The Establishment Clause:
A Question of Jurisdiction

by Herbert W. Titus

First:   Defining Religion; No Preference v. No Jurisdiction
Third:   Establishment Clause Public Policy
Last:   The Religion Clauses: An Epilogue


Since Everson v. Board of Education, 330 U. S. 1 (1947), the United States Supreme Court has assumed that the Establishment Clause does not prohibit the civil government from establishing a system of public education.

Since the 1960’s, the Court has insisted, however, that the Establishment Clause requires that the state-supported school system be purged of all religious purposes and activities. Edwards v. Aguillard, 482 U. S. 578 (1987).

All of these rulings rest upon the proposition that the Establishment Clause prohibits state support of the propagation of “religious opinions and beliefs,” but not “secular opinions and beliefs.” Stone v. Graham, 449 U. S. 39 (1980).

This proposition, in turn, rests upon the 1947 Everson opinion, in which Justice Hugo Black concluded that the Establishment Clause, like the 1786 Virginia Statute Establishing Religious Freedom, banned state tax support of the church and of religious activities in general.

It is true that the operative section of that 1786 statute denied to the state the power to interfere with the affairs of the church or to support the propagation of religious opinions. But that prohibition did not rest upon a principle that distinguished “opinions in matters of religion” from “opinions in physics or geometry.”

To the contrary, the ban on state interference with “religious opinions” was rooted in the proposition that the state had no jurisdiction whatsoever in the realm of opinion generally. Jefferson put the fundamental principle this way:

[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles, on supposition of their ill tendency, 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 ….

What is tax-supported public education, but state intrusion into the field of opinion, with power to determine what ideas will be taught and for what purposes. Even the Supreme Court has acknowledged that state public schools are:

vehicles for “inculcating fundamental values necessary to the maintenance of a democratic political system.” Board of Education v. Pico, 457 U.S. 853, 864 (1982).

To serve this purpose, the Court has expressed:

full agreement … that local school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” Id.

In order to “inculcate fundamental values” a school board must decide what those fundamental values are and devise a program whereby those values are impressed upon each student. To “inculcate” means to indoctrinate, to fix in the mind. See Titus, “Public School Chaplains: Constitutional Solution to the School Prayer Controversy,” 1 Regent L. Rev. 19, 29 (1991).

In order to “transmit community values,” a school board must again decide what those community values are and devise a program whereby those values are conveyed.

To “transmit” means to pass on by inheritance, to hand down. Id. at 30. In order to “promot[e] respect for … traditional values,” a school board must decide what those traditional values are and devise a program whereby those values are furthered or encouraged. To “promote” means to cultivate, feed, or foster. Id.

Jefferson’s statute, the very one cited by the Supreme Court in Everson, condemned these very practices as destructive of “religious liberty,” because, given the power to educate the citizenry, the civil ruler will inevitably “make his opinions the rule of judgment” and “approve or condemn” other opinions “only as they shall square with or differ from his own.”

Therefore, Jefferson denied to the civil ruler all jurisdiction in the arena of opinion, leaving that arena to the people unimpeded by civil law:

… [T]ruth is great and will prevail if left to herself, that she is the proper, and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them ….

The only power the civil ruler had, Jefferson contended, was to protect the community “when principles break out into overt acts against peace and good order,” not to intrude upon “the field of opinion” so as to prevent such acts from occurring.

Not only did Jefferson’s principle deny to the state any jurisdiction to teach its citizenry, but it denied to the state the power to tax to support any general education program He stated this part of the principle succinctly:

That to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical….

What are taxes raised to support a public school system but forced contributions of money to support the propagation of opinions. In Jefferson’s time, the education of the citizenry was in the hands of the family and the church. The church had relied on the power of the state to enforce the tithe in order to support its teaching, as well as its worship, ministry. See, e.g., Constitution of Massachusetts, Declaration of Rights, Art. III in Sources of Our Liberties 374 (R. Perry, ed., Rev. Ed. 1978) and see generally Titus, “Education, Caesar’s or God’s: A Constitutional Question of Jurisdiction,” 1982 J. of Christian Juris. 101, 130-142.

