Religious Freedom: The War Between Two Faiths

by Herbert W. Titus

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The religious clause tests that have been utilized by the Court in the last 20 years have promoted an evolutionary faith far removed from the creationist faith of America’s forefathers. That faith has brought the Court into direct conflict with the constitutional guarantees in the First Amendment religious clauses that the Court is bound by oath to defend.

As Chief Justice Burger discovered in the Nebraska chaplaincy case, rigid adherence to the Court’s own Establishment Clause three-part test would have brought the Court into direct conflict with the Constitution. But that conflict has not been limited to the Establishment Clause nor to the single issue of the constitutionality of the legislative chaplaincies. To the contrary, the Free Exercise-compelling state interest test and the Establishment Clause three-part formula have been designed without regard to the First Amendment religious guarantees as they were originally intended by the framers.

Upon ratifying the United States Constitution several states urged the new national government to include a bill of rights in the new constitution. Among the provisions suggested as amendments were articles dealing with religion. Virginia and North Carolina, for example, proposed a “free exercise” guarantee modeled after the already existing one in the Virginia constitution coupled with a “no preference” establishment clause modeled on other state constitutions.15 New Hampshire proposed one that prohibited any law “touching religion” or infringing “the rights of conscience.”16

James Madison took these suggestions and introduced into Congress the following proposal:

“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.”17

Madison’s proposal obviously did not become the final text. Both the House and the Senate offered significant amendments that ultimately produced the familiar text: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”

While the Congressional record has shed precious little light on the reasons for the substitution of the phrase, “prohibiting the free exercise (of religion)” for Madison’s original phraseology in the beginning portion of his proposal, it has been clearly demonstrated that the “free exercise of religion” language was borrowed from the “free exercise of religion” clause in the 1776 Virginia Constitution. That language first appeared in the Virginia document and in only one other state constitution, that of Georgia.18 Section 16 of the 1776 Virginia Declaration of Rights read as follows:

“That religion, or the duty we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore 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.”19

This provision was put to its first serious test in Virginia by a╖ bill that, if enacted, would have levied a tax on the people to support teachers of the Christian religion. It was in response to this proposed legislation that Madison wrote his famous July 1785 “Memorial and Remonstrance on the Religious Rights of Man.”20

In his Remonstrance, Madison analyzed the proposed legislation in light of the textual meaning of the word, religion, as set forth in the Virginia Constitution:

“We remonstrate against said Bill, ….Because we hold it for a fundamental and undeniable truth, that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence.’ The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.”

As this language demonstrates, Madison and his Congressional colleagues held a creationist world view and that world view shaped their definition of religion. Therefore, to remain true to the original intent, one cannot embrace Darwin’s theory of evolution lest the fundamental meaning of religion be lost.

Second, as this language reveals, Madison and his colleagues believed that the Creator had ordained a legal order that pre-existed all civil societies and that order included the unalienable right to perform those duties owed exclusively to the Creator free from civil government interference. Again, to remain true to the original intent, one cannot embrace late nineteenthcentury and twentieth-century ideas that man is the maker of law or that impersonal nature is law’s author.

Third, as this language reveals, Madison and his colleagues believed that free exercise of religion was a matter of jurisdiction. There were some activities from which the civil government was absolutely excluded. One of these, Madison believed to be the right to be free from any civil government authority over beliefs and opinions:

“… (T)he opinions of men, depending only on the evidence contemplated in their own minds, cannot follow the dictates of other men; … (they are within) a duty towards the creator … this duty is precedent, both in order of time and degree of obligation, to the claims of civil society. Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe, and if a member of civil society, who enters into any subordinate association, must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular civil society do it with the saving allegiance to the universal sovereign. We maintain, therefore, that in matters of religion, no man’s right is abridged by the institution of civil society; and that religion is wholly exempt from its cognizance.”21

Once Congress adopted this jurisdictional approach to religious freedom, it dropped Madison’s proposed concluding phrase on the “rights of conscience.” After all, the provision for conscience was subsumed under the broad free exercise language as is clear from the reference to it in the Virginia Constitution and others.22

Moreover, Congress did not desire to recognize a right of conscience divorced from man’s duties to his Creator lest unnecessary conflicts with the rightful jurisdiction of civil society arise. Such a right of autonomous individual conscience existed in no state constitution. Congress rejected Madison’s conscience proposal along with another one proposing a constitutional exemption for religious conscientious objectors from militia duty as ill-conceived and dangerous.23

Despite this clear rejection of Madison’s original “conscience” proposal, the United States Supreme Court, beginning with Sherbert v. Verner, when it first applied the “compelling state interest” test has transformed the Free Exercise Clause into a “religious conscience” guarantee. In order to claim Free Exercise protection before today’s Court, a claimant must first prove that his personal belief is a religious one and then pit that individual commitment against the civil government’s program that allows for no such deviations.

