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American Minute with Bill Federer
Jefferson's Virginia Statute of Religious Freedom: In Depth Look at Religious Liberty & How Courts over time have Taken It Away!
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"On Religious Freedom Day ... we commemorate the ... anniversary of the passing of a State law that has shaped and secured our cherished legacy of religious liberty." - proclaimed President Donald J. Trump, January 16, 2018.
He continued:
"Our forefathers, seeking refuge from religious persecution, believed in the eternal truth that freedom is not a gift from the government, but a sacred right from Almighty God.
On the coattails of the American Revolution, on January 16, 1786, the Virginia General Assembly passed the Virginia Statute of Religious Freedom ...
This seminal bill, penned by Thomas Jefferson, states that, 'all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.'"
The 114th Congress issued a Resolution, January 16, 2017:
"Whereas American democracy is rooted in the fundamental truth that all are created equal, endowed by our Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness ...
Whereas the First Amendment protects the right of individuals to freely express and act on their religious beliefs,
as well as the freedom of all individuals to not be coerced to profess or act on a religious belief to which they do not adhere ... and to practice their faith without fear or intimidation ...
Resolved by the Senate (the House of Representatives concurring), That Congress honors the 230th anniversary of the passage of the Virginia Statute for Religious Freedom."
The Statute preceded the First Amendment by five years.
It was drafted by Thomas Jefferson in 1777, and passed the Virginia Assembly on JANUARY 16, 1786.
Jefferson thought so highly of it that he instructed it be memorialized on his grave monument.
QUESTION:
Was it the intention of Jefferson to limit religious expression?
Did Jefferson want the government to prevent acknowledgements of God by students, teachers, coaches, chaplains, nuns, schools, organizations and communities?
Did Jefferson's want the government to force people to violate their religious consciences?
In 1776, a year prior to Jefferson drafting his statute, another Virginian, George Mason, drafted the Virginia Declaration of Rights.
It was revised with the help of Patrick Henry and James Madison, who referred to in his Memorial and Remonstrance, 1785.
Mason, Henry, and Madison's Virginia Declaration of Rights stated:
"Religion, or the duty we owe to our CREATOR, and manner of discharging it, can be directed only by reason and conviction, not by force or violence;
and, therefore, that all men are equally entitled to the free exercise of religion, according to the dictates of conscience,
and that it is the mutual duty of all to practice Christian forbearance, love and charity toward each other."
In 1777, Jefferson wrote in his original draft of the Virginia Statute of Religious Freedom:
"Almighty God hath created the mind free, and ... all attempts to influence it by temporal punishments ... tend only to begat habits of hypocrisy and meanness,
and are a departure from the plan of the Holy Author of religion,
who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do, but to extend it by its influence on reason alone."
James Madison made a journal entry, June 12, 1788:
"There is not a shadow of right in the general government to inter-meddle with religion ... The subject is, for the honor of America, perfectly free and unshackled. The government has no jurisdiction over it."
Jefferson explained in his Second Inaugural Address, March 4, 1805:
"In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General Government.
I have therefore undertaken, on no occasion, to prescribe the religious exercise suited to it; but have left them, as the Constitution found them, under the direction and discipline of state and church authorities by the several religious societies."
Jefferson explained to Samuel Miller, January 23, 1808:
"I consider the (Federal) Government of the United States as interdicted (prohibited) by the Constitution from inter-meddling with religious institutions, their doctrines, discipline, or exercises ...
This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the United States (10th Amendment) ..."
He continued:
"Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General government ...
I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines ...
Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets."
On June 7, 1789, Madison introduced the First Amendment in the first session of Congress with the wording:
"The civil rights of none shall be abridged on account of religious belief or worship."
President Madison appointed to the Supreme Court Justice Joseph Story.
Justice Story wrote in his Commentaries on the Constitution of the United States, 1833, Chapter XLIV, "Amendments to the Constitution," Section 991:
"The real object of the First Amendment was, not to countenance, much less advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects."
Samuel Chase, who had been appointed to the Supreme Court by George Washington, wrote in the Maryland case of Runkel v. Winemiller, 1799:
"By our form of government, the Christian religion is the established religion;
and all sects and denominations of Christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty."
(Get the book THE ORIGINAL 13: A Documentary History of Religion in America's First Thirteen States www.AmericanMinute.com)
FIRST AMENDMENT TWISTED?
Ronald Reagan stated in a Q & A Session, October 13, 1983:
"The First Amendment has been twisted to the point that freedom of religion is in danger of becoming freedom from religion."
QUESTION: How did the interpretation of the First Amendment get twisted?
Below is an extended explanation of its evolution.
Persecuted Europeans fled to the colonies in America. Once here, they set up colonial governments which tended to grant religious liberty only to their own specific denominations.
In the decision Engel v. Vitale, 1962, Supreme Court Justice Hugo Black wrote:
"Groups which had most strenuously opposed the established Church of England ... passed laws making their own religion the official religion of their respective colonies."
When the Revolutionary War began, colonists had to learn to work together.
Afterwards, they tolerated each other, though the population was still predominately Christian.
The fear was that one Christian denomination might be given preference over the others and be chosen as the official national denomination, as European nations did.
Supreme Court Justice John Paul Stevens admitted in Wallace v. Jaffree, 1985:
"At one time it was thought that this right merely proscribed (prohibited) the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith."
Like dropping a pebble in a pond and the ripples go out, individual States began to expand religious liberty at their own speeds:
- from the particular Christian denomination that founded each colony;
- to all Protestants;
- then to Catholics;
- then to new & sometimes more liberal Christian denominations;
- then to Jews;
- then to monotheists;
- then to polytheists;
- then to atheists, pagans, occultic, anti-religious, LGBTQ, fundamental Islamists, and aggressively anti-Christian.
After the Constitution went into effect, the original States ratified the Bill of Rights - the First Ten Amendments - which were specifically intended to limit the power of the new Federal government.
The First Amendment begins:
"CONGRESS shall make no law respecting an establishment of religion OR PROHIBITING THE FREE EXERCISE THEREOF ..."
Let us examine the meaning of each word and phrase in the First Amendment:
CONGRESS
The word "Congress" meant the "Federal" Congress - the one branch out of the three which makes laws. Article One: "All legislative powers ... shall be vested in a Congress ... Bills ... shall originate in the House."
SHALL MAKE NO LAW
"Shall make no law" meant the Federal Congress could not introduce, debate, vote on or send to the President any bill respecting an establishment of religion.
The founders did not foresee that Federal Courts would usurp power and effectively make laws from the bench, or that Presidents would effectively make laws through Executive Orders and regulations.
Had they anticipated that this would happen, they likely would have worded the phrase: "Congress, the Courts and the President, shall make no law ..."
RESPECTING
The word "respecting" meant "concerning" or "pertaining to." It was simply telling the Federal government to keep its "HANDS OFF" all religious issues.
When the topic of religion came before the Federal government, the correct constitutional response was to be nothing, as the Federal government was not given jurisdiction on that issue - neither for nor against.
Religion was under each individual States' jurisdiction.
ESTABLISHMENT
"Establishment" did not mean "acknowledgment." It did not mean the mere mentioning of God, Judeo-Christian beliefs, or prayers.