Jefferson’s principle denied that the civil ruler had any such authority. Indeed, he went so far as to deny to the state the power to exact the tithe, even if the person taxed had the choice of giving his tithe to the church of his choice. See Titus, “School Choice,” The Forecast 3-4 (Dec. 1, 1993).

Jefferson’s opposition was not based on the notion that the state could not enforce the tithe because it was being used to support the propagation of “religious opinions.” Rather, it was because he had concluded that man’s mind had been created to be “free” and free it must remain from “all attempts to influence it by temporal … burthens,” including taxes for the purpose of supporting the propagation of beliefs of all kinds.

Jefferson put the foundational proposition this way:

Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy or meanness, and are a departure from the plan of the Holy Author of our religion, who, being Lord both of body and propagate it by coercions on either, as was in his Almighty power to do ….

If God, Himself, who has all power and authority, has chosen not to use force to impose the true religion upon mankind, Jefferson observed, how dare men “assume dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible.”

That they have done so, Jefferson claimed, was based upon “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men .. established and maintained false religions over the greatest part of the world, and through all time ….”

Religion, to Jefferson, meant the entire realm of opinion, not just the subjects of salvation, redemption, and other religious matters. His world was not divided into the “religious” and the “secular,” as is the case with twentieth century men. See Titus, “Education, Caesar’s or God’s: A Constitutional Question of Jurisdiction,” 1982 J. of Christian Juris., supra, at 142-163.

This was so because Jefferson, like all of America’s founders, acknowledged that God was the Creator of the universe and all mankind and, as the Creator, had laid out a regime of law governing all of his creatures. See Titus, God, Man and Law: The Biblical Principles 41 (Inst. of Basic Life Principles 1994).

This meant that America’s founders sought to discover God’s law in order to bring civil law into conformity with it Thus, the meaning of religion and the right to freedom of religion arose first in relation to God and God’s law.

Thus, Section 16 of the 1776 Bill of Rights of the Virginia Constitution defined religion as “the duty which we owe to our Creator” and freedom of religion as those duties which, by nature, can only be enforced by “reason and conviction, not by force or violence.” These definitions would not have been possible if Virginia’s statesmen did not hold to a Biblical world view which acknowledges the realm of the Holy Spirit (John 16:8) and the realm of the civil ruler (Rom. 13:4).

Jefferson concluded that one of the duties that lay outside the realm of the civil ruler was the responsibility to believe and to profess “truth.”

From this, he concluded that God created the mind free from all civil jurisdiction He did not confine that liberty to just those matters of the mind that some civil ruler might label “religious.”

But Jefferson’s creation world view is not the one now held by the Supreme Court. Rather, the justices, liberal and conservative, live in a world defined by the Darwinian revolution, not by the Book of Genesis. Consequently, they do not recognize God as the Author of law. Rather, they assume that laws are either made by men or imposed upon them by an impersonal force in nature. See Titus, “Religious Freedom: The War Between Two Faiths.”

Having no foundation for drawing a jurisdictional distinction between duties owed exclusively to God and duties also owed to a civil ruler, the Court has carved out its own division between the “religious” and the “secular.” ln doing so, the Court has deprived the American people of their true legacy of freedom of religion by putting the constitutional stamp of approval on state-financed and administered secular education, thereby enabling the civil government to dominate men’s minds.

Even the 19th century pragmatist, John Stuart Mill, warned that an education system dominated by the state

is a mere contrivance for molding people to be exactly like one another; and as the mold in which it casts them is that which pleases the predominant power in the government whether this be a monarch, a priesthood, an aristocracy, or the majority of the existing generation in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body. J.S. Mill, On Liberty 129 (Liberal Arts Press 1956).


In recent years, government welfare programs have been challenged under the Free Exercise Clause of the First Amendment. These challenges have been of two types.

First, there is the claim that government welfare must be administered in such a way as not to unduly burden a person’s religious faith and practice. The leading case is Sherbert v. Verner, 374 U.S. 398 (1963) where the Court ruled that a Seventh-Day Adventist could not be denied unemployment benefits by a rule requiring her to accept work on Saturdays.

