in his dissent in Wallace v. Jaffree, 472 U.S. 38 (1985):

"the first American dictionary defined the word "establishment" as "the act of establishing, founding, ratifying or ordaining" such as in "[t]he Episcopal form of religion, so called, in England."  1 N. Webster, American Dictionary of the English Language (1st ed. 1828.)

Actually, Rehnquist quotes two separate entries of the 1828 dictionary.  These entries are quoted below in their entirety:

[1]  The act of establishing, founding, ratifying or ordaining.

2.  Settlement;  fixed state.  Spenser.

3.  Confirmation;  ratification of what has been settled or made.    Bacon.

4.  Settled regulation;  form ; ordinance ; system of laws ; constitution of government.

Bring in that establishment by which all men should be contained in duty.  Spenser

5.  Fixed or stated allowance for subsistence ; income ; salary.

His excellency--might gradually lessen your establishment.     Swift

6.  That which is fixed or established; as a permanent military force, a fixed garrison, a local government, an agency, a factory &c.  The king has establishments to support, in the four quarters of the globe.          G. Britain.

7.  The episcopal form of religion, so called in England.

8.  Settlement or final rest.

We set our hopes and establishment here.  Wake.

In examining the 1825 dictionary entry in its entirety above, one notes that, in actuality, only the first entry is circumstantial or participial, being equivalent to the participial form "establishing."  Meanings 2-7 are substantival . . . an institution, such as the Episcopal church, or a military garrison.  Rehnquist even cited the seventh entry, "the episcopal form of religion," but failed to note the nuanced distinction between this and the first entry.  Only the first was circumstantial.

Because the 1828 Webster dictionary was written after the First Amendment was ratified, any meanings that were known to the framers of the Bill of Rights were presumably available to Webster.  The mention of "The episcopal form of religion" by the lexicographer suggests that the first amendment may even have been in his mind at the time.  Rehnquist's citation demonstrates that the circumstantial interpretation is plausible.  But an examination of Webster's actual 1828 dictionary suggests that the substantival meaning is far more likely

The proposed drafts of the first amendment

A second argument can be made from some of the proposed drafts of the First Amendment.  In virtually all of them, the actual participial form is in fact used:

1.  Congress shall make no law establishing religion, or prohibiting the free exercise thereof, nor shall the rights of freedom be infringed.

2.  Congress shall make no law establishing one religious sect or society in preference to others, nor shall the rights of conscience be infringed.

3.  Congress shall not make any law, infringing the rights of conscience, or establishing any religious sect or society.

4.  Congress shall make no law establishing any particular denomination in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.

5.  Congress shall make no law establishing religion, or prohibiting the free exercise thereof.

6.  Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion. . .^[4]

Because the actual participle was used in many of the drafts of the first amendment, it could be argued that the term "establishment" ultimately used in the actual First Amendment bears the same meaning.  The argument cuts both ways however.  Why, after any number of attempted drafts did the framers abandon the participle "establishing", and adopt the participle "respecting" along with the substantival form, "establishment?"  When all is said and done, this argument appears to be equally weighted to both positions.

Technically speaking, "establishing" would only prohibit the inauguration of a state religion, whereas, with the adoption of the participle "respecting," any laws which would inaugurate, favor, hinder, or in any way regulate an establishment of religion are prohibited.  Therefore, the participle "respecting" clearly prohibits a greater range of interference by the state than the participle "establishing."

The Interpretation of Supreme Court Justice Story

Joseph Story, appointed to the Supreme Court by James Madison, Chief Architect of the Constitution, had this to day about the First Amendment.