Establishment was a clearly understood term. as nearly every country in Europe, as well as most of the colonies, had establishments of religion.
It meant that one particular Christian denomination had its organization, hierarchy and staff structure recognized exclusively by the government in preference to all other Christian denominations.
At the time of America's independence, most European countries had some kind of " established church":
- England had established the Anglican Church;
- Sweden had established the Lutheran Church;
- Scotland had established the Church of Scotland;
- Holland had established the Dutch Reformed Church;
- Russia had established the Russian Orthodox Church;
- Serbia had established the Serbian Orthodox Church;
- Romania had established the Romanian Orthodox Church;
- Greece had established the Greek Orthodox Church;
- Bulgaria had established the Bulgarian Orthodox Church;
- Finland had established the Finnish Orthodox Church;
- Ethiopia had established the Ethiopian Orthodox Tewahedo Church;
- Switzerland had established Calvin's Ecclesiastical Ordinances; and
- Italy, Spain, France, Poland, Austria, Mexico, Costa Rica, Liechtenstein, Malta, Monaco, Vatican City had established the Roman Catholic Church.
The attitude of the original 13 States was that they did not want the new Federal Government to follow the pattern of these other nations and set up one particular Christian denomination's headquarters in the Capitol.
Allegorically, they did not want a Federal "Walmart" Church to come into town and put out of business their local State's "mom & pop" denominations.
There was a distinct difference between "general" Christianity and Christianity "with an established church."
The U.S. Supreme Court's Church of the Holy Trinity v. United States (1892) cited Pennsylvania's Updegraph v. The Commonwealth (1824):
"Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; Christianity, without the spiritual artillery of European countries;
for this Christianity was one of the considerations of the royal charter, and the very basis of its great founder, William Penn;
not Christianity founded on any particular religious tenets; not Christianity with an established church, and tithes, and spiritual courts;
but Christianity with liberty of conscience to all men."
Continuing the examination of the phrases in the First Amendment is:
OR PROHIBITING THE FREE EXERCISE THEREOF.
To make the purpose of the First Amendment unquestionably clear, they went on to state that the Federal Congress could make no laws "PROHIBITING THE FREE EXERCISE" of religion.
Ronald Reagan stated in a Radio Address, 1982:
"Founding Fathers ... enshrined the principle of freedom of religion in the First Amendment ...
The purpose of that Amendment was to protect religion from the interference of government and to guarantee, in its own words, 'the free exercise of religion.'"
RELIGION UNDER STATES
Like dealing a deck of cards, the States dealt to the Federal Government jurisdiction over relatively few things, namely, providing for the common defense and regulating interstate commerce.
The rest of the cards, especially laws governing personal behavior, were held by the States.
Justice Joseph Story wrote in his Commentaries on the Constitution, 1833:
"The whole power over the subject of religion is left exclusively to the State Governments, to be acted upon according to their own sense of justice and the State Constitutions."
Just as today:
- some States allow the selling of marijuana & others do not;
- some States allow minors to consume alcohol & other States do not;
- some States have smoking bans & others do not;
- some States allow gambling & others do not;
- some States allow prostitution (Nevada & formerly Rhode Island) & the rest do not;
at the time the Constitution and Bill of Rights were ratified
- some States allowed more religious freedom, such as Pennsylvania & Rhode Island, & other States, such as Connecticut & Massachusetts, did not.
- But it was up to the people in each State to decide.
Congressman James Meacham of Vermont gave a House Judiciary Committee report, March 27, 1854:
"At the adoption of the Constitution, we believe every State -- certainly ten of the thirteen -- provided as regularly for the support of the Church as for the support of the Government."
WHEN DID THINGS CHANGE?
Charles Darwin's theory that species could evolve inspired a political theorist named Herbert Spencer, who coined the term "survival of the fittest."
Spencer proposed that the theory of evolution could influence other areas of academia, including law.
This was notably done by Supreme Court Justice Oliver Wendell Holmes, Jr., who developed a theory of "legal realism," which, according to his biographer:
"... shook the little world of lawyers and judges who had been raised on Blackstone's theory that the law, given by God Himself, was immutable and eternal and judges had only to discover its contents.
It took some years for them to come around to the view that the law was flexible, responsive to changing social and economic climates."
Holmes' biographer Liva Baker continued in The Justice from Beacon Hill: The Life & Times of Oliver Wendell Holmes, 1991:
"Holmes had ... broken new intellectual trails ... demonstrating that the corpus of the law was neither ukase (an edict) from God nor derived from Nature, but ... was a constantly evolving thing, a response to the continually developing social and economic environment."
Darwin's theory also influenced Harvard Law Dean Christopher Columbus Langdell to develop the "case precedent" method of practicing law.
Harvard was the only law school in the nation that taught this method, as all others taught students to study the intentions of the founders.
Langdell introduction of the "case precedent" theory occurred at the time the 14th Amendment was passed in 1868 - an amendment introduced by Republicans in Congress to guarantee rights to freed slaves in the racist Democrat South.
The evolutionary "case-precedent" method provided a convenient way to side-step the Constitutional means of changing the Constitution through the Amendment process, a process which preserved government "of the people," as it required a 2/3's of the House & Senate, or 2/3's of the States, to call for the Amendment, and 3/4's of States to ratify it.
Like opening a box of chocolates, activist Justices creatively employed evolutionary "legal realism" and "case precedent" methods to use the 14th Amendment and the Commerce Clause as tools to take jurisdiction away from States over issues such as:
- unions,
- strikes,
- railroads,
- farming,
- polygamy,
- freedom of speech,
- freedom of the press,
- freedom of assembly, and eventually,
- freedom of religion.
It was much easier the change the definition of a few words within the Constitution than to change the views of the majority of the people.
Freedom of religion was under each individual State's jurisdiction until the administration of Franklin D. Roosevelt.
Roosevelt was elected President four times.
His 12 years in office concentrated power in the Federal Government on an unprecedented scale, with its accompanying cronyism and entrenched interests.
After FDR, the 22nd Amendment was passed limiting all future Presidents to only two terms.
In 1937, FDR nominated Hugo Black to be an Associate Justice on the Supreme Court.
Hugo Black had never served as a judge before in his life, other than one year as a police court judge in Birmingham.
He was a Democrat Senator from Alabama, and former KKK member.
Like FDR, Justice Black concentrated power in the Federal Government by writing decisions taking jurisdiction away from the States, specifically in the area of religion.
He did this by simply inserting the phrase "neither a State" in his 1947 Everson v Board of Education decision:
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another."
If Black would have just written that the Federal Government was limited, he would have been accurate, but his insertion of "neither a state" ignored numerous references in State Constitutions regarding religious establishments.
The Legislative Reference Service of the Library of Congress prepared The Constitution of the United States of America-Analysis and Interpretation (Edward S. Corwin, editor, U.S. Government Printing Office, Washington, 1953, p. 758), which stated:
"In his Commentaries on the Constitution, 1833, Justice Joseph Story asserted that the purpose of the First Amendment was not to discredit the then existing State establishments of religion, but rather 'to exclude from the National Government all power to act on the subject.'"
Justice Potter Stewart reiterated this (Abington Township v. Schempp, dissent, 1963):
"As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government ...
The Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments."