Second, there is the claim that a tax supporting a welfare program infringes the free exercise of religion when imposed upon a person who, because of religious conscience, cannot receive any of the welfare benefits supported by his taxes. The leading case is United States v. Lee, 455 U.S. 252 (1982) where the Court ruled that a member of the Old Order Amish could not be relieved from payment of the social security tax even though “the Amish believe it sinful not to provide for their own elderly …” and, therefore, presumably would never receive social security benefits.

The Lee ruling has escaped serious criticism. The Sherbert holding, however, has been questioned by some as violating the Establishment Clause. To force the government to treat a religious objection to Saturday work different from a non-religious one violates the Establishment Clause principle of neutrality, and is tantamount to subsidizing a religious practice with taxpayers’ money. Kurland, Of Church and State and the Supreme Court, 29 U. Chi. L. Rev. 1, 5 (1961).

But as I have previously demonstrated, the Establishment Clause principle is not one of religious neutrality, but of jurisdiction. Properly understood, all welfare programs violate the Establishment Clause principle of jurisdiction, because welfare is a “duty … owe[d] to [the] Creator,” enforceable “only by reason and conviction, not by force or violence.” See Titus, Defining Religion, The Forecast 7 (Apr. 1, 1994).

The Virginia Bill of Rights of 1776 explicitly acknowledged that the duty “of all to practise Christian forbearance, love, and charity towards each other” was a “mutual” duty, not a civil one. Constitution of Virginia Section 16 (June 12, 1776), Sources of Our Liberties 312 (R. Perry ed. 1978) (Hereinafter Sources). By definition, a duty to be “mutual” must be reciprocal. That is, it must be performed interchangeably with one or more persons giving and one or more persons receiving, each acting in return or correspondence to the other. Webster, American Dictionary of the English Language (1828).

To illustrate the nature of mutuality, Noah Webster provided two examples:

Mutual love is that which is entertained by two persons each for the other; mutual advantage is that which is conferred by one person on another, and received by him in return. Id.

The essence of mutuality is voluntariness, unencumbered by threat of force. It is one thing for a well-off person or group of persons freely to give money to a needy person or group of persons. It is quite another for the State to impose a tax upon the well-off and distribute the money raised to the poor.

To be a mutual duty, people must be left alone to decide whether or not to enter into a relationship, and if they do, to set the terms of that relationship. Any outside interference by the State with the performance of such an activity will transform a “mutual duty” into a “civil one.”

In contrast with the VirginiaBill of Rights, the Matyland Declaration of Rights treated welfare as a civil matter. The Maryland Constitution did so because it had adopted quite a different policy with regard to religious freedom.

First, only those persons “professing the Christian religion” were entitled to religious liberty and even they could not freely exercise their religious faith if it “disturb[ed] the good order, peace or safety of the State.” Constitution of Maryland, Article XXXIII (Nov. 3, 1776), Sources, supra at 349. In contrast, the Virginia Constitution guaranteed the free exercise of religion to all without limitation. Constitution of Virginia, Section 16, Sources, supra at 312. See Titus, No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion, 22 Cumb. L. Rev. 505, 506-07 (1991-92) (Hereinafter Titus, No Taxation).

Second, the Maryland Constitution authorized “the Legislature … to lay a general and equal tax, for the support of the Christian religion,” provided that the taxpayer was left with “the power of appointing the payment over of the money, collected from him, to support … [the] particular place of worship or minister” of his choosing. Constitution of Maryland, Article XXXIII in Sources, supra at 349. In contrast, the Virginia guarantee was applied in such a way as to prohibit the State from imposing any tax to support any religion. Titus, No Taxation, supra at 506-08.

Finally, the Maryland Constitution explicitly recognized that care for the poor was a matter concerning religion. The full text read, as follows:

[T]he Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion; leaving to each individual the power of appointing the payment over of money, collected from him, to the support of any particular place of worship or minister, or for the benefit of the poor of his own denomination, or the poor in general of any particular county…. Constitution of Maryland, Article XXXIII, Sources, supra, at 349.

