Some Further Thoughts About Everson

Notice the Court seems to think that the legal history of Virginia and the "Virginia Bill for Religious Liberty" and the legal history of the United States and the First Amendment are one and the same. Are they? Are Madison's and Jefferson's support for nonestablishment in Virginia inconsistent with a federalism understanding of the Establishment Clause?

Notice that the EC provides that "Congress shall make no law respecting an establishment of religion." How important is the word "respecting" in that clause? Would a national law requiring all citizens (including Virginians) to join an established national church violate the EC as a law "respecting" an establishment of religion? Would a national law forbidding states from establishing a state religion violate the EC as a law "respecting" an establishment of religion? Under the federalism reading of the EC, both of these national laws "respecting" establishment would be unconstitutional. Congress lacks the power to require Virginians to join a national religious establishment and it also lacks the power to forbid the legislatures of Maryland or Massachusetts from enacting laws that touch upon religion. This approach is a compromise that permits Virginia to pass its Bill for Religious Liberty disestablishing religion in that state without interfering with the laws of other states that have a different view of the boundaries between church and state.

Is there a difference between a clause that says "no law respecting an establishment of religion" and a law that says "no law respecting religion?"

By the way, notice that the Virginia Bill for Religious Liberty has an explicit religious purpose--it purports to forbid state funding of religion because "Almighty God hath created the mind free." Is that not an establishment by the Virginia legislature of a religious truth? If so, would the Virginia Bill for Religious Liberty violate the Lemon test if it had been applicable in 1791?