This was the original understanding, as demonstrated by the various North Carolina's Constitution, such as in 1835, Article 32:
"That no person, who shall deny the being of God or the truth of the Christian religion, or the Divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office."
This was in effect in North Carolina till 1868, when the requirement was simply a belief in "the being of Almighty God").
Justice Black ignored Maryland's Constitution of 1851, Article 34:
"That no other test or qualification ought to be required, on admission to any office ... than such oath of office as may be prescribed by this Constitution ... and a declaration of belief in the Christian religion; and if the party shall profess to be a Jew, the declaration shall be of his belief in a future state of rewards and punishments."
In 1867, Maryland's Constitution changed the requirement to simply a "belief in the existence of God."
Justice Black may not have done this intentionally, he may have just been unaware of history.
Professor Daniel Dreisbach of the Department of Justice, Law & Society at American University in Washington, D.C., revealed that it was not until AFTER Hugo Black issued his Everson opinion did he instruct his law clerk to look up the debates of the First Congress which passed the First Amendment.
Dreisbach wrote Thomas Jefferson and the Wall of Separation between Church and State (New York University Press, 2002):
"Significantly, Hugo Black's biographer reported that the justice did not peruse the proceedings of the First Congress, which debated the provision now known as the First Amendment until 'after Everson was decided.'"
(Get the book Backfired: A Nation founded for Religious Tolerance No Longer Tolerates the Religion of Its Founders www.AmericanMinute.com)
In essence, Justice Hugo Black transformed the purpose of the First Amendment's "establishment clause" by taking the handcuffs off the Federal government and placing them on the State governments.
DEFINITION OF "RELIGION"
After Hugo Black's opinion, Federal Courts began evolving and broadening the definition of "religion" away from that originally used by George Mason and James Madison in the Virginia Declaration of Rights, 1776:
"Religion ... the duty we owe our Creator and the manner of discharging it."
Once religion was taken out of states' jurisdiction and put under Federal jurisdiction, a rapid progression occurred, as seen in several cases.
"ETHICAL" CONSIDERED RELIGION
In 1957, the IRS denied tax-exempt status to an "ethical society" stating it did not qualify as a 501(c)3 tax-exempt "church" or "religious society."
The case went to the Supreme Court, where Justice Warren Burger wrote in Washington Ethical Society v. District of Columbia (1957):
"We hold on this record and under the controlling statutory language petitioner (The Washington Ethical Society) qualifies as 'a religious corporation or society' ...
It is incumbent upon Congress to utilize this broad definition of religion in all its legislative actions bearing on the support or non-support of religion, within the context of the 'no-establishment' clause of the First Amendment."
"SECULAR HUMANISM" CONSIDERED RELIGION
In 1961, Roy Torcaso wanted to be a notary public in Maryland, but did not want to make "a declaration of belief in the existence of God," as required by Maryland's State Constitution of 1867, Article 37.
In the Supreme Court case Torcaso v Watkins (1961), Justice Hugo Black included a footnote which has been cited authoritatively in subsequent cases:
"Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others."
Justice Scalia wrote in Edwards v. Aguillard (1987):
"In Torcaso v. Watkins, 367 U.S. 488, 495, n. 11 (1961), we did indeed refer to 'SECULAR HUMANISM' as a 'religion.'"
"SINCERE AND MEANINGFUL BELIEF" CONSIDERED RELIGION
During the Vietnam War, Mr. Seeger said he could not affirm or deny the existence of a Supreme Being and wanted to be a draft-dodger, claiming to be a conscientious objector under the Universal Military Training and Service Act, Section 6(j) that allowed exemptions for "religious training and belief."
In United States v Seeger, (1965), U.S. Supreme Court Justice Tom Clark stated:
"The test of religious belief within the meaning in Section 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption."
"BELIEFS ABOUT RIGHT AND WRONG" CONSIDERED RELIGION
Another draft-dodger case involved Elliot Welsh. The U.S. Supreme Court, in Welsh v. United States (1970), decided that belief in a "deity" is not necessary to be "religious":
"Having decided that all religious conscientious objectors were entitled to the exemption, we faced the more serious problem of determining which beliefs were 'religious' within the meaning of the statute ...
Determining whether the registrant's beliefs are religious is whether these beliefs play the role of religion and function as a religion in the registrant's life ...
Because his beliefs function as a religion in his life, such an individual is as much entitled to a 'religious' conscientious objector exemption under Section 6(j) as is someone who derives his conscientious opposition to the war from traditional religious convictions ..."
Welsh v. U.S. continued:
"We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers ...
A registrant's conscientious objection to all war is 'religious' within the meaning Section 6(j) if this opposition stems from the registrant's moral, ethical, or religious beliefs about what is right and wrong and these beliefs are held with the strength of traditional religious convictions."
"ATHEISM" CONSIDERED RELIGION
The 7th Circuit Court of Appeals, (W.D. WI) decision in Kaufman v. McCaughtry, August 19, 2005, stated:
"A religion need not be based on a belief in the existence of a supreme being ... Atheism may be considered ... religion ... 'Atheism is indeed a form of religion ...'
The Supreme Court has recognized atheism as equivalent to a 'religion' for purposes of the First Amendment ...
The Court has adopted a broad definition of 'religion' that includes non-theistic and atheistic beliefs, as well as theistic ones ...
Atheism is Kaufman's religion, and the group that he wanted to start was religious in nature even though it expressly rejects a belief in a supreme being."
INSTEAD OF AMENDMENTS, CHANGE CONSTITUTION WITH "CRUCIBLE OF LITIGATION"
Overlooking that the Constitution is only to be changed by Amendments voted in by the majority of the people, the Supreme Court admitted in Wallace v Jaffree (472 U.S. 38, 1985) that the original meaning of the First Amendment was modified "in the crucible of litigation," a term not mentioned in the Constitution:
"At one time it was thought that this right merely proscribed (prohibited) the preference of one Christian sect over another, but would not require equal respect for the consciences of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism.
But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all."
Federal Courts effectively usurped the Amendment process and used the novel "crucible of litigation" to broaden and evolve the definition of "religion" from "duty we owe to our Creator, and manner of discharging it," to include "ethical," "secular humanism," "a sincere and meaningful belief," "beliefs about right and wrong," and "atheism."
Currently, so as not to prefer one "religion" over another, courts have prohibited God.
Ironically, though, by prohibiting God the courts are effectively establishing -- by their own definition -- the religion of secular atheism in exactly the way the First Amendment was intended to prevent.
This was warned against by U.S. Supreme Court Justice Potter Stewart in his dissent in Abington Township v. Schempp, 1963:
"The state may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to religion, thus 'preferring those who believe in no religion over those who do believe' ...
Refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism."
Ronald Reagan referred to this decision in a radio address, February 25, 1984:
"Supreme Court Justice Potter Stewart noted if religious exercises are held to be impermissible activity in schools, religion is placed at an artificial and state-created disadvantage.
Permission for such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit them is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism."
U.S. District Court, Crockett v. Sorenson, W.D. Va,. 1983:
"The First Amendment was never intended to insulate our public institutions from any mention of God, the Bible or religion. When such insulation occurs, another religion, such as secular humanism, is effectively established."
