December 31, 2009

The First Amendment Defended: The Freedom Of Religion

An excerpt from a debate from our very own Chris Dumford and a co-worker. Here is the position as presented to Chris:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


It's perfectly reasonable to interpret those words as an intent for the separation of church and state. There's no getting around that subsequent interpretation by the supreme court carries the weight of the highest law in the land, and congress may ratify an amendment to overturn the court's interpretation. The supreme court is very very powerful as we know and is made more powerful by the current partisan political climate of the era within which we've live. As much as we are a nation of laws and not men, we all suffer from decisions made by people with whom we don't agree. ammendment to the Constitution is without some historical precident. The background to the 1st ammendment is not separation FROM religion, it is in regard to the Federal Government establishing a state church and licensing pastors. This argument was originally taken up be the Virginia Legislature in 1773 as a result of Virginia prosecuting Baptist pastors for preaching without a license. At that time, only Presbyterian and Episcopal pastors were permitted to preach due to the requirement that that they be licenced by the colony of Virginia (and other colonies). James madison took up the fight to allow New Light Preachers (I.e. Baptists) to be permitted to preach without a license, which by the way, they lost their argument. At the time, the great awakening was occurring and preachers such as George Whitefield were preaching especially in New England without a licence. Rhode Island had opened up the colony to non licensed ministers such as John Clarke and Roger Williams, both of which received charters to establish churches from the King of England and to preach without a license (I have personally seen John Clarke's charter). The argument was in regard to anarchy reigning among the people if preachers were permitted to preach without state control. During the Constitutional convention, the anti-Federalists were arguing that a state religion controlled by the Federal Government was not in keeping with a free people (a position held by Jefferson and Madison). The Federalists saw that religion should be controlled by Government. In the end, an agreement was reached following ratification of the Constitution in order to bring the anti-federalists on board, the first ten ammendments would be introduced and ratified to control the power of the Federal Government. Notice that the concept of the divine right of Kings was the established thought at the time. This belief was based on the premise that God had divinely ordained Kings and as such, they stood in the stead of the people in regard to their relationship to God. In other words, it was the belief that Kings could determine how people would be saved and that Kings could indeed determine doctrine and faith. The argument of Jefferson and Madison to the Virginia Legislature prior to the American Revolution was that of the Doctrine of Preisthood of the believer, that is that every man answered to God on his own behalf, and that no man could intervene on anothers behalf. You will see this in jefferson's resonse to the Danbury Baptist Conference. He clearly states that the relationship between God and man was personal (implied, could not be legislated by the Government). The histoical context of the first ammendment clearly did not advocate a secularized government.

On October 7, 1801, a letter was delivered by the Danbury Baptist Church to Jefferson as a result of rumors that Jefferson's administration intended on establishing Presbyterianism as the official state religion (similar to England and Episcopalianism). Here is the Letter which clearly indicates that their understanding at the time was that religion could indeed coexist and partner with government, including the state governments. Notice that they refer to the ancient charter (Magna Carta) and that they recocognize that the understanding is currently that religion can and in at least some cases still was the object of legislation. The reference to destroying the laws of the state was in regard to the different states laws establishing churches and licensing of pastors. here is the letter:

Among the many millions in America and Europe who rejoice in your Election to office; we embrace the first opportunity which we have enjoyd in our collective capacity, since your Inauguration, to express our great satisfaction, in your appointment to the chief Majestracy in the United States; And though our mode of expression may be less courtly and pompious than what many others clothe their addresses with, we beg you, Sir to believe, that none are more sincere.

Our Sentiments are uniformly on the side of Religious Liberty — That Religion is at all times and places a matter between God and individuals — That no man ought to suffer in name, person, or effects on account of his religious Opinions - That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor: But Sir our constitution of government is not specific. Our ancient charter together with the Laws made coincident therewith, were adopted on the Basis of our government, at the time of our revolution; and such had been our Laws & usages, and such still are; that Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degradingacknowledgements, as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those, who seek after power & gain under the pretense of government & Religion should reproach their fellow men — should reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dare not assume the prerogatives of Jehovah and make Laws to govern the Kingdom of Christ.

