The whole point of this sixteen-page detour (197) into antidisestablishmentarian
theory is to legitimate the use of governmental institutions, especially schools, to promote secularism or irreligion and to discriminate against religious speech.
Not only was RFRA unconstitutional, but any congressional enactment designed to deter states from abridging the free exercise of religion -- regardless of the evidence of state transgressions -- violates the antidisestablishmentarian principle and therefore the Establishment Clause.
Far from being "essential to the fundamental constitutional separation of religion and government,"(17) as Rubenfeld claims it to be, in my view the antidisestablishmentarian principle today serves no constitutional function whatsoever, and does not stand in the way of responsible congressional efforts to remedy or deter violations of the Free Exercise Clause.
The ratification of the Fourteenth Amendment, and the subsequent application of the Establishment Clause to the states,(24) formally eradicated the specific concerns underlying the original antidisestablishmentarian aspects of the First Amendment: States no longer have religious establishments with any constitutional claim to protection from federal interference.
26) When the original antidisestablishmentarian principle developed, the Free Exercise Clause of the First Amendment did not apply to the states.
4) This second aspect of the Establishment Clause, prohibiting Congress from interfering with local pro-religion laws, is its antidisestablishmentarian component.
Instead, the Establishment Clause, in its antidisestablishmentarian aspect, was merely a "sop thrown to" the unprincipled New England states.
For the antidisestablishmentarian principle never merely prevented Congress from abolishing state laws that were constitutionally deemed, or judicially deemed, to be religious establishments.
In this way, RFRA violated the First Amendment's specific antidisestablishmentarian requirement.
53) As Professor Amar has pointed out, of all the state-proposed amendments on religion, New Hampshire's antidisestablishmentarian proposal most closely tracked the actual language eventually adopted in the First Amendment.
74) The core purpose of the Establishment Clause's antidisestablishmentarian component was to bar Congress from tampering with state religion laws, whether or not those laws amounted to actual establishments.
He credited the Puritan divine Byfeld with incircumscriptibleness, Doctor Benson with antidisestablishmentarians
, and William Gladstone with disestablishmentarianism.