Reagan stated in a Radio Address, 1982:
"The Constitution was never meant to prevent people from praying; its declared purpose was to protect their freedom to pray."
Reagan stated in a Ceremony for Prayer in Schools, September 25, 1982:
"In the last two decades we've experienced an onslaught of such twisted logic that if Alice were visiting America, she might think she'd never left Wonderland.
We're told that it somehow violates the rights of others to permit students in school who desire to pray to do so. Clearly, this infringes on the freedom of those who choose to pray ...
To prevent those who believe in God from expressing their faith is an outrage."
It may be just a coincidence, but the ACLU's agenda is similar to the Communist agenda, as read into the Congressional Record by Congressman Albert S. Herlong, Jr., of Florida, January 10, 1963 (Vol 109, 88th Congress, 1st Session, Appendix, pp. A34-A35):
"Eliminate prayer or any phase of religious expression in the schools on the ground that it violates the principle of 'separation of church and state.'"
Judge Richard Suhrheinrich stated in ACLU v Mercer County, 6th Circuit Court of Appeals, December 20, 2005:
"The ACLU makes repeated reference to 'the separation of church and state.' This extra-constitutional construct has grown tiresome.
The First Amendment does not demand a wall of separation between church and state. Our nation's history is replete with governmental acknowledgment and in some case, accommodation of religion."
In Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 760 (1973), the Court stated:
"This Nation's history has not been one of entirely sanitized separation between Church and State. It has never been thought either possible or desirable to enforce a regime of total separation."
The Court stated in Lemon v. Kurtzman, 403 U.S. 602 (1971):
"Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense."
The Supreme Court stated in Lynch v Donnelly, 1984:
"The Constitution does not 'require complete separation of church and state'... The concept of a 'wall' of separation is a ... figure of speech ... but the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state."
In the U.S. Supreme Court decision, McCullum v Board of Education, it stated:
"Rule of law should not be drawn from a figure of speech."
Associate Justice William Rehnquist wrote in the U.S. Supreme Court case Wallace v. Jafree, 1985, dissent, 472 U. S., 38, 99:
"The 'wall of separation between church and state' is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.
It is impossible to build sound constitutional doctrine upon a mistaken understanding of Constitutional history ... The establishment clause had been expressly freighted with Jefferson's misleading metaphor for nearly forty years ...
There is simply no historical foundation for the proposition that the framers intended to build a wall of separation ... Recent court decisions are in no way based on either the language or intent of the framers ...
But the greatest injury of the 'wall' notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights."
Justice Potter Stewart wrote in Engle v Vitale, 1962, dissent:
"The Court ... is not aided ... by the ... invocation of metaphors like the 'wall of separation,' a phrase nowhere to be found in the Constitution."
Justice William O'Douglas wrote in Zorach v Clausen, 1952:
"The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State ...
We find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence ...
We cannot read into the Bill of Rights such a philosophy of hostility to religion."
Reagan told the Annual Convention of the National Religious Broadcasters, January 30, 1984:
"I was pleased last year to proclaim 1983 the Year of the Bible.
But, you know, a group called the ACLU severely criticized me for doing that. Well, I wear their indictment like a badge of honor."
There is freedom for all religions in America, but sharia Islam is not just a religion; it is also a political and military system which feels it has a divine mandate to subdue or eliminate all other religions.
Groups hostile to the Judeo-Christian values of America's founders, such as aggressive LGBT activists or the fundamental Islamist brotherhood, endeavor to use the newly evolved "broad definition of religion" to take liberties away from the majority of Americans -- liberties the First Amendment, as well as Jefferson's Virginia Statute of Religious Freedom, were intended to guarantee?
Dwight Eisenhower is quoted in the TIME Magazine article, "Eisenhower on Communism," October 13, 1952:
"The Bill of Rights contains no grant of privilege for a group of people to destroy the Bill of Rights.
A group -- like the Communist conspiracy -- dedicated to the ultimate destruction of all civil liberties, cannot be allowed to claim civil liberties as its privileged sanctuary from which to carry on subversion of the Government."
Reagan worded it differently on the National Day of Prayer, May 6, 1982:
"Well-meaning Americans in the name of freedom have taken freedom away. For the sake of religious tolerance, they've forbidden religious practice."
Vice-President Mike Pence stated to graduates at Liberty University, May 11, 2019:
"The loudest voices for tolerance today have little tolerance for traditional Christian beliefs ...
You're going to be asked not just to tolerate things that violate your faith; you're going to be asked to endorse them. You're going to be asked to bow down to the idols of the popular culture."
Reagan stated at an Ecumenical Prayer Breakfast, August 23, 1984:
"The frustrating thing is that those who are attacking religion claim they are doing it in the name of tolerance and freedom and open-mindedness. Question: Isn't the real truth that they are intolerant of religion?"
Did Jefferson, author of the Virginia Statute of Religious Freedom, intend to outlaw the acknowledgment of God and limit students, teachers, coaches, chaplains, schools, organizations, and communities from public religious expression?
Did Jefferson intend to force the Little Sisters of the Poor to violate their consciences and support abortion?
Did he intend to force cake bakers or wedding photographers who believe in natural marriage to violate their consciences or be put out of business?
President Donald J. Trump proclaimed January 16, 2018:
"Our Constitution and laws guarantee Americans the right not just to believe as they see fit, but to freely exercise their religion.
Unfortunately, not all have recognized the importance of religious freedom, whether by threatening tax consequences for particular forms of religious speech, or forcing people to comply with laws that violate their core religious beliefs without sufficient justification ...
I addressed these issues in an Executive Order that helps ensure Americans are able to follow their consciences without undue Government interference ...
No American - whether a nun, nurse, baker, or business owner - should be forced to choose between the tenets of faith or adherence to the law."
On RELIGIOUS FREEDOM DAY, Americans remember the passage of Jefferson's Statute of Virginia for Religious Freedom, which stated:
"To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical ...
That therefore the proscribing any citizen as unworthy the public confidence, by laying upon him an incapacity ... unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages, to which ... he has a natural right ...
That to suffer the civil magistrate to intrude his powers into the field of opinion ... is a dangerous fallacy which at once destroys all religious liberty
because he being of course judge of that tendency will make his opinions the rule of judgment and approve or condemn the sentiments of others only as they shall square with or differ from his own ...
Be it enacted by General Assembly that no man ... shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief,
but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities."
Ronald Reagan addressed the Alabama State Legislature, March 15, 1982:
"The First Amendment of the Constitution was not written to protect the people of this country from religious values; it was written to protect religious values from government tyranny."
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(Get William J. Federer's book Backfired: A Nation founded for Religious Tolerance No Longer Tolerates the Religion of Its Founders www.AmericanMinute.com)
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UNITED STATES SUPREME COURT JUSTICE REHNQUIST'S DISSENT
IN WALLACE V. JAFFREE (1985)
[UNITED STATES NOT FOUNDED ON ABSOLUTE CHURCH-STATE SEPARATION]
[U.S. Supreme Court Justice William Rehnquist's Dissent in Wallace v. Jaffree (1985). Category: America's Christian Heritage. Contains the history of the framing of the First Amendment Religion Clauses, including the significant role played by James Madison; also contains most of the text of George Washington's Thanksgiving Proclamation of 1789 and a history of the role Elias Boudinot played in proposing that proclamation. A historical look at the "mind of the Framers" of the First Amendment--Just what did they intend by creating the Religion Clauses? The chief Framer, James Madison, merely had in mind that the United States Government should not establish a national religion. The Religion Clauses were NOT intended to be used to build a "wall of separation between church and state"! Madison's viewpoint echoes a similar view expressed in William Cooper's election sermon of 1740, preached at the request of Governor Jonathan Belcher. Thus, America's Founding Fathers drafted the First Amendment Religion Clauses against a Christian background as prevalent in the nation as it was in 1740 during Governor Belcher's administrations.]
