The Establishment Clause:
A Question of Jurisdiction
by Herbert W. Titus
With the ascendancy of the Ayatollah Khomeini in Iran in the late 1970’s, it quickly became common-place in America to raise the spectre of Islamic fundamentalism whenever anyone introduced religious views into the debate and deliberation on matters of public policy.
Harvard Law Professor Alan Dershowitz has contended that “the growing trend toward introducing Christian religious principles into public life” is a threat to Jews and every other religious minority in America. Dershowitz, Chutzpah 330 (1991). While Dershowitz found the efforts of the Christian right to influence educational policy particularly reprehensible, he condemned the use of any “religious-political ideology” by anyone (including “the Jewish right”) to influence any election or any public policy debate. Id. at 313-36.
Relying on the “constitutional doctrine of separation of church and state,” Dershowitz has urged that all government policy debates and discussion be conducted in “religiously neutral” terms. That is, without any overt reliance on one’s religious views. Such views are to be kept private, inside the church or synagogue or the home.
Fearing that the country would become divided on religious lines or, worse still, would become a religious state like Iran, a goodly number of Americans have been convinced by arguments such as the one put forth by Dershowitz. In their eyes, politically active groups like Jerry Falwell’s Moral Majority and Pat Robertson’s Christian Coalition are not only wrong- headed, but illegitimate.
Others, like Harvard Law Professor Laurence Tribe, have conceded their legitimacy but only reluctantly. Following the decision of the Supreme Court in Roe v. Wade, 410 U.S. 113 (1973), Tribe argued “that the inescapable involvement of religious groups in the debate over abortion rendered the subject [of abortion] inappropriate for political resolution and hence proper only for decision by the woman herself.” Tribe, American Constitutional Law 1349-50 (2d ed. 1988).
Five years later Tribe changed his mind. In his latest treatise on constitutional law he has admitted that his earlier view gave:
too little weight to the value of allowing religious groups freely to express their convictions in the political process, underestimates the power of moral convictions unattached to religious beliefs on this issue, and makes the unrealistic assumption that a constitutional ruling could somehow disentangle religion from future public debate on the question. Id. at 1350.
Strict Religious Neutrality
While Tribe has acquiesced to religious views in public debate, he has marginalized such views by ruling them illegitimate in the formulation of public policy, except under a very narrow set of circumstances.
In his section on the Establishment Clause, he has insisted that government regulations, if at all possible, be justified on “secular” terms, not religious ones. What is meant by “secular” and “religious” can only be inferred from the examples that Tribe has provided. He, like the courts, have treated the terms as if their meanings are self-evident. Id. at 1204-14.
Just because a state law “coincided with the beliefs of a religion, or because it originated in a religion” would not, in Tribe’s opinion, disqualify it under the Establishment Clause. Otherwise, he has conceded, his constitutional formula would forbid even “(l)aws against murder … because they overlap the fifth commandment of the Mosaic Decalogue.” Tribe, American Constitutional Law 1205 (1988).
But, according to Tribe, such laws must not get their current legitimacy from such religious beliefs or origins. If they did, then they would be unconstitutional. Under this view, no law prohibiting murder could survive Establishment Clause scrutiny if the Bible or Biblical principles were the only foundation for protecting the sanctity of human life.
To illustrate this point, Tribe pointed to the Supreme Court opinion upholding the Sunday closing laws. The Court affirmed their constitutionality on the ground that they no longer served their original religious purpose. McGowan v. Maryland, 366 U.S. 420, 445 (1961). Presumably, a state’s laws prohibiting murder or sodomy could no longer be justified upon Biblical grounds, as they have traditionally been in Blackstone’s Commentaries or in early American court opinions. There would have to be modem secular reasons to sustain them.
This follows, Tribe has argued, from the Establishment principle that the government may not convey a “message of government endorsement or disapproval of religion”‘ Id. at 1284. If a government has available to it “nonreligious” reasons to support its policy choice, but has chosen “religious” reasons instead, then “a message of endorsement is virtually unavoidable.” Id. at 1285.
“Religious tools” may be used, Tribe has written, to carve out a public policy decision, only if there are no secular ones available and only if the “religious tools will suffice to pursue a relevant free exercise value.” Id at 1288. To illustrate the application of this exception, Tribe has given this justification for the employment of chaplains in the military service:
[G]overnment can facilitate soldiers’ free exercise only by hiring military chaplains and, through them, engaging in religious speech and observances; no non-religious alternative is plausible. Id at 1285-86.