In other words, the Maryland legislature had the power to establish a tax-supported welfare program for the poor, because it endorsed a policy of supporting religion with its taxing power. In contrast, Virginia denied to the State any jurisdiction over “charity” because it had endorsed a policy of denying all tax support for religion.

The First Amendment religion guarantees conform to the Virginia legacy, not the Maryland one. Everson v. Board of Education, 330 U.S. 1 (1947); See also Titus, No Taxation, supra at 505-06. Therefore, the prohibition of any law respecting an establishment of religion should be construed according to the Virginia principle of no jurisdiction, not the Maryland principle of jurisdiction, but no preference.

The Virginia legacy that “Christian forbearance, love, and charity” lie outside the jurisdiction of the State is consistent with the general principle that religious duties, i.e., those duties enforceable only by reason and conviction, belong exclusively to the Creator.

Even in theocratic Israel, the duty to care for the poor was not backed by civil sanction. To the contrary, giving to the poor was a matter of the heart:

If there be among you a poor man … thou shalt not harden thine heart, nor shut thine hand from thy poor brother … Thou shalt open thine hand wide unto thy brother, to thy poor, and to thy needy, in thy land (Deut. 15 :7, 11).

Instead of reinforcing this duty by civil penalty or tax, people were encouraged to take care of the poor by divine incentive:

Thou shalt surely give him, and thine heart shall not be grieved when thou givest him: because that for this thing the Lord thy God shall bless thee in all thy works, and in all that thou puttest thine hand unto (Deut. 15:10).

Pursuant to these general principles, the Law required payment of a special three-year “tithe” specially designated for the poor. This duty was not backed by civil sanction, but encouraged by divine incentive:

At the end of three years thou shalt bring forth all the tithe of thine increase … and shall lay it up within thy gates: And the Levite … and the stranger and the fatherless and the widow, which are within thy gates, shall come, and shall eat and be satisfied; that the Lord thy God may bless thee in all the work of thine hand which thou doest. (Deut. 14:29-30).

The duty to help the needy, voluntary by nature, was a universal one, not just required of God’s chosen people. The writer of Proverbs, for example, pronounced blessing upon all who show “mercy” by giving to the poor and needy (Prov. 14:21; 22:9). The writer of Proverbs also attested that this duty to the poor is owed by all, because it is a duty owed to God as Creator:

He that oppresseth the poor reproacheth his Maker: but he that honoreth him (i.e., his Maker) has mercy on the poor (Prov. 14:31 Cf. Prov. 17:5).

Thus, the drafters of the Virginia Constitution concluded that the duty “to practise Christian forbearance, love, and charity towards each other” was a “duty of all,” Christian and non-Christian alike. That duty, therefore, was within the realm of religion, not the State, and both Christian and non-Christian were to be free of the State’s coercive power in the performance or nonperformance of it.

“Pure religion and undefiled,” wrote James under the inspiration of the Holy Spirit, “before God and the Father is this, To visit the fatherless and widows in their affliction …” (James 1: 27) (Emphasis added).

Under this analysis, then, not only are the Old Order Amish to be freed from paying the Social Security tax, but all people are constitutionally immune from forced payments of any kind to subsidize any welfare program benefitting the poor, the unemployed, the elderly, or any other “needy” class.

The Virginia and Maryland Religion Clauses

Section 16, Constitution of Virginia (June 12, 1776)

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; 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 practise Christian forbearance, love, and charity towards each other.

Article XXXIII, Constitution of Maryland (November 3, 1776)

That, as it is the duty of every man to worship God in such manner as he thinks most acceptable to him; all persons, professing the Christian religion, are equally entitled to protection in their religious liberty; wherefore no person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights; nor ought any person to be compelled to frequent or maintain, or contribute, unless on contract, to maintain any particular place of worship, or any particular ministry; yet the Legislature may, in their discretion, lay a general and equal tax, for the support of any particular place of worship or minister, or for the benefit of the poor of his own denomination, or the poor in general of any particular county ….


