Between A Rock and Charybdis
The Court's Establishment Clause cases operate as it were between two curbstones of a major roadway： （1） the separation of religion and government， and （2） the accommodation between religion and government. On the one hand， the separationists argue， following Thomas Jefferson' wall of separation analogy， that religious institutions and government funding/support for religion must be kept completely separate. On the other hand， accommodationists， who seem to have the upper hand today， argue that American has always been a religious nation and the role of government is not to eliminate all religious influences from the public square but only officially not to endorse9 any religion， denomination10 or sect11.
Separationists would argue for example that school vouchers13， enabling a student's family to take a voucher12 （representing the tax dollars paid by a family to the sustain the public school system） and use it to enable their child to attend either public or private/parochial schools violates the Establishment Clause because it facilitates use of government money （tax dollars） to support religious schools. Accommodationists would argue， on the other hand， that as long as government is aiding all religions or potentially allows that help to take place， then it is not violating the Establishment Clause. Hence， a central issue in Establishment Clause jurisprudence over the next years will be whether government is prohibited， as the 1947 Everson case says， from not only favoring religion over religion but favoring religion over irreligion.
Though one could point to lots of other reasons why no consistent modern Establishment Clause jurisprudence has developed， I think the basic philosophical14 issue is at the heart of it： does a particular Justice tend to be more of a separationist or an accommodationist？ If Judge Roberts， who will probably be Chief Justice in two weeks， wants to work on a consensus， he will have to crack this philosophical nut.
The Urgency of the Task
If such a disagreement touched an area of law such as antitrust law or medicare fraud or the law of eminent15 domain16， it would have dramatic implications for people who were really in the know， but it wouldn't pique17 broad societal interest. But the Establishment Clause cuts pretty closely to the bone of how Americans understand themselves. Religion is， as even the most secularly-leaning liberal now understands， a major concern not simply of the yahoos in our culture but also a significant number of educated and thoughtful people. But， even the most thoughtful people are， at first， somewhat confused as to why the Court could hand down two decisions on the same day within the last three months， one of which approves the placement of the Ten Commandments on public property and the other of which disallows18 such a practice. Of course， if you read the decisions of the Justices carefully， you see why the cases were decided19 the way they were， even if there is no overarching theory of why one was acceptable and one was not. But few have time and fewer have the training to slog through dozens of pages of sometimes dense20 legal prose to get to the bottom of the issue. The result is that America is seemingly as confused as is the High Court on when a practice （i.e.， posting the 10 Commandments） that is probably symbolic21 but nevertheless touches a lot of people is permissible22 or not.
And misunderstanding is liable to continue to grow. During the confirmation hearing of Judge Roberts， news reports told of an audible gasp23 in the hearing room when it was learned that another CA US District Court had struck down the recitation of the Pledge of Allegiance in public schools in the District because the phrase under God constituted an establishment of religion. No one should have gasped24， for the District Court was simply bound by the decision reached three years ago by the 9th Circuit holding the same thing （and the District Court is required to apply Circuit precedent25）。 Nevertheless， the fact that such a reaction arose means that even at the highest levels the uncertainty26 regarding how Courts read the 1st Amendment （and Circuit precedent） reigns27.
My hope is that this page， and the critical essays reflecting on these decisions， will help shed light on this highly important， but hotly disputed， area of American law.