Tribe’s views were recently adopted by the Supreme Court in Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S._, 129 L. Ed 2d 546 (1994 ). In this case the New York state legislature constituted a village, composed solely of Jews of the Satmar Hasidic sect, as a separate public school district. The legislative history revealed that this action had been taken to enable the people of the village to take advantage of government funds to educate their handicapped children in an atmosphere more suitable to their peculiar religious lifestyle.
Pursuant to the Act, the village did establish a public school, but only for its handicapped children The public school curricula was “secular,” with administrators and instructors from outside the village and the Satmar sect. All of its other children attended private schools where they were taught according to their strict religious doctrines.
Justice Souter ruled the New York law unconstitutional because the legislature had made a “purposeful delegation [of power] on the basis of religion,” and, therefore, had failed “to exercise governmental authority in a religiously neutral way.” Id., 129 L. Ed 2d at 558, 560. He found further that the legislation was not necessary to “accommodate” the free exercise needs of the Satmars:
[T]here are several alternatives here for providing … special education to Satmar children …. Since the Satmars do not claim that separatism is religious mandated, their children may receive … [such] instruction [through a nearby public school district, and if necessary] at a neutral site near one of the village’s parochial schools …. Id., 129 L.Ed 2d at 563.
Justice Souter claimed that his ruling was necessitated by history and by precedent as the Establishment Clause requires “the application of a principle like neutrality toward religion as well as among religious sects.” Id., 129 L.Ed 2d at 565.
Religious Public Policy
Justice Souter is wrong. His standard of strict religious neutrality in the formulation of public policy is inconsistent with the both history and precedent. This can best be illustrated by an examination of the history and of the current policy governing military and legislative chaplains.
Beginning with the Revolutionary War and continuing to the present day, the military have employed chaplains at taxpayer expense. At the outset this policy was hardly “religiously neutral,” and, contrary to Tribe’s claim stated above, not at all calculated to insure an individual soldier’s need to freely exercise his personal religious faith. See Cord, Separation of Church and State 54-55 (1982)
The purpose of the office of the military chaplain was to help train “Christian soldiers.” General George Washington made that clear in his initial order, dated July 9, 1776, implementing the appointment of chaplains:
The Hon. Continental Congress having been pleased to allow a Chaplain to each Regiment … The Colonels or commanding officers of each regiment are directed to procure Chaplains accordingly; persons of good Characters and exemplary lives – To see that all inferior officers and soldiers pay them suitable respect and attend carefully upon religious exercises. The blessing and protection of Heaven are at all times necessary but especially so in times of public distress and danger – the General hopes and trusts, that every officer and man will endeavor to so live, and act, as becomes a Christian soldier defending the dearest Rights and Liberties of his country. Reprinted in Cousins, “In God We Trust” 50-51 (1958).
By requiring his soldiers to “respect” the chaplains and to “attend” religious services conducted by them, Washington hoped to shape his army into a fighting force with “Christian character.” Thus, he forbade “profane cursing, swearing, and drunkenness” (General Order July 4, 1775) for “we can have little hopes of the blessing of Heaven on our Arms, if we insult it by our impiety, and folly ….” (General Order August 3, 1776). Id.
In addition, he sought to cultivate in his men a Christian lifestyle of worship and thanksgiving to God. Here was his order to the troops from his headquarters in Valley Forge, issued on May 2, 1778:
While we are zealously performing the duties of good Citizens and Soldiers we certainly ought not to be inattentive to the higher duties of Religion. To the distinguished Character of Patriot, it would be our highest Glory to add the more distinguished Character of Christian. The signal instances of providential Goodness which we have experienced and which now almost crowned our labours with complete success, demand from us in a peculiar manner the warmest returns of Gratitude and Piety to the Supreme Author of all Good. Id. at 51.
There is every reason to believe that this decidedly religious reason for the office of the military chaplain continued following the adoption of the Constitution and the First Amendment. On March 3, 1791, the First Congress authorized the President to appoint a chaplain for the appoint a chaplain for the “Military Establishment of the United States.” The Second and Third Congresses reaffirmed the office of the military chaplain with appropriations of federal tax money to support it. Cord, Separation of Church and State 54 (1982).