Sir, we are sensible that the President of the United States, is not the national legislator, and also sensible that the national government cannot destroy the Laws of each State; but our hopes are strong that the sentiments of our beloved President, which have had such genial affect already, like the radiant beams of the Sun, will shine and prevail through all these States and all the world till Hierarchy and Tyranny be destroyed from the Earth. Sir, when we reflect on your past services, and see a glow of philanthropy and good will shining forth in a course of more than thirty years we have reason to believe that America's God has raised you up to fill the chair of State out of that good will which he bears to the Millions which you preside over. May God strengthen you for the arduous task which providence & the voice of the people have cald you to sustain and support you in your Administration against all the predetermined opposition of those who wish to rise to wealth & importance on the poverty and subjection of the people.

And may the Lord preserve you safe from every evil and bring you at last to his Heavenly Kingdom through Jesus Christ our Glorious Mediator.

Signed in behalf of the Association.

Nehh Dodge
Ephram Robbins The Committee
Stephen S. Nelson

The response by Jefferson which included the phrase separation of church and state was directly in context to the establishment of a state church, not in separting Federal Government from religion. Here is his response (remember it is in context to the matter at hand, no more or no less):

To messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.


The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.

Th Jefferson
Jan. 1. 1802.

Historically, the Supreme Court has upheld the Federal Government's advocating religion as a whole. State motto's refer to God (i.e. state of Ohio), state monumnets have references to God, The motto of the United States is "In God we Trust". Historically, the idea of purging God out of the public forum would have been reprehensible to our fore fathers. It was not until 1963 when the Supreme Court removed public prayer from schools that they reversed almost 200 years of precedent.

It is my opinion, that the reason we are in this debate today is that those who are attempting to redefine the intent of our forefathers in establishing the first ammendment, is because there is no teaching today on theology and the influence of theology on our forefather's thinking. Instead, we see secular writers, legislators and judges trying to rule on precedents that they do not understand because they are bowing to the current culture of the populace at large. Thus, we now have judical anarchy. Judges have divorced themselves from the law, especially the intent of the law and nor rule however they want. As a result, the Supreme court no longer interprets law, they make law!

Lastly, when Laws are made or interpreted that either openly violate the Constitution or redefine the intent of the Constitution, we no longer have a body of laws. This is where we are today!


Notice the language of the 1st Ammendment.

1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

According to your argument, this can be interpreted as separation of church and state. Thus the "State" is duty bound to remove all expression of religous nature from the public forum and any state sponsored organization or property is not permitted to have any religious expression. Here is why your understanding does not hold water (nor in my opinion does that of the Supreme Court):

The 1st ammendment goes on to say: "or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

2. Notice that the rest of the praseology of the 1st ammendment is a continuation of the initial phrase which you have undelined. If the underlined phrase is intended to separate the State from religion, then it applies to the entire 1st ammendment, not just the portion which you are inclined to underline. Thus, if the intent of the writers of the Constitution is to be interpreted as separation from religion, then also it frees Congress to spearate themselves from freedom of the press, freedom of speech and allows them to react adversely to free assembly. In essence, Conrgress should purge all such actions from the public forum since we cannot apply one set of standards to one portion of a sentence, and not to all of it. Thus, the current Supreme Court ruling of 1963, should have been argued as an inrepretation against the entire 1st Ammendment, not just a portion of it!

I think that sums it up folks. Unless we understand the Constitution and the historical precedents behind it, how do we ever determine how and why we need to change it or interpret it differently? As Chris points out, pop-culture has infected our view of the Constitution. But, pop-culture is ever changing - would you want your laws and your government based on a culture that changes over and over? If the answer is "yes", then honestly what's the point of law? The Constitution is rock-solid and actually works...if you dare to follow it that is.


  1. The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. Some try to pass off the Supreme Court's decision in Everson v. Board of Education as simply a misreading of Jefferson's letter to the Danbury Baptists. That letter, though, played but a small part in the Court's decision. Indeed, the Court mentioned it only in passing after stating its conclusion based on a lengthy and detailed discussion of the historical context in which the First Amendment was developed. The metaphor was but a handy catch phrase to describe the upshot of its conclusion.