Consider, for example, the Bob Jones case. The lawyers argued that Bob Jones University’s collective religious conscience against interracial dating and marriage would be violated by the Internal Revenue Service’s insistence that it abandon that commitment or lose its tax exemption. This appeal to conscience was overwhelmed by the government’s commitment to eradicate racial discrimination from education.

This kind of contention and analysis did not even address the true religious freedom issue in the case, namely, whether the federal government has any authority to tax the gifts and offerings dedicated by people to fostering and inculcating religious beliefs and opinions in a University setting. Was that a duty owed exclusively to the Creator and, therefore, immune from the I.R.S. taxing authority? Because of the Court’s evolutionary faith, it has no longer addressed the question that Madison and his colleagues believed they had phrased by the constitutional language. Therefore, the Court’s new faith has led it to disregard the Constitutional text and historic meaning.

Not only has this been so with respect to the Free Exercise Clause, it has been equally true of the Establishment Clause. There is no reason not, indeed, there has been every reason to, believe that religion means the same thing in the Establishment Clause as it does in the Free Exercise Clause. The text of the latter has referred specifically to the word, “religion,” in the former. Therefore, religion in the Establishment Clause must have the same jurisdictional meaning as does religion in the Free Exercise Clause.

The word, establishment, also, has given jurisdictional significance. The Church of England was known as the “established church” under the authority of the King or Queen.24 It, therefore; had available to it the enforcement powers of the state in matters of doctrine and Christian living. That practice had been brought to the colony of Virginia by its Anglican settlers. Hence, the tithe was imposed by law to support the clergy until 1776 when that practice was suspended one year. That suspension was extended through the Revolutionary War until it was abolished in 1779. By 1794, however, supporters of the establishment of the Christian religion in the Commonwealth of Virginia gained a majority in the Assembly of Delegates. Their first effort to reinstate an established religion was a bill to use the Commonwealth’s taxing power to raise money to support Christian teachers. Because of Madison’s cry of no jurisdiction in his Remonstrance, the bill failed.25

That experience revealed the need for more than a Free Exercise guarantee in the Virginia’s constitutional arsenal. Other state constitutions had addressed the problem of establishment of religion by adopting prohibitions against favored treatment of one denomination or sect over another. For example, Article 19 of the 1776 New Jersey Constitution read: “That there shall be no establishment of any one religious sect in this Province, in preference to another …”Therefore, Madison’s initial proposal embraced this “no preference” principle as the solution at the national level. Thus he inserted the adjective, “national,” in front of “religion” in order “to prohibit a national religious policy that allowed one sect … (to) obtain pre-eminence, or two (to) combine together and establish a religion to which they would compel others to conform.”‘26

Madison’s House colleagues objected to this no preference idea. They feared that any exercise of national authority to establish religion, however non-preferential, would threaten the existing state-established religions and the very existence of the federal union. Their solution was to delete the word, “national,” and make the establishment prohibition an absolute one.27 Members of the Senate attempted to substitute a “no preference” establishment clause provision, but they failed.28 Ultimately, the two bodies of Congress agreed to the absolute exclusion of the federal government from any establishment of religion.

Early Congresses understood the true jurisdictional meaning of the Establishment Clause. For the most part, they steered clear from those activities that belonged exclusively to God. In those areas where they clearly had jurisdiction, they did not hesitate to make religious preferences. As Chief Justice Burger pointed out in Marsh v. Chambers, the same Congress that approved the Bill of Rights authorized the appointment of paid chaplains. Marsh v. Chambers, 463 U.S. 783 (1983).