During the early history of the American Republic, her national leaders continued through inaugural addresses and proclamations to acknowledge the nation’s dependence upon Almighty God. Washington’s first Inaugural Address and his first National Thanksgiving Proclamation, for example, read like his earlier Orders when he was commanding the Revolutionary Army:
It would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe, who presides in the Councils of Nations, and whose providential aids can supply every human defect, that his benediction may consecrate to the liberties and happiness of the People of the United States…. (Inaugural Address, April 30, 1789). Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor …. (Thanksgiving Proclamation, October 3, 1789).
Remarkably, the Thanksgiving Proclamation was prompted by a Congressional Resolution requesting the President to issue such a proclamation acknowledging the “many signal favours of Almighty God ….” The resolution was approved by the House of Representatives on September 25, 1789, “the day following its final approval of the religion clauses.” Dreisbach, Real Threat and Mere Shadow 150 (1987).
So America’s first President and first Congress did not think that the First Amendment Establishment Clause dictated “religious neutrality” in the conduct of the nation’s business, including the continuation of the office of the military chaplain.
The office of chaplain was not confined to the military. The First Congress also established the office of legislative chaplain. This action was not taken, as strict separationist Leo Pfeffer has claimed, “as a matter of course.” Rather, as Robert Cord has shown, the matter was carefully considered by a joint House-Senate committee formed for that purpose. Cord, Separation of Church and State 23-24 (1982).
The Supreme Court considered this historic fact of great significance when it upheld legislative chaplaincies against a constitutional challenge under the Establishment Clause:
On September 25, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights. Clearly the men who wrote the First Amendment Religion Clauses did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. It has also been followed consistently in most of the states …. Marsh v. Chambers, 463 U.S. 783, 788-89 (1983).
The Court in Marsh deliberately refused to apply the three-part test requiring a secular purpose to justify the office of legislative chaplain. As Justice William J. Brennan protested in dissent, the majority knew that had they applied the test, they would have struck down the practice. Id., 463 U.S. at 797-800.
That is why Tribe has found the Marsh precedent “deeply problematic” and that is also why Justice Souter has openly questioned the constitutional legitimacy of tax supported chaplains for the military and the nation’s legislatures. Lee v. Weisman, at 505 U.S. —, 120 L.Ed 2d 467, at 505, 508-09 (1992) (concurring opinion).
If Justice Souter does succeed in convincing his Court colleagues to extend the Tribe neutrality formula to the nation’s traditional chaplaincy policy, he will do so not because of history and precedent, but despite it. For even the most recent court precedent upholding the military chaplaincy has conceded that “the morale of our soldiers, their willingness to serve, and the efficiency of the Army as an instrument for our national defense rests in substantial part on the military chaplaincy, which is vital to our Army’s functioning.” Katcoff v. Marsh, 755 F. 2d 223, 237 (2d Cir. 1985).
Despite a long-line of cases demanding religious neutrality in public policy, the courts have consistently found tax-supported legislative and military chaplaincies constitutional. Marsh v. Chambers, 463 U.S. 783 (1983); Katcoff v. Marsh, 755 F. 2d 223 (2d Cir. 1985). Yet the constitutionality of civil chaplaincies remains unsettled.
This is due, in part, to opposition from critics such as Harvard Law Professor Laurence Tribe and to questions raised by skeptics such as Supreme Court Justice David Souter. See Tribe, American Constitutional Law 1284-1297 (2d Ed. 1988) and Lee v. Weisman, 505 U.S. —, 120 L.Ed 2d 467, 505, 508-09 (1992) (concurring opinion).
But the primary reason why the issue has not been resolved is the failure of the courts to embrace a correct understanding of the relationship between the Establishment Clause and public policy.
With the school prayer cases in the 1960’s, the Supreme Court began to insist that the Establishment Clause required that state educational policy rest upon a “secular purpose.” See Abington School District v. Schempp, 374 U.S. 203 (1963). In 1971, the Court enshrined this requirement as the first prong of a three-part test, designed to keep public policy measures religiously neutral. Lemon v. Kurtzman, 403 U.S. 602 (1971).