    Perhaps even more than Thomas Jefferson, James Madison influenced the Court's view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to "[s]trongly guard[] . . . the separation between Religion and Government." Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that old habits die hard and that tendencies of citizens and politicians could and sometimes did lead them to entangle government and religion (e.g., "the appointment of chaplains to the two houses of Congress" and "for the army and navy" and "[r]eligious proclamations by the Executive recommending thanksgivings and fasts"), he considered the question whether these were "consistent with the Constitution, and with the pure principle of religious freedom" and responded: "In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion."

    When discussing separation of church and state, it is critical to distinguish between the "public square" and "government." The principle of separation of church and state does not purge religion from the public square--far from it. Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately. The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion.

    As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government. When acting in their individual capacities, they are free to exercise their religions as they please. If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated. While figuring out whether someone is speaking for the government may sometimes be difficult, making the distinction is critical.

    The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to transform our secular government into some form of religion-government partnership should be resisted by every patriot.

  2. (Rebuttal from Chis Dumford, pt.1 with pt.2 below)

    The Aspects of the limitations of the First Amendment to the Constitution regarding the Government's role in religion is not one without precedent. The 1963 decision was one borne out a change in cultural ideology, not one based on the historical precedent of the forefather's understanding of the 1st Amendment. To define the writings of the forefathers outside of their experiences and belief system is one of revisionism. The underlying background to the forefathers’ writings was that of a European model, not a modern secular model. Their writings reflected their separation, if you will, from a national Sect (i.e. Episcopalian or Catholic control of the religious hierarchy in league with the Government, or in some cases control of the government itself). Most of their early writings were influenced by practices such as forcing people to pay taxes to support certain churches such as the British model. Madison's detached memoranda cannot be quoted without its historical context. Notice that Madison is referring directly to this ideology when he writes, regarding Virginia's religious liberty act of 1786 which removed the requirement of Ministers to be licensed by the state and removed the requirement that a tax be paid in order to support Christian churches. In the fourth paragraph, Madison refers directly to this aspect of the Virginia law when he states that there was an attempt to require a tax in order to support Christian churches. Again, in a later paragraph, Madison refers to the various Christian charities openly supported by public taxation in Great Britain. What they saw at stake, was neither the recognition by the Federal Government of religion, nor an allowance of public religion to be expressed in a public or even a government forum. Notice when he discusses the issue of Congressional Chaplains, he does not imply that the Congress be purged of any recognition of God, if you will, but rather that the support of one sect above another is wrong, that is that instead of the Government being secularized, and completely dissected from religion, he refers to the inclusion of all sects. Madison's two caveats regarding Congressional chaplains and Military chaplains appears also to be one of financial support as refers to individual congressmen paying out of their own pockets for such means as chaplains.

  3. (Rebuttal by Chris Dumford, pt. 2)

    Albeit, though Madison may have disagreed, there are still military chaplains paid for by taxpayer’s dollars. Though Madison felt that the public issue of a day of thanksgiving should not occur, even he appears to be somewhat radical in his view of the reach of the 1st amendment since as stated above, the Federal Government to this day pays chaplains in the military with public taxpayer's dollars, they still recognize a national day of prayer, they still have national holidays of Thanksgiving and Christmas, both of which are largely Christian in their origin. They still open congressional sessions with prayer, they still have a national motto of In God We trust, they still recognize that God is the protector and Sovereign within the body of that Motto. What the Supreme Court did in 1963, was to placate a single complaint in which the justification for the ruling was at its worst completely at odds with historical precedent and previous court rulings as to the role of the government in openly supporting public worship and expression of such, and at its best, is hypocritical in regard to the practice of the other branches of Government, in that Congress can open in prayer, but a public school cannot. A chaplain can quote the Bible in a Prayer breakfast sponsored by the Executive branch, but a public school teacher cannot. The president can openly invoke the blessing of God in an address to Congress, but a public School teacher cannot. The government can print In God We trust on its currency, but cannot permit the display of the 10 commandments on a courthouse lawn, while swearing in a president on a Bible, a Governor on a Bible, or a witness within the same courthouse. Thus, what the Supreme Court did, was apply their ruling of Separation of Church and state selectively and ultimately, hypocritically. Thus, I agree that the Federal Government should not overtly or covertly support one sect over another (as was the traditional, historical argument), but I also believe that the removal of all forms of religious expression within the Government itself is also not the intent or historical application of the 1st Amendment. The current fear is that the idea of religious fundamentalism is inherently evil(especially in today's environment)and that somehow Christian fundamentalists have some covert idea to usurp the Government and establish some form of theocracy. On the contrary, most Christian fundamentalists only seek to have the historical freedom to express their religious views as they have since the foundation of the country and would be revolted at the idea of a theocracy as violating the very principle of priesthood of the believer.