Back in 1988 Harvard Law Professor Alan Dershowitz challenged Pat Robertson, at the time a candidate for President, to defend his claim that only Christians and Jews are fit to hold civil office in America. Robertson did not back down:

Would you want a president who believed that women should commit suttee and jump on the funeral pyre of their husbands? … If you are a strong Muslim … you believe that Allah has determined the destiny of all people. Therefore it is not necessary to alleviate the plight of the poor. Dershowitz, Chutzpah 336-37 (1991).

Robertson’s point was obvious. One’s religious faith does influence one’s politics. Dershowitz’s counterpoint was more subtle. Just because one may believe a particular religious doctrine does not mean that one will act upon that tenet in performing the duties of public office.

Dershowitz went on to support his position that one’s personal religious faith cannot be relevant because the Constitution forbids the use of any “religious test” to determine if a person is qualified to hold any civil office. Id. at 337.

What Dershowitz failed to point out, however, is that the Constitution forbids the civil government from applying any religious test in setting the terms of eligibility for public office. It does not prevent the people, as electors, from considering a candidate’s religious faith as one factor in assessing his fitness for office.

In other words, the prohibition against religious tests is not designed to insulate government from religious influence, but is designed to protect the government from disqualifying candidates for civil office on the basis of any civil religious orthodoxy.

State Churches

Until 1961, it was generally assumed that the United States Constitution offered such protection only to persons seeking a federal government position On June 19 of that year, however, the United States Supreme Court struck down Maryland’s constitutional requirement that a personal belief in God was prerequisite to holding the office of notary public in the state. Torcaso v. Watkins, 367 U.S. 488 (1961).

Because the text of the Constitution is clear, banning any religious test as a qualification for “an “office or public trust under the United States,” the Court turned elsewhere to determine the constitutionality of the Maryland requirement. Relying on t11e First Amendment religion clauses, Justice Hugo Black ruled that such a religious test invaded an office seeker’s “freedom of belief and religion.” Id. at 496.

Although Justice Black did not rest his case squarely upon the Establishment Clause, he did note that religious tests for holding civil office had historically been associated with civil orders with official churches. Id. at 490.

The Maryland religious test was a case in point. The oath invalidated in Torcaso originated in the very first Maryland Constitution. Article XXXV of that 1776 document read:

That no other test or qualification ought to be required, on admission to any office of trust … , than such oath of support and fidelity to this State … and a declaration of belief in the Christian religion. Sources of Our Liberties 350 (R. Perry, ed. 1978).

To require a civil officer to affirm a personal faith in Jesus Christ, as well as fealty to the civil order, made sense at the time. Article XXXIII of the Maryland Constitution authorized the legislature to “lay a general and equal tax, for the support of the Christian religion.” Id. at 349. Article XXXIV gave to the legislature power to void any “gift, sale, or devise of lands, to any minister … or preacher of the gospel…or to any religious sect, order, or denomination.” Id. at 350.

With such governing authority over the tithes and offerings to the church, how could one hold civil office if one did not profess faith in the established Christian religion?

And so it was in Maryland’s sister states where there was some form of an established church. For example, the Vermont Constitution protected the “civil rights” of “any man who professes the protestant religion.”

At the same time, it provided that “every sect or denomination of people ought to observe the Sabbath, or Lord’s Day, and keep up, and support, some sort of religious worship ….” Article III, Constitution of Vermont (1777) in Id. at 365.

English Origins

The religious test for office was rooted in English law, an established church order. According to Blackstone, England united church and state from the very beginning:

[I]n the time of our Saxon ancestors there was no sort of distinction between the lay and ecclesiastical jurisdiction: the county court was as much a spiritual as a temporal tribunal: the rights of the church were ascertained and asserted at the same time and by the same judges as the rights of the laity. For this purpose the bishop of the diocese, and the alderman, or in his absence the sheriff of the county used to sit together in the county court, and had there cognizance of all causes as well ecclesiastical as civil… III Blackstone, Commentaries on the Laws of England 61 (1768).

Blackstone extolled “[t]his union of power” as “very advantageous” to both state and church:

[T]he presence of the bishop added weight and reverence to the sheriff’s proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders, as would otherwise have despised the thunder of mere ecclesiastical censures. Id. at 61-62.