Since the 1970’s, the Court has applied this religious neutrality principle to a wide variety of public policy measures, from Christmas displays on public property to tax subsidies for family counseling. See Lynch v. Donnelly, 465 U.S. 668 (1984) and Bowen v. Kendrick, 487 U.S. 589 (1988).
In the midst of this sea of precedents is Marsh v. Chambers, supra, the legislative chaplaincy case. In order to uphold America’s longstanding chaplaincy tradition, Chief Justice Warren Burger refused to apply the religious neutrality test. Yet he failed to articulate any alternative to it. Instead, he relied solely on history, thereby relegating the civil office of chaplain to the status of an historical anomaly to be tolerated as an insignificant threat to the religious neutrality principle. Marsh v. Chambers, supra, at 791. See Dreisbach, Real Threat and Mere Shadow 161-64 (1987).
But the chaplaincy policies enacted by the First Congress are not “de minimis” exceptions to an Establishment Clause principle of religious neutrality, as Justice David Souter has recently suggested. Lee v. Weisman, supra, 120 L.Ed 2d at 508-09. To the contrary, the Establishment Clause cannot possibly be construed to require religious neutrality in public policy for its very foundation rests upon a Christian view of the relationship between church and state, and between the individual and the civil government.
Since 1947, the Supreme Court has consistently traced the meaning of the Establishment Clause to the Virginia legacy of religious freedom, the chief architects of which were Thomas Jefferson and James Madison. In particular, the Court has claimed that the meaning of the Establishment Clause is rooted in the Virginia Assembly’s refusal in 1786 to renew Virginia’s tax levy for the support of the established church. Everson v. Board of Education, 330 U.S. 1 (1947).
Both Jefferson’s statute and Madison’s defense of it, demonstrate conclusively that the Virginia measure, divesting the state of jurisdiction to enforce the church tithe, rested upon a religious foundation and embraced a religious purpose. Indeed, both the foundation and the purpose of the Act were explicitly Christian.
A Christian Legacy
In the very first paragraph of the Preamble of his Act for Establishing Religious Freedom, Jefferson laid a Christian base for his public policy proposal. First, he stated that “Almighty God hath created the mind free;” second, he asserted that “the Holy Author of our religion” chose to leave the mind free from all “temporal punishments or burthens, or … civil incapacitations.” From these two fundamental propositions, Jefferson concluded that it was “presumptuous … [for] fallible and uninspired men” to exercise forcible “dominion over the faith of others” when God Almighty himself chose not to do so.
This is hardly a religiously neutral claim. Yet it served as Jefferson’s threshold justification for a law prohibiting the state from compelling a man “to frequent or support any religious worship, place or ministry ….”
And what was Jefferson’s purpose in this? First of all, he sought a policy that would promote true religion by depriving civil and ecclesiastical rulers of the power that had been used to “establish … and maintain … false religions over the greatest part of the world, and through all time.” By outlawing such power, Jefferson believed that true Christianity would be given room to flourish free from state corruption that bribed through “worldly honors and emoluments, those who will externally profess and conform to it….”
Madison’s defense, in his 1785 Memorial and Remonstrance, reinforced both Jefferson’s religious rationale and his object. As for the statute’s rationale, Madison began that it was “the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him.” From this premise, he reasoned, that no man could enter into a civil society without “a saving of his allegiance to the Universal Sovereign.” Such a duty, Madison asserted, was “precedent both in order of time and degree of obligation.” According to Madison, then, no man could, without violating the Law of God, concede to the State the power to enforce any duty that God had reserved exclusively to Himself. This is not a religiously neutral claim. Yet it served as the foundational principle upon which Madison denied to the State the right to use its power to collect the church tithe in support of teachers of the Christian religion.
And for what purpose? Madison, like Jefferson, warned that to adopt any other policy would condemn Virginia to repeat the errors of the past, as Rulers “in all ages, and throughout the world” have used the power of the State to promote false religions.
During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution.
Further, Madison claimed that to back up the tithe with civil power was “a contradiction to the Christian Religion itself.” It was, Madison wrote, a contradiction in fact:
[F]or it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them ….
Civil enforcement of the tithe, Madison continued, also contradicted the very tenets of the Christian faith:
…[A] religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy.
Finally, Madison concluded, civil reinforcement of Christian religious duties was a flawed evangelistic stratagem, “adverse to the diffusion of the light of Christianity:”
[for it would] weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits.