In the first century, the Court, too, understood this jurisdictional purpose of the Establishment Clause. It did not even bother to suggest that a law prohibiting polygamy in fact preferred orthodox Christianity over other religions. Such preferences were axiomatic if Congress were to exercise its jurisdiction over marriage in the federally-owned territories. See Reynolds v. United States, 98 U.S. 145 (1879).

Even as late as the 1940’s and 1950’s, the Court acknowledged that the Establishment Clause permitted religious preferences in the legitimate exercise of government jurisdiction:

“… (W)e do not see how New York by this type of released time’ program has made a law respecting an establishment of religion within the meaning of the First Amendment ….Otherwise … [p]rayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; so help me God’ in our courtroom oath – these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment.” Zorach v. Clausen, 343 U.S. 306, 312, 313 (1951).

But with Engel v. Vitale, 370 U.S. 421 (1962) and Abington School Dist. v. Schempp, 374 U.S. 203 (1963), the Court embarked upon an entirely new course to make “neutrality” the governing principle of the Establishment Clause. The Schempp case gave rise to the first two prongs of the Establishment Clause three-part test and Chief Justice Burger added the third prong in the 1970 case of Walz v. Tax Comm’n., 397 U.S. 664 (1970).

The word, “secular,” in these tests was designed to achieve the Court’s goal of neutrality. That goal was comparable to that embodied in a “no preference” type establishment clause, namely, to eliminate all religious favoritism from the law. Once again the Court has adopted a principle that was explicitly rejected by the framers. Not only has it invited attacks upon religious practices such as the legislative chaplaincies, but upon laws that have long been based upon values that rest upon religious preferences. See, e.g., Harris v. McRae, 448 U.S. 297, 319-20 (1980). Even lawyers representing orthodox Christian clients have been lured into arguing that all laws must be rid of any hint of religious bias. See Bob Jones Univ. v. United States, 561 U.S. 574, 604, n. 30 (1983).

While the Court has refused to embrace such contentions, they have attempted to impose their own view of religious neutrality that, in fact, has been leading inexorably to the complete and total excision of this country’s Christian heritage from the public schools. For example, Justice Clark in the Schempp case has allowed that the Bible can be taught in the public schools, but not if it is presented as the inspired Word of God. That can be “neutral” only if one adopted the Court’s implicit religious faith, that God need not be consulted in man’s search for truth. That was not the religious faith of America’s forefathers. This difference in faith inevitably has brought the Court into conflict with the Constitution and to disregard the constitutional text and historic meaning.


Chief Justice Burger’s opinion affirming the Nebraska legislative chaplaincy endorses the true principles of religious freedom in the Establishment and Free Exercise Clauses by affirming the legitimacy of religious preferences in areas in which the civil government obviously has jurisdiction. Longstanding practices such as Presidential prayer, proclamations, ceremonial references to God in court proceedings, and acknowledgments of God’s authority over the legislative process are no longer threatened if the Marsh opinion is followed. While such practices “encourage” religion, they do not “establish” religion so long as they are administered in such a way that the government does not step outside its designated role in the executive, judicial, and legislative processes. The distinction between “encouragement” or “accommodation” and “establishment” is a legitimate one that has been recognized by the Congress and by the Court for nearly two centuries.

For example, Article III of the Northwest Ordinance enacted by Congress on July 13, 1787, includes the sentence: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The United States Court opinion in the 1951 case of Zorach v. Clauson, still considered good law today, stands squarely within this early principle:

“The government … may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction.”

Under guidelines such as these, the government may continue to supply chaplains, to build chapels, and to provide other opportunities for religious worship to members of the armed forces so long as no coercive measures accompany such programs and so long as they are within the jurisdiction of the government to raise, support, maintain, regulate, and discipline those forces. See Article I, Section 8, Clauses 12, 13, 14, and 16 of the U.S. Constitution. Moreover, if a government has jurisdiction to prohibit any or all business activities on one day of the week in order to protect the health and welfare of the people by insuring them at least one day a week rest, then it may choose Sunday as that day of rest and, thereby, encourage people to attend Christian services. McGowan v. Maryland, 366 U.S. 420 (1961).

Other religious preferences fall within this analytical group. The federal government is authorized “to coin money.” It may, therefore, affix the inscription “In God We Trust.” Such a saying has not been placed there to remind the people to put their trust in the Almighty as our Forefathers did. Rather, that inscription is there as the official statement of the government’s monetary policy, namely, that the people trust in God not mammon.