  4. Scott, (1)

    Thank you for your thoughtful response. While disagreeing with your constriction of Madison's meaning, I agree with you that the available historical evidence falls short of definitively revealing the founders' intent and leaves much to interpretation. Wishful thinking leads some in different camps to declare, with unfounded certainty, that the founders' intent to separate church and state is a "myth" or plain as day; it is neither.

    It is such issues and such conflicting evidence that the Supreme Court is supposed to resolve in our system of government. The Court did just that in Everson v. Board of Education. The Court's reading of the First Amendment in this regard was unanimous; all nine Justices agreed on that much, but split 5-4 on whether the Amendment precludes states from paying for transportation of students to religious schools (the majority considering this okay).

    Madison touched on the conflicting historical evidence in his Detached Memoranda, inquiring what should be made of the various actions (e.g., appointment of chaplains and thanksgiving proclamations) already taken in the nation's then "short history" inconsistent with the Constitution. Ever practical, his answer was not to demand these actions be undone, but rather to circumscribe their ill effect: "Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature]." He concluded it was "[b]etter to disarm in [this] way, the precedent of [such actions] than erect them into a political authority in matters of religion."

    The Supreme Court, in effect, has followed Madison's advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to some governmental statements or actions, e.g., appointment of chaplains, sometimes with the explanation that they are more about tradition than religion per se. As you can imagine, those more interested in championing their religion than the constitutional principle commonly seek to exploit and expand such "exceptions" even if it requires they fake interest only in tradition. One consequence of the Court's approach has been, as you note, the seemingly disparate results of various cases in which some things are allowed and others are not.

  5. (2)

    Evidently not satisfied with that approach, you suggest, I gather, that the First Amendment should only prevent the government from overtly or covertly supporting one sect over another and allow the government some forms of religious expression. While not sure what you would encompass by the latter part of that suggestion, I think any such interpretation of the First Amendment would raise so many problems that I tire at the thought of listing them (perhaps I'm just feeling holiday laziness). For instance, where and how would one distinguish sects or groups of sects? While no expert on Christianity, I understand that it comprises dozens or even hundreds of sects depending on how one draws the lines. And why stop with Christianity since there are other monotheistic religions? Would it be okay for the government to support Islam as long as it refrained from choosing the Sunni or Shiite sect? And even if one wished to stop with Christianity, how does one draw the line around that? For instance, some question whether Mormonism "belongs" in Christianity. A more fundamental question, naturally, is from whence does one derive any such interpretation of the First Amendment? While the founders were, no doubt, confronted with the need to address competition and conflict between a variety of sects, largely but not exclusively Christian, it is a non sequitur to suppose "therefore" that they intended merely to stop the government from favoring one "sect" (however defined), but leave it free to favor some (also undefined) grouping of sects (e.g., "generic" Christianity or perhaps monotheism, or theism, or deism, or some such).

    The adage to be careful what you wish for comes to mind as well. Recall that to the extent "religion" in the establishment clause is reduced to a reference to one or more sects, "the free exercise thereof" is similarly reduced and rendered problematic.

    Finally, you assert that the "current fear" is that evil religious fundamentalists want to establish a theocracy but say that "most Christian fundamentalists only seek to have the historical freedom to express their religious views as they have since the foundation of the country." I think this misses the mark.

    The fear (historical and current) is that any religion may use the government to establish its position in society. This is not about Christians wanting "freedom to express their religious views." They have that freedom, and they use it prolifically. This is about Christians wanting to use the government to endorse their religion with its imprimatur and thereby permanently "establish" Christianity as the dominant religious influence in our society. In my view, under the First Amendment, Christians are free to strive to maintain and even increase their sway in our society; they simply cannot enlist the government as their ally or tool to that end. I think, though, some Christians fear their influence is waning and, out of fear, grasp at any means, even co-opting government, to hold on to Christianity's "traditional" dominance.

  6. Oops! I see it is Chris I should thank for his thoughtful response.


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