In summary, Madison, like Jefferson, embraced the No Establishment principle because it was dictated by the Christian religion for the purpose of promoting that religion. That is not doing the public’s business on religiously neutral terms. Yet modernists claim that religious neutrality is the legacy left by these two men and deposited in the No Establishment Clause of the First Amendment.
A Secular Heresy
It is commonplace for many modem commentators first, to divide Jefferson from Madison and, then, to claim that both endorsed a No Establishment principle of strict religious neutrality. Laurence Tribe is representative of this view.
Tribe contends that Jefferson “saw separation (of church and state) as a means of protecting the state from the church.” In support, Tribe notes that Jefferson supported both a law “to disestablish the tax-supported Anglican church” and that he urged that “the clergy be barred from public office.” Tribe, American Constitutional Law, supra, at 1159.
On the other hand, Tribe concedes that Madison saw separation as benefitting both church and state. But he claims that Madison’s solution was to leave each “free from the other within its respective sphere ….” Id.
For those who hold to a strict understanding of this view of the Establishment Clause, there is no room for religion to influence politics. Otherwise, the state would become hopelessly entangled in sectarian disputes and become helplessly divided along religious lines. See Dershowitz, Chutzpah 313- 42 (1991).
Others, like Tribe, are willing to allow for the active expression of religious views in the political arena – in the name of free speech- but they lift the neutrality line when it comes to the formulation of public policy:
[W]hen government uses religious means where nonreligious ones would suffice, it moves from accommodating religion to participating in religion by endorsing it as a preferred path to a desired end.. Tribe, supra, at 1284.
In other words, Tribe puts his constitutional stamp of approval only on those public policies that may “acknowledge” the existence of religious belief and religious believers, but only to “accommodate” them, never to “endorse” them by adopting any religious tenet as the basis for any public policy measure. Otherwise, “[b]y adopting the language and precepts of a religion as its own, government implies that non-adherents are outsiders.” Id. at 1285.
Formulas such as these may relieve functional atheists and agnostics from anxieties over second-class citizenship (See Dershowitz, Chutzpah, supra), but they definitely force Christians and other religious adherents to leave their Biblical or other religious views at home or at church when they enter the legislative chamber, the executive office, or the courtroom.
Such a view, if strictly enforced, would bring down the institution of the legislative chaplaincy, as well as presidential proclamations calling the nation to prayer, invocations calling for God’s protection at the start of judicial proceedings in the federal courts, and a number of other historical “endorsements” of God in matters of public policy formulation and administration. See Tribe, American Constitutional Law, supra, at 1289-97.
To date, the Supreme Court has not applied its No Establishment neutrality policy to delete “In God We Trust” from America’s currency or “one nation, under God” from the Pledge of Allegiance. A number of individual justices (and others) have “cleansed” such slogans by suggesting “that such practices … can best be understood … as a form of ceremonial deism,’ protected from Establishment Clause scrutiny chiefly because they have lost through rote repetition any significant religious content….” Lynch v. Donnelly, supra, 465 U.S. at 716 (Brennan, J. dissenting). See also Tribe, supra, at 1295, n. 85.
But what does one do with President George Bush’s call to the American people for prayer during the 1990 Gulf War or General Norman Schwarzkopf’s invocation of the blessings of God on behalf of the troops that he commanded in that conflict. Such acts, if purified of all religious content, become either meaningless or mocking. And so would the traditional prayer – “God save the United States and this Honorable Court” – at the opening of each session of the United States Supreme Court.
Such revisionism has been necessitated only because the Court and its supporters have made a mockery of the No Establishment Clause itself, construing it in such a way as to dictate the surgical excision of religion from American public life. That is not the legacy of Jefferson or Madison. Nor is religious neutrality in public policy required by the constitutional text. Rather, correctly understood, the text permits, although it does not require, the active employment of religious tenets in the formulation and implementation of public policy, but only in those areas where the State has jurisdiction.
Since 1942, when the United States Supreme Court decided Everson v. Board of Education, 330 U.S. 1 (1947), there has been little dispute that the meaning of the First Amendment religion clauses is found in the Virginia legacy of religious freedom expounded by Madison and Jefferson.