On the other hand, the phrase “under God,” in the Pledge of Allegiance resembles the references to God that have been historically invoked in the oaths of office of the Presidency, the Congress, and the Courts. These do constitute legitimate concerns of the civil government to ascertain the loyalty of its citizenry to the constituted polity. War memorials and other artistic endeavors that reflect religious themes are, also, permissible so long as those are suitable to the purpose for which the land or buildings have been dedicated and within the proprietary authority granted to the government as owner.

In summary, religious encouragements such as the ones reviewed need no longer be defrocked of all religious significance, as Justice Brennan has suggested. See e.g., Marsh v. Chambers, supra at 815-818. Instead, they may be openly and freely engaged in so long as they do not exceed rightful jurisdictional boundaries of government action.

Where the civil government has taken action that coerces compliance with religious norms, then proof of “establishment., has been made. The issue now is whether the act required is a duty owed exclusively to the Creator or one owed to the civil government. For several centuries, one of the key jurisdictional battlegrounds between God and Caesar was the one over marriage and divorce. Prior to the Reformation, the church maintained that marriage, like baptisms and communion, were sacraments subject to the exclusive jurisdiction of God. After the Reformation, marriage, and with it divorce, child support, and other family legal obligations came within the civil government’s jurisdiction.

It is the latter view that clearly undergirds the Court’s opinion that laws prohibiting polygamy do not violate the Free Exercise Clause:

” … (T)here never has been a time in any State of the Union when polygamy has not been an offense against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law.” Reynolds v. U.S., 98 U.S. 145,165 (1879}.

Subsequent polygamy cases have followed this jurisdictional pattern as Justice Field’s opinion in Davis v. Beason, 133 U.S. 333, 342 (1889) attests:

“The term religion’ has reference to one’s views of his relations to this Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will…. The First Amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow everyone under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper…. It was never intended or supposed that the Amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society.”

Under analytical schemes such as these, arguments based upon “religious conscience” are quickly disposed of whether they be religious convictions supporting human sacrifice as against the laws prohibiting murder or religious beliefs supporting the use of peyote as against the laws prohibiting such use or, even objections to war as against a law conscripting a person to military service.

As Justice Field points out, there are, however, areas totally outside ╖ the jurisdiction of the civil government. These enjoy protection of the Constitution. Among the protected areas are opinions and beliefs, worship, evangelization, qualifications of pastors, pastoral counseling, and the tithes and offerings of the people. These are duties owed to God over which Caesar has no jurisdiction because they are matters subject to “reason and conviction” and not to “force or violence” as the 1776 Virginia Constitution reminds us.

Given this jurisdictional distinction, we have yet to see contested the constitutionality of programs in which the civil government has exercised authority only within the past few years. For example, not yet has there been a resolution of the constitutionality of a zoning law’s application preventing the location of a church building. Is that a matter of conscience and reason? What about day care centers and Christian schools?

In an earlier article, I have argued that education, because it involves the opinions and beliefs of men, is among those duties owed exclusively to the Creator and, hence, immune from the State’s jurisdiction.29 That argument has never been made to any court. If successful, it would result in a dramatic return of educational responsibility and freedom to the people.

Not only is the current state-operated educational system vulnerable to jurisdictional attack, but so is the entire state-supported welfare system. The assumption of cases like United States v. Lee, supra, is that social security and other like programs for the handicapped, the poor, the aged, the unemployed, and the dependent are subject to the jurisdiction of the State. But is man’s duty to feed, to clothe, and to house the destitute a duty owed exclusively to God, our Creator?

God, as Creator, commands people to take care of the needs of the destitute out of love for them. At common law, no one has ever been held liable for failure to come to the aid of another in distress. The courts recognize that such a duty is a moral one that is owed exclusively to God, not a legal one that is owed to God through the coercive power of the state. That distinction should also prevail when the state attempts to force people to support the destitute through taxes and by hiring welfare workers to act as the “Good Samaritans.” The imposition of a tax, like the threat of liability, invokes the coercive power of the state.

