The First Amendment Defended: The Freedom Of Religion, Pt. 2

I've compiled some comments and rebuttals I have received on this topic. There are quite a few, so I wanted to get them into a main post on the page. This is great reading, folks! If you haven't read the initial post by Chris, read it here first: http://theconservativeanthem.blogspot.com/2009/12/first-amendment-defended-freedom-of.html

FROM DOUG INDEEP: 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.

December 31, 2009 11:19 AM

FROM CHRIS DUMFORD: 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.

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.

January 1, 2010 10:47 PM

FROM DOUG INDEEP: 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.

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.

January 2, 2010 2:40 PM

Here is the latest post from Chris Dumford. Check the comments section for any additional reading

In regard to your last post, I am thankful for your information and the spirit by which you are discussing this issue. What I intended by my previous posts, was not some overt missive to establish Christianity above other religions (and I will confess that I am an ordained minister of the Gospel and personally would like to see Christianity propagated throughout the world), but rather to support the notion that the 1963 court ruling was one which overturned the previous precedents of the Federal Government in it's support of religious expression, especially in both the written, spoken expression and the open propagation of religion, and from my view an expression which mirrored the largely Christian practices within society. Here are several examples, which did not lead to the establishment of a Theocracy, nor threaten the free exercise of religion as practiced for almost 200 years prior to the court ruling. The issue at stake is whether the intent of the 1st Amendment was for members of the Government (I.e. including school teachers et,al) being restricted in either the open expression of religion, or the promotion of the practice thereof as so-called representatives of the state as I understand your argument. I contend as I have previously that this intent (and I am only expostulating my opinion that the court ruling was not in keeping with the original framers intent, nothing more, and nothing less) was not the case when penned by the framers. This is borne out by the implementation of prior policies openly supported and practiced by the Federal Government.

One of these indications was the 1803 treaty with the Kaskaskia Indians in which the Federal government under article 3 of the treaty agreed for 7-years to pay the salary of a Catholic priest and to provide funds for the erection of a church:

Excerpt from Article 3:

"The greater part of the 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, who will engage to perform for the said tribe the duties of his office and also to instruct as many of their children as possible in the rudiments of literature. And the United States will further give the sum of three hundred dollars to assist the said tribe in the erection of a church. The stipulations made in this and the preceding article, together with the sum of five hundred and eighty dollars, which is now paid or assured to be paid for the said tribe for the purpose of procuring some necessary articles, and to relieve them from debts which they have heretofore contracted, is considered as a full and ample compensation for the relinquishment made to the United States in the first article..."

Now it can be argued that the Government was only assenting to the current culture of the Kaskaskia Tribes and this under the contemporary framework of viewing Indians as heathen and Christianity being a tool to "civilize" the Indians. The actual truth may be this case, but it indicates that the Government was a reflection of the cultural ideas of the day and saw no problem with supporting and propagating those ideas.

It is common knowledge that Jefferson approved holding church services in the capitol building on Sundays and the Marine Corps band was utilized to provide music during the services as attributed by his biographer. The approval of the Capitol for church was given by both the House and the Senate, with House approval being given by Speaker of the House, Frederick Augustus Muhlenberg, and Senate approval being given by the President of the Senate, Thomas Jefferson. Interestingly, Jefferson approved the decision as president of the senate, and though still Vice President, had been elected president previous to the Congressional Approval. The Capitol building had been used as a church even for years before it was occupied by Congress. The cornerstone for the Capitol had been laid on September 18, 1793; two years later while still under construction, the July 2, 1795, Federal Orrery newspaper of Boston reported: City of Washington, June 19. It is with much pleasure that we discover the rising consequence of our infant city. Public worship is now regularly administered at the Capitol, every Sunday morning, at 11 o'clock by the Reverend Mr. Ralph.

Lincoln's 2nd Inaugural address in 1864 could be preached in any church today. Lincoln accedes to the Bible being the predominate guiding force of both the US and CS populace. He both quotes scripture and applies it to Government policy regarding the prosecution of the war.

I am an avid military collector and amateur historian and in my collection is a Bible distributed by the federal government to US soldiers in France in WWI with an introductory letter in the fly leaf by Woodrow Wilson extolling them in their Christian faith.

By precedent, we have the Congress negotiating treaties and openly supporting the propagation of the Catholic faith among the Indians, we have the Congress and Senate approving the use of Federal public buildings for religious worship, we have the executive branch referring to the Bible as the standard for prosecuting the war between the states and openly promoting the distribution of religious materials to the military. It was lawful and legal for prayer and Bible reading in public schools prior to 1963. None of these practices resulted in forcibly bringing people to be required to worship God or any religion for that matter, it only indicates that the Supreme Court ruling in my opinion over-reached it's authority to narrowly define the intent of the 1st amendment in the face of all previous historical precedent to the contrary.

I do understand that the Constitution has within its body the allowance for the Constitution to be amended to provide for changes in culture. A supreme example would be the question of slavery. Prior to the Civil War (and you being an attorney are much more versed on this decision than I am), The Dred Scott decision ruled that slaves were property and not subject to the rights granted under the Constitution. If the Civil War had occurred in our modern age, the Court would most likely have simply ruled that the right of former slaves to vote and the right to be free were implied under the "We the People" clause of the Preamble. Not so for the Court in that day. They tackled what was then a decisive question regarding the cultural ideologies of their day by amending the Constitution. This implies that former courts were very careful NOT to read into the Constitution more than what was intended by the framers, especially based on former practice. This same principle occurred when the Court addressed Women's suffrage.

As I previously stated, I believe that the current social understanding of the separation of Church and State is not the historical understanding. Converse to this, I do not advocate that the 1st Amendment be stretched beyond the historical precedents into some ideology that the Government should carry the banner of religion, only that the Government itself, and the individuals that are representative of such Government be permitted the same freedoms of expression that private citizens have outside of the auspices of the Government, as was practiced up to 1963.

As with any Court ruling, this ruling has been used to filter down to state and local governments. In some cases the courts have upheld religious freedoms, but in the majority of cases which have stemmed from this ruling, there is a continuing erosion of those freedoms due to the court kicking open the door if you will. This can be seen in the current 2nd amendment debates, the apparent overreach of the Department of the Interior, the Government reach regarding environmental policy, the debate over the 10th amendment, and a whole host is issues which would constitute another series of blog debates which I do not have the desire or energy to enter into.