Those two men deposited that legacy primarily in three documents: Article I, Section 16 of the 1776 Virginia Constitution (as amended by Madison), the 1785 Memorial and Remonstrance Against Religious Assessments (written by Madison), and the 1786 Statute for Establishing Religious Freedom (written by Jefferson). Careful analysis reveals that the latter two documents are explanations and applications of the principles contained in the Constitutional provision.
The question addressed by the Memorial and Remonstrance and the Statute was whether education was religion within the meaning of Article I, Section 16 of the Virginia Constitution? If so, then the state had no jurisdiction to educate or to impose any tax in support of a general educational program.
Both Madison and Jefferson agreed that the state had no authority over education. Jefferson reasoned that Almighty God had created the mind free, “insusceptible to restraint,” and that, the mind could not remain free if the State could through its taxing power “compel a man to furnish contributions of money for the propagation of opinions which he disbelieves.”
Madison, likewise, determined that “the opinions of men” cannot, by nature, be coerced to conform to the opinions of any other man. What a man believed to be true was a subject belonging exclusively to God. If a man embraced a false opinion, then “it is an offence against God, not against men.” Titus, “No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion,” 22 Cumberland Law Review 505, 506-16(1991-92).
The key language of the Virginia Constitution, upon which both Jefferson and Madison relied, was its definition of religion. According to Article I, Section 16, “religion” encompassed all of mankind’s duties that, by their nature, could only be enforced by “reason and conviction, not by force or violence.”
The nature of a duty, whether religious or civil, was determined by the law of the Creator. Madison, therefore, began his Remonstrance with a paragraph devoted to discovering the rule governing the opinions of mankind as laid down by the “Governor of the Universe.” Jefferson, likewise, opened the Preamble to his statute with the proposition that “according to the plan of the Holy Author of our religion” the mind of man must be kept completely free from the power of the civil government.
Given this meaning of religion in the First Amendment, every public policy question presents a threshold jurisdictional issue that can only be resolved by reference to the Christian religion. The threshold questions are these: Does this subject belong exclusively to the Creator? Or is it one that the Creator has delegated to civil government? Is the breach of this duty a sin only? Or is the breach of this duty a civil wrong as well?
If a subject belongs exclusively to “reason or conviction,” then the duties related to that subject cannot be enforced by the civil ruler. For the civil ruler, by definition, uses “force and violence” to enforce the subjects and duties under its jurisdiction (Rom. 13:4).
Marriage and Polygamy
The United States Supreme Court took this jurisdictional approach when it addressed the constitutionality of a statute outlawing polygamy in the Territory of Utah. The Court recognized that the “word, religion’ [was] not defined in the Constitution” so that it had to go “elsewhere … to ascertain its meaning ….” Reynolds v. United States, 98 U.S. 145, 162 (1878).
Without hesitation, the Court consulted the writings of Madison and Jefferson, referring first to the 1776 Virginia constitutional definition of religion as “the duty we owe to our Creator” and then to the Preamble to the 1786 Virginia Statute. From both of these references the Court concluded that religion was a jurisdictional term distinguishing that which “belongs to the Church” from that which belongs “to the State.” Id., 98 U.S. at 163.
At the outset, the Court noted that a law prohibiting the act of polygamy was not like a law providing for state tax support of education, the subject of the seminal jurisdictional controversy in the late 18th century in Virginia. The Virginia law dealt with jurisdiction over opinion. As for opinions, the First Amendment, the Court ruled, like Article I, Section 16 of the Virginia Constitution, deprived Congress “of all legislative power over” them. Id., 98 U.S. at 164.
As for acts, the Court launched its own investigation whether the act of entering into a second marriage was a subject within the jurisdiction of civil authorities. It found that the common law not only treated “tile second marriage [as] always void, but “as an offense against society.” It found further that, although polygamy had been enforced by the English ecclesiastical courts, it had always been considered a civil offense.
It then turned to the American treatment of polygamy where it found that, without exception, all of the states treated polygamy as a civil offense. In particular, the Court emphasized that in 1788 – after the enactment of Jefferson’s Statute for Establishing Religious Freedom – Virginia had enacted an English statute making polygamy a civil crime. Id., 98 U.S. at 164-65.