Justice Rehnquist's Dissent in WALLACE V. JAFFREE (1985)
United States Supreme Court
WALLACE V. JAFFREE
472 U.S. 38, 105 S.Ct. 2479 (1985)
Nos. 83-812, 83-929.
Argued Dec. 4, 1984.
Decided June 4, 1985.
* * * * *
[All court opinions except for Justice Rehnquist's dissent have been omitted.]
* * * * *
Justice REHNQUIST, dissenting.
Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 512, 91 L.Ed. 711 (1947), summarized its exegesis of Establishment Clause doctrine thus:
"In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.' Reynolds v. United States, [98 U.S. 145, 164, 25 L.Ed. 244 (1879)]."
This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." 8 Writings of Thomas Jefferson 113 (H. Washington ed. 1861).(1)
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.
Jefferson's fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did play as large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and State."
During the debates in the Thirteen Colonies over ratification of the Constitution, one of the arguments frequently used by opponents of ratification was that without a Bill of Rights guaranteeing individual liberty the new general Government carried with it a potential for tyranny. The typical response to this argument on the part of those who favored ratification was that the general Government established by the Constitution had only delegated powers, and that these delegated powers were so limited that the Government would have no occasion to violate individual liberties. This response satisfied some, but not others, and of the 11 Colonies which ratified the Constitution by early 1789, 5 proposed one or another amendments guaranteeing individual liberty. Three--New Hampshire, New York, and Virginia--included in one form or another a declaration of religious freedom. See 3 J. Elliot, Debates on the Federal Constitution 659 (1891); 1 id., at 328. Rhode Island and North Carolina flatly refused to ratify the Constitution in the absence of amendments in the nature of a Bill of Rights. 1 id., at 334; 4 id., at 244. Virginia and North Carolina proposed identical guarantees of religious freedom:
"[A]ll men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established, by law, in preference to others." 3 id., at 659; 4 id., at 244.(2)
On June 8, 1789, James Madison rose in the House of Representatives and "reminded the House that this was the day that he had heretofore named for bringing forward amendments to the Constitution." 1 Annals of Cong. 424. Madison's subsequent remarks in urging the House to adopt his drafts of the proposed amendments were less those of a dedicated advocate of the wisdom of such measures than those of a prudent statesman seeking the enactment of measures sought by a number of his fellow citizens which could surely do no harm and might do a great deal of good. He said, inter alia:
"It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who had been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished." Id., at 431-432.
The language Madison proposed for what ultimately became the Religion Clauses of the First Amendment was this:
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." Id., at 434.
On the same day that Madison proposed them, the amendments which formed the basis for the Bill of Rights were referred by the House to a Committee of the Whole, and after several weeks' delay were then referred to a Select Committee consisting of Madison and 10 others. The Committee revised Madison's proposal regarding the establishment of religion to read:
"[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed." Id., at 729.
The Committee's proposed revisions were debated in the House on August 15, 1789. The entire debate on the Religion Clauses is contained in two full columns of the "Annals," and does not seem particularly illuminating. See id., at 729-731. Representative Peter Sylvester of New York expressed his dislike for the revised version, because it might have a tendency "to abolish religion altogether." Representative John Vining suggested that the two parts of the sentence be transposed; Representative Elbridge Gerry thought the language should be changed to read "that no religious doctrine shall be established by law." Id., at 729. Roger Sherman of Connecticut had the traditional reason for opposing provisions of a Bill of Rights--that Congress had no delegated authority to "make religious establishments"--and therefore he opposed the adoption of the amendment. Representative Daniel Carroll of Maryland thought it desirable to adopt the words proposed, saying "[h]e would not contend with gentlemen about the phraseology, his object was to secure the substance in such a manner as to satisfy the wishes of the honest part of the community."
Madison then spoke, and said that "he apprehended the meaning of the words to be, that 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." Id., at 730. He said that some of the state conventions had thought that Congress might rely on the Necessary and Proper Clause to infringe the rights of conscience or to establish a national religion, and "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." Ibid.
Representative Benjamin Huntington then expressed the view that the Committee's language might "be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia; but others might find it convenient to put another construction upon it." Huntington, from Connecticut, was concerned that in the New England States, where state-established religions were the rule rather than the exception, the federal courts might not be able to entertain claims based upon an obligation under the bylaws of a religious organization to contribute to the support of a minister or the building of a place of worship. He hoped that "the amendment would be made in such a way as to secure the rights of conscience, and a free exercise of the rights of religion, but not to patronize those who professed no religion at all." Id., at 730-731.
Madison responded that the insertion of the word "national" before the word "religion" in the Committee version should satisfy the minds of those who had criticized the language. "He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought that if the word 'national' was introduced, it would point the amendment directly to the object it was intended to prevent." Id., at 731. Representative Samuel Livermore expressed himself as dissatisfied with Madison's proposed amendment, and thought it would be better if the Committee language were altered to read that "Congress shall make no laws touching religion, or infringing the rights of conscience." Ibid.
Representative Gerry spoke in opposition to the use of the word "national" because of strong feelings expressed during the ratification debates that a federal government, not a national government, was created by the Constitution. Madison thereby withdrew his proposal but insisted that his reference to a "national religion" only referred to a national establishment and did not mean that the Government was a national one. The question was taken on Representative Livermore's motion, which passed by a vote of 31 for and 20 against. Ibid.
The following week, without any apparent debate, the House voted to alter the language of the Religion Clauses to read "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience." Id., at 766. The floor debates in the Senate were secret, and therefore not reported in the Annals. The Senate on September 3, 1789, considered several different forms of the Religion Amendment, and reported this language back to the House:
"Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion." C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 130 (1964).
The House refused to accept the Senate's changes in the Bill of Rights and asked for a conference; the version which emerged from the conference was that which ultimately found its way into the Constitution as a part of the First Amendment.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."
The House and the Senate both accepted this language on successive days, and the Amendment was proposed in this form.
On the basis of the record of these proceedings in the House of Representatives, James Madison was undoubtedly the most important architect among the Members of the House of the Amendments which became the Bill of Rights, but it was James Madison speaking as an advocate of sensible legislative compromise, not as an advocate of incorporating the Virginia Statute of Religious Liberty into the United States Constitution. During the ratification debate in the Virginia Convention, Madison had actually opposed the idea of any Bill of Rights. His sponsorship of the Amendments in the House was obviously not that of a zealous believer in the necessity of the Religion Clauses, but of one who felt it might do some good, could do no harm, and would satisfy those who had ratified the Constitution on the condition that Congress propose a Bill of Rights.(3) His original language "nor shall any national religion be established" obviously does not conform to the "wall of separation" between church and State idea which latter-day commentators have ascribed to him. His explanation on the floor of the meaning of his language--"that Congress should not establish a religion, and enforce the legal observation of it by law" is of the same ilk. When he replied to Huntington in the debate over the proposal which came from the Select Committee of the House, he urged that the language "no religion shall be established by law" should be amended by inserting the word "national" in front of the word "religion."