This union of power was protested by the church in Rome. At first the church succeeded in separating the ecclesiastical from the civil jurisdiction, but that ended when King Henry VIII established himself “as Supreme head of the English church” (Id at 65) and “when all the jurisdiction usurped by the pope in matters ecclesiastical was restored to the crown, to which it originally belonged ….” Id. at 67.

But the controversy did not end there. From the time of Henry VIII through the reign of James II (1685-89) religious divisions in England threatened the very survival of the polity. King James n brought matters to a head by placing “Catholics into every branch of the government … until no Protestant felt safe in his office unless he was prepared to apostasize.”

To compound the problem, James II issued Declarations of Indulgence granting liberty of worship to “the Catholic and Protestant dissenters” and dispensing with religious tests for civil office. Sources of Our Liberties 225 (R. Perry, ed. 1978).

This threat to the established church order came to an end with James II’s abdication of the throne in 1688. Id. at 222. In 1689 William and Mary were proclaimed king and queen of England under a Bill of Rights that restored the Church of England to its preferred position and barred any Catholic from ever occupying the throne. To that end, kings and queens of England were required to swear an oath of fealty to the Church of England and to submit to “the sacraments according to the rites” of that church. Id. at 225, 249-50.

As for religious freedom for adherents to the Catholic faith, there was none. Protestant dissenters fared better under the Toleration Act of 1689, but they faced numerous “civil disabilities …, the principal one being that the Nonconformists could not hold public office.” Id at 240.

Colonial Heritage

This English heritage of religious conformity backed by civil power was brought to America under the various colonial charters. Nowhere was this more pronounced than in the colony of Massachusetts Bay founded by the Nonconformist Puritans. From the beginning only those whose religious beliefs conformed to that of the established church “could hold office and take part in civic affairs.” Id. at 78.

As in England, the reason for the religious test for civil office was that the jurisdiction of the state extended to the governance of the church. Thus, the Massachusetts Body of Liberties of 1641 proclaimed:

Civill Authoritie hath power and libertie to see the peace, ordinances and Rules of Christ observed in every church according to his word, so it be done in a Civill and not in an Ecclesiastical way. Id. at 154

The established Nonconformist Puritans soon faced, as had the Church of England, religious dissenters in their midst. In 1635 and 1636 the Reverend Thomas Hooker led groups of settlers to Connecticut. While these left Massachusetts primarily in protest of the “wide discretionary powers of the magistrates,” it is also likely that the emigration was prompted by “religious differences.” Id. at 115.

The Preamble to the Fundamental Orders of Connecticut of 1639 indicate that one of the purposes of the founding of the new colony was “to maintain and preserve the liberty and purity of the gospel of our Lord Jesus.” The Orders also spelled out the oaths of office of the governor and civil magistrates. Both oaths required the office holder to swear in the name of God, to rule in accordance with “God’s word,” and to call on God for help. But neither required an affirmation of any personal belief in God or of adherence to any particular tenets of the Christian faith. Id. at 123-24.

In 1636 Roger Williams led another group of religious dissenters to found the settlement of Providence. Religious Separatists, these dissenters drew up a “written covenant… provid[ing] that the authority of civil government should not extend to religious matters.” ld at 164.

Williams later secured a charter from King Charles II guaranteeing that no person in the colony of Providence and Rhode Island would be required to “take or subscribe” to any personal religious oath in order to hold civil office. Id. at 170, 173.

This principle was adopted in 1677 in the Concessions of West New Jersey. Drawn up by William Penn, the fundamental law of that colony provided that “no person could be disqualified from holding public office because of his religious convictions.” Id. 182-83.

Virginia Legacy

Following the War for Independence, the differences over the legitimacy of religious tests for civil office continued. Rhode Island stood firmly against such tests.

Pennsylvania watered down its test from a requirement of profession of faith in Jesus Christ to an acknowledgment in “the being of a God.” Id. at 329. Contrast XXXIV of the 1862 Frame of Government of Pennsylvania. Id at 220.

The differences in the early state constitutions appeared directly proportional to the extent of jurisdiction that the new State governments exercised over the church. The more limited the jurisdiction, the less restrictive the religious test.