From this uninterrupted history of Anglo-American jurisprudence, the Court went on to considerations of natural law where it discovered that marriage, although a sacred obligation, is
a civil contract, regulated by law. Upon it society may be said to be built, and out of its .fruits spring social relations and social obligations and duties, with which government is necessarily required to deal. Id., 98 U.S. at 165.
In addition, the Court discovered that the liberty of all of the people of a nation depended primarily upon whether “monogamous or polygamous marriages are allowed:”
…[P]olygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Id., 98 U.S. at 165-66.
The Court concluded, then, that “it is within the legitimate scope of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion.” Id., 98 U.S. at 166.
Eleven years later, the Court reaffirmed its position that tile civil government had jurisdiction over acts in derogation of marriage:
Bigamy and polygamy are crimes by the laws of all civilized and Christian countries … They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Davis v. Beason, 133 U.S. 333, 341 (1889).
Again, the Court reasoned that the practice of polygamy was not a matter of individual conscience, immune from civil sanction. But polygamy was like murder, civil jurisdiction over which was undeniable. ld, 133 U.S. at 342-44.
Having concluded that marriage was within the jurisdiction of civil government, the Court did not inquire further. That is, the Court did not ask whether the civil government had adopted its laws prohibiting polygamy for “religious” reasons or for “secular” ones. It recognized implicitly that the religion clauses of the First Amendment did not prescribe “religious neutrality” in the formulation of public policy. This assumption accorded with a century of practice.
The First House of Representatives, which approved the First Amendment, debated the question whether the Establishment Clause prevented the House from passing a Resolution requesting the President to issue a Thanksgiving Proclamation:
recommending to the people o,(the United States a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God, especially by affording them an opportunity to establish a Constitution of government for their safety and happiness. Cord, Separation of Church and State 27-28 (1982).
No one objected to this Resolution because it called for a religiously oriented proclamation. To the contrary, the question raised was whether such a proclamation was or was not “a business with which Congress have … [something] to do.” Id at 28. If giving thanks was a “religious matter,” then the Establishment Clause forbade a Presidential Proclamation whatever its content.
This was Thomas Jefferson’s point when he broke with the tradition that Washington and Adams had set in issuing presidential Thanksgiving Proclamations. In Jefferson’s opinion, such a Proclamation “intermeddled with religious exercises,” within the exclusive jurisdiction of private religious societies. Id at 40.
On the other hand, Jefferson had no difficulty invoking the name of God in his Second Inaugural Address, a subject within his jurisdiction as President:
I shall need the favor of that Being in whose hands we are, Who led our forefathers … from their native land, and planted them in a country flowing with all the necessaries and comforts of life; Who has covered our infancy with His providence, and our riper years with His wisdom and power … I ask you to join me in supplication, that He will enlighten the minds of your servants, guide their councils, and prosper their measures, that whatsoever they do shall result in your good, and shall secure to you peace, friendship, and approbation of all nations.
Nor did he have constitutional difficulty with statutes and treaties designed for the propagation of the Christian gospel among the Indian nations that remained within the territorial jurisdiction of the United States. As Robert Cord has pointed out, not only did Jefferson not veto laws extending the grant of lands to “the society of the United Brethren for propagating the gospel among the heathen” (Id. at 42-45), but he asked the Senate to ratify a treaty with the Kaskaskia Indians, one term of which provided for funds from the national treasury to pay the salary of a Catholic priest to the Indians and to build a church for them. Id. at 38-39.
Again, Jefferson as president had jurisdiction to negotiate agreements with foreign nations. Pursuant to that authority, he did not consider himself constrained by the Establishment Clause to pursue a “religiously neutral” policy.
To the contrary, if he thought that Christianizing the Indian peoples was the best means of bringing peace, he could implement that as the public policy of the nation.
Today, those who claim that the Establishment Clause calls for strict religious neutrality in the formulation and justification of public policy have chosen to ignore Jefferson’s reliance upon Christian principles in discharging his duties as President. In their zeal to promote their vision of a secular America, they have misrepresented the true meaning of the Establishment Clause and its purpose as intended by its two major architects.
The role that the Christian religion once played in the formulation of public policy in America has been all but forgotten. Today, hardly anyone in public life relies on the Bible to justify any policy choice. Very few even refer to the nation’s charter, the Declaration of Independence, as the source of civil law and liberty. That document’s endorsement of the “laws of nature and of nature’s God,” of God-given rights, and of God’s sovereignty has been drowned in a sea of evolutionary humanism.
