Hi Fred,
Bit of an old post to drag up, but I don't mind.
I grant that the two documents contain in substance the "separation of Church and state," although the statue prohibits only substantial government support of religion - I can't see that a merely verbal acknowledgement even of a particular religious body as the true religion would be contrary to the Statue on Religious Freedom, but it certainly would be illegal under the modern version of the "separation."
But I'm hardly convinced that this is the interpretative key to the establishment clause of the First Amendment. Madison himself (as Rehnquist quotes him in Wallace) describes the purpose of the clause as follows: "Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." The legislative history of the Amendment, as Rehnquist relates it, sticks closely to this understanding, and it seems to have been the originally and generally accepted one (which I reckon the proper test for the interpretation of any law). Now this is rather different from the regulations of the Statue on Religious Freedom.
Personally, I consider Rehnquist's mistake in Wallace to be not protesting against the supposed incorporation of the establishment clause. I think Justice Thomas is much closer to the mark in his opinion in Newdow.
Let me get this straight - Are you saying that the Memorial and the Virginia Act contain the substance the religion clauses, but they only prohibit substantial government support of religion?
Do believe that the fundamental principle of religious freedom is no substantial government support of religion?
What if a law requires summary execution of those who advocate or practice infant baptism? Would that pass the test for “no substantial government support of religion?”
Why do you suppose Rehnquist only presented half of Madison’s description of the purpose of the proposed amendment that read, “No religion shall be established by law, nor shall the equal rights of conscience be infringed” and why didn't you read everything Madison said about the meaning of the amendment before deciding to own Rehnquist's "I only see what I want to see" view.
Below is Madison’s complete statement of his understanding of the purpose of the proposed amendment.
MR. MADISON said he apprehended the meaning of the words to be, that CONGRESS SHOULD NOT ESTABLISH A RELIGION, AND ENFORCED THE LEGAL OBSERVATION OF IT BY LAW, NOR COMPEL MEN TO WORSHIP GOD IN ANY MANNER CONTRARY TO THEIR CONSCIENCE. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might INFRINGE THE RIGHTS OF CONSCIENCE, AND ESTABLISH A NATIONAL RELIGION; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit.
Madison actually provided two interpretations of the proposed amendment in the same paragraph. :
· Congress should not establish a religion, and enforced the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.
· Congress should not make laws of such a nature as might infringe the rights of conscience and establish a national religion
Madison saw the primary fundamental purpose of the proposed amendment to be the prohibition of laws infringing on the rights of conscience. Establishing a compulsory religion or a national religion were just two of a million different ways of violating the rights of conscience.