I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States through the Fourteenth Amendment. [Citation omitted.] But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision intended to prevent Congress from interfering with state establishments. Thus, unlike the Free Exercise Clause, which does protect an individual right, it makes little sense to incorporate the Establishment Clause.
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The Establishment Clause does not purport to protect individual rights. By contrast, the Free Exercise Clause plainly protects individuals against congressional interference with the right to exercise their religion, and the remaining Clauses within the First Amendment expressly disable Congress from “abridging [particular] freedom.” (Emphasis added.) This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. See, e.g., 2 J. Story, Commentaries on the Constitution of the United States § 1873 (5th ed. 1891); see also Amar, The Bill of Rights, at 32–42; id., at 246–257. History also supports this understanding: At the founding, at least six States had established religions [Citation omitted].... Quite simply, the Establishment Clause is best understood as a federalism provision—it protects state establishments from federal interference but does not protect
any individual right.
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As strange as it sounds, an incorporated Establishment Clause prohibits exactly what the Establishment Clause protected—state practices that pertain to “an establishment of religion.”