The duty to support the destitute rests upon God’s commandment to love thy neighbor as thyself (Luke 10:27-37). Love is a voluntary act and, by definition, is destroyed by the interposition of the government’s taxing power. Under this analysis, America’s current tax-supported welfare system violates man’s free exercise of religion by subjecting a duty owed exclusively to God and conscience to the coercive power of the state. That is the clear witness of the Virginia Constitution’s Free Exercise article: “It is the mutual duty of all to practice Christian forbearance, love and charity towards each other.”

The proposed jurisdictional analysis would bring the religious freedom guarantees into harmony not only with the Constitutional text and its original meaning, but with each other. Under current court tests, the Establishment and Free Exercise Clauses sometimes collide. See, e.g., Sherbert v. Verner, supra, at 413-418. (Stewart, J., concurring.) Even Justice Brennan has admitted that the “neutrality” and “separation” goals of the Establishment Clause cannot be reached because of”certain tensions inherent in the First Amendment itself …” Marsh v. Chambers, supra, at 809.

Either the government has jurisdiction over an activity or it does not. If it does, then there can be no Free Exercise claim unless the government exceeds its jurisdiction by breaching the Establishment Clause. Moreover, if any activity is outside the government’s jurisdiction, it is outside for both Free Exercise and Establishment Clause purposes. For example, because it violates the Establishment Clause to use the state’s taxing power to collect the tithes and offerings for the church, then it violates the Free Exercise Clause to tax those same tithes and offerings.

In harmony with the Constitution, its text and historic purpose, only this analytical approach that separates Caesar’s jurisdiction from that belonging exclusively to God, the Creator, will bring true religious freedom back to America.


Jesus said: “Render therefore unto Caesar the things which be Caesar’s and unto God the things which be God’s” (Luke 20:25). The early church applied this lesson in jurisdiction and won the victory over the opposition of the Roman Empire’s religious rulers in Jerusalem:

“Did not we straitly command you that you should not teach in this name? And, behold, ye have filled Jerusalem with your doctrine, and intend to bring this man’s blood upon us. Then Peter and the other apostles answered and said, We ought to obey God rather than man” (Acts 5:28-29).

This Biblical lesson in jurisdiction is the bedrock of religious freedom. It is a lesson that inspired America’s forefathers to write a constitutional guarantee of religious freedom that would protect future generations. Only if that jurisdictional principle remains fixed and absolute in American constitutional law will the people remain free. Changing constitutional principles in order to accommodate changes in circumstances and values does not yield a “living constitution” as some believe. To the contrary, adhering strictly to the original terms, neither adding to nor subtracting from them, is the only assurance of the true liberty and prosperity. It is as Moses spoke to the people of Israel:

“Keep … the words of this covenant, and do them, that ye may prosper in all that ye do” (Deut. 29:9).

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*     Copyright © 1984, 2021 Herbert W. Titus. This article originally published in Journal of Christian Jurisprudence, Vol. 5 (1984-1985). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.
   15.    3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 659 (J. Elliot, ed., 2d ed. 1836) (Virginia) [Hereinafter The Debates). 4 The Debates 1244 (North Carolina).
   16.    l The Debates, supra note 15, at 362.
   17.    I Annals of Congress 434 (June 8, 1789).
   18.    Ga. Const. Of 1789, art. IV, section 5.
   19.    Sources of Our Liberties 312 (R. Perry ed. 1972).
   20.    M. Malbin, Religion and Politics 22-25 (1978).
   21.    Id.
   22.    See, e.g., Section 2 of the 1776 Delaware Constitution: That all men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understandings; and that no man ought or of right can be compelled to attend any religious worship or maintain any ministry contrary to or against his own free will and consent, and that no authority can or ought to be vested in, or assumed by any power whatever that shall in any case interfere with, or in any manner control the right of conscience in the free exercise of religious worship.
   23.    Titus, “Education, Caesar’s or God’s: A Constitutional Question of Jurisdiction,” 1982 J. Christian Juris. 101, 145 and M. Malbin, Religion and Politics, supra note 20, at 39, n. 4.
   24.    N. Webster, An American Dictionary of the English Language (1828).
   25.    M. Malbin, Religion and Politics, supra note 20, at 22-24.
   26.    Titus, “Education, Caesar’s or God’s,” supra note 23, at 144.
   27.    Id.
   28.    M. Malbin, Religion and Politics, supra note 20, at 12.
   29.    Titus, “Education, God’s or Caesar’s,” supra note 23.