It seems indisputable from these glimpses of Madison's thinking, as reflected by actions on the floor of the House in 1789, that he saw the Amendment as designed to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of government between religion and irreligion. Thus the Court's opinion in Everson--while correct in bracketing Madison and Jefferson together in their exertions in their home State leading to the enactment of the Virginia Statute of Religious Liberty--is totally incorrect in suggesting that Madison carried these views onto the floor of the United States House of Representatives when he proposed the language which would ultimately become the Bill of Rights.
The repetition of this error in the Court's opinion in Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948), and, inter alia, Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962), does not make it any sounder historically. Finally, in Abington School District v. Schempp, 374 U.S. 203, 214, 83 S.Ct. 1560, 1567, 10 L.Ed.2d 844 (1963), the Court made the truly remarkable statement that "the views of Madison and Jefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of our States" (footnote omitted). On the basis of what evidence we have, this statement is demonstrably incorrect as a matter of history.(4) And its repetition in varying forms in succeeding opinions of the Court can give it no more authority than it possesses as a matter of fact; stare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history.
None of the other Members of Congress who spoke during the August 15th debate expressed the slightest indication that they thought the language before them from the Select Committee, or the evil to be aimed at, would require that the Government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke who concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly. If one were to follow the advice of Justice BRENNAN, concurring in Abington School District v. Schempp, supra, at 236, 83 S.Ct., at 1578, 10 L.Ed.2d 844, and construe the Amendment in the light of what particular "practices . . . challenged threaten those consequences which the Framers deeply feared; whether, in short, they tend to promote that type of interdependence between religion and state which the First Amendment was designed to prevent," one would have to say that the First Amendment Establishment Clause should be read no more broadly than to prevent the establishment of a national religion or the governmental preference of one religious sect over another.
The actions of the First Congress, which reenacted the Northwest Ordinance for the governance of the Northwest Territory in 1789, confirm the view that Congress did not mean that the Government should be neutral between religion and irreligion. The House of Representatives took up the Northwest Ordinance on the same day as Madison introduced his proposed amendments which became the Bill of Rights; while at that time the Federal Government was of course not bound by draft amendments to the Constitution which had not yet been proposed by Congress, say nothing of ratified by the States, it seems highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals. The Northwest Ordinance, 1 Stat. 50, reenacted the Northwest Ordinance of 1787 and provided that "[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Id., at 52, n. (a). Land grants for schools in the Northwest Territory were not limited to public schools. It was not until 1845 that Congress limited land grants in the new States and Territories to nonsectarian schools. 5 Stat. 788; C. Antieau, A. Downey, & E. Roberts, Freedom From Federal Establishment 163 (1964).
On the day after the House of Representatives voted to adopt the form of the First Amendment Religion Clauses which was ultimately proposed and ratified, Representative Elias Boudinot proposed a resolution asking President George Washington to issue a Thanksgiving Day Proclamation. Boudinot said he "could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice, in returning to Almighty God their sincere thanks for the many blessings he had poured down upon them." 1 Annals of Cong. 914 (1789). Representative Aedanas Burke objected to the resolution because he did not like "this mimicking of European customs"; Representative Thomas Tucker objected that whether or not the people had reason to be satisfied with the Constitution was something that the States knew better than the Congress, and in any event "it is a religious matter, and, as such, is proscribed to us." Id., at 915. Representative Sherman supported the resolution "not only as a laudable one in itself, but as warranted by a number of precedents in Holy Writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon, after the building of the temple, was a case in point. This example, he thought, worthy of Christian imitation on the present occasion. . . ." Ibid.
Boudinot's resolution was carried in the affirmative on September 25, 1789. Boudinot and Sherman, who favored the Thanksgiving Proclamation, voted in favor of the adoption of the proposed amendments to the Constitution, including the Religion Clauses; Tucker, who opposed the Thanksgiving Proclamation, voted against the adoption of the amendments which became the Bill of Rights.
Within two weeks of this action by the House, George Washington responded to the Joint Resolution which by now had been changed to include the language that the President "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness." 1 J. Richardson, Messages and Papers of the Presidents, 1789-1897, p. 64 (1897). The Presidential Proclamation was couched in these words:
"Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquillity, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted; for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.
"And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best." Ibid.
George Washington, John Adams, and James Madison all issued Thanksgiving Proclamations; Thomas Jefferson did not, saying:
"Fasting and prayer are religious exercises; the enjoining them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it." 11 Writings of Thomas Jefferson 429 (A. Lipscomb ed. 1904).
As the United States moved from the 18th into the 19th century, Congress appropriated time and again public moneys in support of sectarian Indian education carried on by religious organizations. Typical of these was Jefferson's treaty with the Kaskaskia Indians, which provided annual cash support for the Tribe's Roman Catholic priest and church.(5) It was not until 1897, when aid to sectarian education for Indians had reached $500,000 annually, that Congress decided thereafter to cease appropriating money for education in sectarian schools. See Act of June 7, 1897, 30 Stat. 62, 79; cf. Quick Bear v. Leupp, 210 U.S. 50, 77-79, 28 S.Ct. 690, 694-696, 52 L.Ed. 954 (1908); J. O'Neill, Religion and Education Under the Constitution 118-119 (1949). See generally R. Cord, Separation of Church and State 61-82 (1982). This history shows the fallacy of the notion found in Everson that "no tax in any amount" may be levied for religious activities in any form. 330 U.S., at 15-16, 67 S.Ct., at 511-512.
Joseph Story, a Member of this Court from 1811 to 1845, and during much of that time a professor at the Harvard Law School, published by far the most comprehensive treatise on the United States Constitution that had then appeared. Volume 2 of Story's Commentaries on the Constitution of the United States 630-632 (5th ed. 1891) discussed the meaning of the Establishment Clause of the First Amendment this way:
"Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration [First Amendment], the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
. . . . .
"The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government. It thus cut off the means of religious persecution (the vice and pest of former ages), and of the subversion of the rights of conscience in matters of religion, which had been trampled upon almost from the days of the Apostles to the present age. . . ." (Footnotes omitted.)
Thomas Cooley's eminence as a legal authority rivaled that of Story. Cooley stated in his treatise entitled Constitutional Limitations that aid to a particular religious sect was prohibited by the United States Constitution, but he went on to say:
"But while thus careful to establish, protect, and defend religious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. . . ." Id., at * 470--* 471.
Cooley added that
"[t]his public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law; but the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction will incline it also to foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." Id., at *470.
It would seem from this evidence that the Establishment Clause of the First Amendment had acquired a well-accepted meaning: it forbade establishment of a national religion, and forbade preference among religious sects or denominations. Indeed, the first American dictionary defined the word "establishment" as "the act of establishing, founding, ratifying or ordaining," such as in "[t]he episcopal form of religion, so called, in England." 1 N. Webster, American Dictionary of the English Language (1st ed. 1828). The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the "wall of separation" that was constitutionalized in Everson.