We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence, than the framers of the Constitution). . . . Probably, at the time of the adoption of the Constitution, and the amendment to it, now under consideration [the First Amendment], the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State. . . An attempt to level all religions, and make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."^[5]

Story, then, understood the primary purpose of the First Amendment to be a "prohibition of a national religious establishment."  This only adds to the confusion.  On the one hand, the word "establishment" as used by Story is clearly the institutional sense.  On the other hand, the thought conveyed here by Story, the "prohibition of a national religious establishment" is clearly consistent with the participial interpretation of the First Amendment.  "Congress shall make no law respecting the %u2018establishing' of a (national) religion."  In one single sentence by Chief Justice Story, both interpretations are seen as valid.  (Which only serves to highlight why this term has presented such a daunting challenge to the Courts.  Good arguments can be advanced on both sides.)  Inasmuch as Joseph Story was the Chief Justice of the Supreme Court appointed by James Madison, the "chief architect of the Constitution," Story's interpretation cannot be lightly dismissed.  We shall return to Story's interpretation momentarily.

The anaphoric article 

Depending upon the grammarian consulted, there are typically five to seven uses of the definite article.  When a definite article coupled to a noun refers to an antecedent usage of the same noun, the definite article is categorized as an anaphoric article.  One can best illustrate this by the following two sentences:

I came upon a stream in the wilderness.  A stream was badly polluted.

OR

I came upon a stream in the wilderness.  The stream was badly polluted.

When the stream is first mentioned, the indefinite article "a" is used a stream since this is the first time the stream is mentioned.  However, with each subsequent mention of the stream, the definite article identifies it as the same stream already spoken of.  The use of the definite article preceding the second occurrence of the word "stream" is known as an anaphoric article.  As the reader will note from the first of the two sentences above, the use of the indefinite article "a" the second time the word "stream" occurs is grammatically absurd.

In the first amendment, if the phrase "establishment" is given a participial nuance establishing it would obviously be referring to the act of establishing a religion.  But the congressional act of establishing a religion would be equivalent to the congressional act of making a law with respect to religion.  The phrases "making laws" and "establishing" would thus refer to the same action.  Such a construction should therefore require the anaphoric usage of the definite article the second time the same action is addressed.  "Congress shall make no law respecting the establishing of religion."  Accordingly, if one were to interpret the word "establishment" in the participial sense of "establishing," the use of the indefinite article "an" becomes grammatically awkward.  This strongly militates against the participial interpretation of the establishment clause.^[6]

The indefinite article on the other hand makes perfect sense under the substantival or institutional interpretation of the word "establishment."  Consider how absurd such a rendition would sound with a definite article. "Congress shall make no law respecting the religious institution" as if there were only one religious institution, or one of such prominence that any reader would clearly infer which institution was being addressed.  Because the substantival interpretation would be absurd if preceded by a definite article, the indefinite article actually found in the First Amendment is not only consistent with the substantival meaning of "establishment," it is virtually required.  "Congress shall make no law respecting a religious institution."

Because the definite article is incompatible with the institutional interpretation and the indefinite article is reasonably incompatible with the participial interpretation, the presence of the indefinite article clearly favors the institutional interpretation.

Finally, it should be observed that the participial interpretation of "establishment" can be construed as a subset of the institutional interpretation.  A law which said "Anglicanism shall be the national religion" would obviously be a law respecting a particular religious establishment, and, at the same time, would be establishing that religion as the national religion.  Therefore, an institutional interpretation of the term "establishment" affords the same protections against a national religion intrinsic in the participial view, but offers additional protections such as general doctrinal beliefs or sacerdotal functions.  This would be consistent with Story's statement which corroborates both interpretations.

Exegesis of the term "religion"

There are basically two interpretations of the term "religion" the abstract concept of religion, and a specific religious society or sect.  In the proposed drafts of the first amendment, we saw "religion" used 3 times, "rights of conscience" 3 times and the equivalent "rights of freedom" 1 time, "religious sect or society" 2 times, "articles of faith" 1 time and "mode of worship" one time.  Virtually all of these terms deal with protection against sectarianism, not "religiosity."  Laws establishing articles of faith or mode of worship would, if consistent with one particular sect or denomination, constitute the "establishing" of a national religion.  It would also infringe on specific religious "establishments."  But either way, the enemy was sectarianism, not piety.

The following grid helps us to understand the four possibilities.

Chapter 4: Exegesis of the First Amendment