Even the “Christian Right” has failed to restore the Bible and the laws of God to the political and public policy arenas. This is so because the leaders of the new Christian conservative movement do not have a theologically based political and legal philosophy to apply to the issues of public policy. Consequently, they have accepted the legal and political turf given to them by their opposition and the rules established by that opposition for determining who occupies the contested ground.
The battle over school prayer is illustrative. A few years back, prayer opponents took their court offensive from the public school classroom (where for two decades they had been consistently victorious) to the graduation ceremony. In 1992, they came away with yet another victory when the U.S. Supreme Court struck down, by a vote of 5-4, clergy-led prayer at graduation exercises. Lee v. Weisman, 505 U.S. —-, 120 L. Ed. 2d 467 (1992).
Following the Weisman defeat, prayer proponents seized upon language in the court’s several opinions that appeared to permit student led voluntary prayer. Armed with this language, they launched a nationwide campaign not only to defend such prayer at graduation time, but to establish in the fall of each year voluntary prayer around the flag pole on school grounds.
Now, with the Republican take-over of the House of Representatives and the Senate, prayer proponents are hoping to enshrine their voluntary student-led prayer movement into the constitution. By doing so, they risk legitimating their opponents’ position, namely, that official prayer, including that offered by chaplains paid out of public funds, is a violation of the Establishment Clause.
More significantly, they risk legitimating tax-supported public schools, the constitutionality of which has never been challenged much less sustained. In addition, they leave untouched court precedents that require the removal of all vestiges of a religious worldview from the public school classroom.
Of what significance is a constitutional right for individual students or groups of students to pray – at the beginning of the day or at the end of twelve years of education – when students are taught in their history and government classes as if God does not exist and the Bible is irrelevant? Will not God and His Law continue to play, at best, a symbolic role in the preparation of America’s public school children for citizenship? And will not the privatization of religion in American life continue apace?
By continuing to strengthen the idea that God and the Scriptures belong in the home and the church, and only on the fringes of public life, the school prayer amendment will reinforce the ongoing efforts to remove even the symbols of religion that remain in the public square. To date, no serious court challenge has been waged against the placing of “In God We Trust” on America’s “money.” Or to remove “under God” from the flag salute. Or to remove the mural of Moses and the Ten Commandments appearing on the wall directly behind the Pennsylvania Supreme Court in the main Capitol Building in Harrisburg.
But, if the Ten Commandments are an unconstitutional establishment of religion, when posted on a public school classroom wall [as the Supreme Court concluded in Stone v. Graham, 449 U.S. 39 (1980)], then the precedent is already in place to justify their removal from the courthouse wall.
What is needed in this battle is a new strategy. A strategy that rests upon the constitutional text and its historic meaning.
Since Everson v. Board of Education, 330 U.S. 1 (1947), the United States Supreme Court has claimed that the meaning of the religion clauses is that which was established in Article I, Section 16 of the 1776 Virginia Constitution, as applied by James Madison and Thomas Jefferson in the battle over state tax support for Christian teachers in Virginia.
Neither Madison nor Jefferson claimed that the No Establishment principle was violated because the proposal to support Christian education failed some kind of religious neutrality test. To the contrary, both resisted state-supported education because matters of”opinion” belonged exclusively to God, outside the jurisdiction of the state. See Titus, “No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion,” 22 Cumb. L. Rev. 505 (1991-92).
The true Madison/Jefferson legacy is not religious neutrality in law and politics, but a legal and political separation of the jurisdiction of the church and of the state. That jurisdictional distinction, in sum, rests upon an assessment of the nature of the duty as determined by the laws of God.
If a duty is, by nature, enforcible by “force or violence” – such as the duty to protect the sanctity of human life – then the state has jurisdiction. It could – indeed, it must – adopt the Biblical definition of murder and, upon conviction, impose the penalty of death, as prescribed by the laws of God. See John Jay’s Letter to John Martin reprinted on pp. 3-6 supra.
If, on the other hand, the duty is, by nature only enforcible by “reason or conviction” – such as education – then the state has no jurisdiction. Any violation of the duty is, as Madison put it in his 1785 Memorial and Remonstrance, “an offense against God, not against man: To God, therefore, not to man, must an account of it be rendered.”