Notwithstanding the absence of a historical basis for this theory of rigid separation, the wall idea might well have served as a useful albeit misguided analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been true; in the 38 years since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities,(6) have with embarrassing candor conceded that the "wall of separation" is merely a "blurred, indistinct, and variable barrier," which "is not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 2112, 29 L.Ed.2d 745 (1971); Tilton v. Richardson, 403 U.S. 672, 677-678, 91 S.Ct. 2091, 2095-2096, 29 L.Ed.2d 790 (1971); Wolman v. Walter, 433 U.S. 229, 236, 97 S.Ct. 2593, 2599, 53 L.Ed.2d 714 (1977); Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct. 1355, 1359, 79 L.Ed.2d 745 (1984).
Whether due to its lack of historical support or its practical unworkability, the Everson "wall" has proved all but useless as a guide to sound constitutional adjudication. It illustrates only too well the wisdom of Benjamin Cardozo's observation that "[m]etaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it." Berkey v. Third Avenue R. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926).
But the greatest injury of the "wall" notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights. The "crucible of litigation," ante, at 2487, is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.
The Court has more recently attempted to add some mortar to Everson's wall through the three-part test of Lemon v. Kurtzman, supra, 403 U.S., at 614-615, 91 S.Ct., at 2112, which served at first to offer a more useful test for purposes of the Establishment Clause than did the "wall" metaphor. Generally stated, the Lemon test proscribes state action that has a sectarian purpose or effect, or causes an impermissible governmental entanglement with religion.
Lemon cited Board of Education v. Allen, 392 U.S. 236, 243, 88 S.Ct. 1923, 1926, 20 L.Ed.2d 1060 (1968), as the source of the "purpose" and "effect" prongs of the three-part test. The Allen opinion explains, however, how it inherited the purpose and effect elements from Schempp and Everson, both of which contain the historical errors described above. See Allen, supra, at 243, 88 S.Ct., at 1926. Thus the purpose and effect prongs have the same historical deficiencies as the wall concept itself: they are in no way based on either the language or intent of the drafters.
The secular purpose prong has proven mercurial in application because it has never been fully defined, and we have never fully stated how the test is to operate. If the purpose prong is intended to void those aids to sectarian institutions accompanied by a stated legislative purpose to aid religion, the prong will condemn nothing so long as the legislature utters a secular purpose and says nothing about aiding religion. Thus the constitutionality of a statute may depend upon what the legislators put into the legislative history and, more importantly, what they leave out. The purpose prong means little if it only requires the legislature to express any secular purpose and omit all sectarian references, because legislators might do just that. Faced with a valid legislative secular purpose, we could not properly ignore that purpose without a factual basis for doing so. Larson v. Valente, 456 U.S. 228, 262-263, 102 S.Ct. 1673, 1692-1693, 72 L.Ed.2d 33 (1982) (WHITE, J., dissenting).
However, if the purpose prong is aimed to void all statutes enacted with the intent to aid sectarian institutions, whether stated or not, then most statutes providing any aid, such as textbooks or bus rides for sectarian school children, will fail because one of the purposes behind every statute, whether stated or not, is to aid the target of its largesse. In other words, if the purpose prong requires an absence of any intent to aid sectarian institutions, whether or not expressed, few state laws in this area could pass the test, and we would be required to void some state aids to religion which we have already upheld. E.g., Allen, supra.
The entanglement prong of the Lemon test came from Walz v. Tax Comm'n, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25 L.Ed.2d 697 (1970). Walz involved a constitutional challenge to New York's time-honored practice of providing state property tax exemptions to church property used in worship. The Walz opinion refused to "undermine the ultimate constitutional objective [of the Establishment Clause] as illuminated by history," id., at 671, 90 S.Ct., at 1412, and upheld the tax exemption. The Court examined the historical relationship between the State and church when church property was in issue, and determined that the challenged tax exemption did not so entangle New York with the church as to cause an intrusion or interference with religion. Interferences with religion should arguably be dealt with under the Free Exercise Clause, but the entanglement inquiry in Walz was consistent with that case's broad survey of the relationship between state taxation and religious property.
We have not always followed Walz's reflective inquiry into entanglement, however. E.g., Wolman, supra, 433 U.S., at 254, 97 S.Ct., at 2608. One of the difficulties with the entanglement prong is that, when divorced from the logic of Walz, it creates an "insoluable paradox" in school aid cases: we have required aid to parochial schools to be closely watched lest it be put to sectarian use, yet this close supervision itself will create an entanglement. Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 768-769, 96 S.Ct. 2337, 2355-2356, 49 L.Ed.2d 179 (1976) (WHITE, J., concurring in judgment). For example, in Wolman, supra, the Court in part struck the State's nondiscriminatory provision of buses for parochial school field trips, because the state supervision of sectarian officials in charge of field trips would be too onerous. This type of self-defeating result is certainly not required to ensure that States do not establish religions.
The entanglement test as applied in cases like Wolman also ignores the myriad state administrative regulations properly placed upon sectarian institutions such as curriculum, attendance, and certification requirements for sectarian schools, or fire and safety regulations for churches. Avoiding entanglement between church and State may be an important consideration in a case like Walz, but if the entanglement prong were applied to all state and church relations in the automatic manner in which it has been applied to school aid cases, the State could hardly require anything of church-related institutions as a condition for receipt of financial assistance.
These difficulties arise because the Lemon test has no more grounding in the history of the First Amendment than does the wall theory upon which it rests. The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases, as this Court has slowly come to realize. Even worse, the Lemon test has caused this Court to fracture into unworkable plurality opinions, see n. 6, supra, depending upon how each of the three factors applies to a certain state action. The results from our school services cases show the difficulty we have encountered in making the Lemon test yield principled results.
For example, a State may lend to parochial school children geography textbooks(7)that contain maps of the United States, but the State may not lend maps of the United States for use in geography class.(8) A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable.(9) A State may pay for bus transportation to religious schools(10)but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip.(11) A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U.S. 349, 367, 371, 95 S.Ct. 1753, 1764, 1766, 49 L.Ed.2d 179 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U.S., at 241, 97 S.Ct., at 2602. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school,(12)such as in a trailer parked down the street. Id., at 245, 97 S.Ct., at 2604. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services,(13)but it may not provide funds for teacher-prepared tests on secular subjects.(14) Religious instruction may not be given in public school,(15)but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.(16)
These results violate the historically sound principle "that the Establishment Clause does not forbid governments . . . to [provide] general welfare under which benefits are distributed to private individuals, even though many of those individuals may elect to use those benefits in ways that 'aid' religious instruction or worship." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756, 799, 93 S.Ct. 2955, 2989, 37 L.Ed.2d 948 (1973) (BURGER, C.J., concurring in part and dissenting in part). It is not surprising in the light of this record that our most recent opinions have expressed doubt on the usefulness of the Lemon test.