In Virginia, the state had been denied all jurisdiction in matters of religion. Because one’s faith in God and in the Christian religion belonged exclusively to God, Jefferson and Madison both maintained that to require a religious test for civil office would illegitimately encroach upon God’s exclusive authority, and consequently upon man’s civil liberty.

Jefferson put it this way in his preamble to his 1786 Act for Establishing Religious Freedom:

Well aware that Almighty God created the mind free … that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others … that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust … , unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which in common with his follow citizens he has a natural right ….

Christianity and America

Gary North has asserted that Jefferson’s Act “was the capstone of Madison’s 15- year war against religious test oaths” [North, Political Polytheism 449 (1989)] and that Madison’s opposition to such oaths was central to “his long-term goal of separating Christianity from civil government – not just separating Church from State, but Christianity from civil government:”

He knew what had to be done in order to accomplish this goal: the severing of the binding power of Trinitarian religious oaths that were required of state officers in several states. Id. at 443.

North is wrong. Madison opposed the religious test oaths, not because they were “Trinitarian,” for many of them were not. If his goal was to sever Christianity from civil government, he could have accomplished that by simply supporting innocuous religious tests such as belief in God.

But he opposed all religious test oaths because he believed them to be outside the “cognizance of civil power.” That is, he believed that a man’s opinion about Jesus Christ belonged exclusively to God, not to God as mediated by Caesar no matter how Trinitarian Caesar may be:

Whilst we assert for ourselves a freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered.

With this statement, Madison positioned himself squarely within the teaching of Jesus Christ who proclaimed that one was to render unto Caesar only that which belongs to Caesar and to God that which belongs to God (Luke 20:25). He also took his stand with the early church which refused to bow down to the “religious department” of the Roman empire and continued to teach in the name of Jesus: “We ought to obey God rather than men” (Acts 5:29).

Madison demonstrated further that his opposition to religious test oaths was jurisdictional, not substantive, when he opposed efforts by Jefferson to disqualify clergymen from holding civil office in Virginia:

Does not the exclusion of Ministers of the Gospel as such violate a fundamental principle of liberty by punishing a religious profession with the privation of a civil right? does it [not] violate … (Article 16 of the Virginia Constitution) which exempts religion from the cognizance of Civil power? 5 Writings of James Madison 288 (G. Hunted. 1904).

The essence of Madison’s position was this. Whether or not a minister of the gospel could legitimately serve as a civil officer was a matter of church doctrine to be settled by the church, not by the state. Otherwise, the government authorities would be “insinuating themselves in ecclesiastical affairs or disputes.” McDaniel v. Paty, 435 U.S. 618, 638 (1978) (Brennan, J. concurring).

Finally, the text of Article VI, Paragraph 3 itself demonstrates that Madison did not have the Machiavellian purpose attributed to him by North. That provision bans religious tests only in relation “to any office or public trust under the United States.” If Madison had the purpose attributed to him by North, then he would have sought a ban on religious test oaths for the holding of state civil office as well.

The ban on religious test oaths was not, then, designed to separate the United States of America from Christianity. Nor was it designed to require that public policy shed its Biblical origins and principles. To the contrary, the ban was dictated by Biblical law that one’s personal faith in God is not a legitimate object of civil government.

One could argue that even after ratification of the 14th Amendment, state religious tests have not been prohibited. This is so because that Amendment only prohibits states from abridging “the privileges and immunities of citizens of the United States.” Holding a state civil office is hardly such a privilege or immunity.

Therefore, denial of access to such an office on account of a religious test could not constitute an unconstitutional abridgment. See Titus, “The Bill of Rights: Its Text, Structure and Scope” (1994).

First:   Defining Religion; No Preference v. No Jurisdiction
Third:   Establishment Clause Public Policy
Last:   The Religion Clauses: An Epilogue


*     Copyright © 1994, 1995, 2021 Herbert W. Titus. This article originally published in The Forecast, Vol. 1, Nos. 13-24 and Vol. 2, Nos. 1-4 (1994-95). 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.