Although the test initially provided helpful assistance, e.g., Tilton v. Richardson, 403 U.S. 672, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971), we soon began describing the test as only a "guideline," Committee for Public Education & Religious Liberty v. Nyquist, supra, and lately we have described it as "no more than [a] useful signpos[t]." Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 3066, 77 L.Ed.2d 721 (1983), citing Hunt v. McNair, 413 U.S. 734, 741, 93 S.Ct. 2868, 2873, 37 L.Ed.2d 923 (1973); Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). We have noted that the Lemon test is "not easily applied," Meek, supra, 421 U.S., at 358, 95 S.Ct., at 1759, and as Justice WHITE noted in Committee for Public Education v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980), under the Lemon test we have "sacrifice[d] clarity and predictability for flexibility." 444 U.S., at 662, 100 S.Ct., at 851. In Lynch we reiterated that the Lemon test has never been binding on the Court, and we cited two cases where we had declined to apply it. 465 U.S., at 679, 104 S.Ct., at 1362, citing Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983); Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982).
If a constitutional theory has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results, I see little use in it. The "crucible of litigation," ante, at 2487, has produced only consistent unpredictability, and today's effort is just a continuation of "the sisyphean task of trying to patch together the 'blurred, indistinct and variable barrier' described in Lemon v. Kurtzman." Regan, supra, 444 U.S., at 671, 100 S.Ct., at 855 (STEVENS, J., dissenting). We have done much straining since 1947, but still we admit that we can only "dimly perceive" the Everson wall. Tilton, supra. Our perception has been clouded not by the Constitution but by the mists of an unnecessary metaphor.
The true meaning of the Establishment Clause can only be seen in its history. See Walz, 397 U.S., at 671-673, 90 S.Ct., at 1412-1413; see also Lynch, supra, at 673-678, 104 S.Ct., at 1359-1362. As drafters of our Bill of Rights, the Framers inscribed the principles that control today. Any deviation from their intentions frustrates the permanence of that Charter and will only lead to the type of unprincipled decision-making that has plagued our Establishment Clause cases since Everson.
The Framers intended the Establishment Clause to prohibit the designation of any church as a "national" one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the Establishment Clause as against the States via the Fourteenth Amendment in Everson, States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.
The Court strikes down the Alabama statute because the State wished to "characterize prayer as a favored practice." Ante, at 2492. It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from "endorsing" prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.
The State surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in the Establishment Clause of the First Amendment, properly understood, prohibits any such generalized "endorsement" of prayer. I would therefore reverse the judgment of the Court of Appeals.
__________________
1. Reynolds is the only authority cited as direct precedent for the "wall of separation theory." 330 U.S., at 16, 67 S.Ct., at 512. Reynolds is truly inapt; it dealt with a Mormon's Free Exercise Clause challenge to a federal polygamy law.
2. The New York and Rhode Island proposals were quite similar. They stated that no particular "religious sect or society ought to be favored or established by law in preference to others." 1 Elliot's Debates, at 328; id., at 334.
3. In a letter he sent to Jefferson in France, Madison stated that he did not see much importance in a Bill of Rights but he planned to support it because it was "anxiously desired by others . . . [and] it might be of use, and if properly executed could not be of disservice." 5 Writings of James Madison, 271 (G. Hunt ed. 1904).
4. State establishments were prevalent throughout the late 18th and early 19th centuries. See Mass. Const. of 1780, Part 1, Art. III; N. H. Const. of 1784, Art. VI; Md. Declaration of Rights of 1776, Art. XXXIII; R. I. Charter of 1633 (superseded 1842).
5. The treaty stated in part:
"And whereas, the greater part of said Tribe have been baptized and received into the Catholic church, to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion . . . [a]nd . . . three hundred dollars, to assist the said Tribe in the erection of a church." 7 Stat. 79.
From 1789 to 1823 the United States Congress had provided a trust endowment of up to 12,000 acres of land "for the Society of the United Brethren, for propagating the Gospel among the Heathen." See, e.g., ch. 46, 1 Stat. 490. The Act creating this endowment was renewed periodically and the renewals were signed into law by Washington, Adams, and Jefferson.
Congressional grants for the aid of religion were not limited to Indians. In 1787 Congress provided land to the Ohio Company, including acreage for the support of religion. This grant was reauthorized in 1792. See 1 Stat. 257. In 1833 Congress authorized the State of Ohio to sell the land set aside for religion and use the proceeds "for the support of religion . . . and for no other use or purpose whatsoever. . . ." 4 Stat. 618-619.
6. Tilton v. Richardson, 403 U.S. 672, 677, 91 S.Ct. 2091, 2095, 29 L.Ed.2d 790 (1971); Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975) (partial); Roemer v. Maryland Bd. of Public Works, 426 U.S. 736, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976); Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977).
Many of our other Establishment Clause cases have been decided by bare 5-4 majorities. Committee for Public Education & Religious Liberty v. Regan, 444 U.S. 646, 100 S.Ct. 840, 63 L.Ed.2d 94 (1980); Larson v. Valente, 456 U.S. 228, 102 S.Ct. 1673, 72 L.Ed.2d 33 (1982); Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983); Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 29 L.Ed.2d 745 (1984); cf. Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472, 93 S.Ct. 2814, 37 L.Ed.2d 736 (1973).
7. Board of Education v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968).
8. Meek, 421 U.S., at 362-366, 95 S.Ct., at 1761-1763. A science book is permissible, a science kit is not. See Wolman, 433 U.S., at 249, 97 S.Ct., at 2606.
9. See Meek, supra, at 354-355, nn. 3, 4, 362-366, 95 S.Ct., at 1761-1763.
10. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947).
11. Wolman, supra, 433 U.S., at 252-255, 97 S.Ct., at 2608-2609.
12. Wolman, supra, at 241-248, 97 S.Ct., at 2602-2605; Meek, supra, at 352, n. 2, 367-373, 95 S.Ct., at 1756, n. 2, 1764-1767.
13. Regan, 444 U.S., at 648, 657-659, 100 S.Ct., at 844, 848-849.
14. Levitt, 413 U.S., at 479-482, 93 S.Ct., at 2818-2820.
15. Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948).
16. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952).
American Minute with Bill Federer JANUARY 16. Jefferson, Thomas. Jan. 16, 1786, in a bill written by the Committee on Religion, Virginia Assembly; inscribed on the Jefferson Memorial, Washington D.C. H.A. Washington, ed., The Writings of Thomas Jefferson - Being His Autobiography, Correspondence, Reports, Messages, Addresses, & Other Writings, Official & Private, 9 vols. (Jackson: 1859); (Washington: 1853-54); (Philadelphia: 1871), Vol. 8; (NY: Derby), Vol. VIII, p. 454-56. William Taylor Thom, The Struggle for Religious Freedom in Virginia: The Baptists, Johns Hopkins Studies in Historical & Political Science, Herbert B. Adams, ed., (Baltimore: Johns Hopkins, 1900), p. 79. The Annals of America, 20 vols. (Chicago, IL: Encyclopedia Britannica, 1968), Vol. 3, p. 53. Norman Cousins, In God We Trust-The Religious Beliefs & Ideas of the American Founding Fathers (NY: Harper & Brothers, 1958), p. 124. Tim LaHaye, Faith of Our Founding Fathers (Brentwood, TN: Wolgemuth & Hyatt, 1987), pp. 192-3. Thomas Jefferson, 2nd Inaugural Address, March 4, 1805. Thomas Jefferson, Letter to Samuel Miller, Jan. 23, 1808.
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