Unalienable Rights, Equality and the Free Exercise of Religion
by Kerry L. Morgan
Part 8 – Governmental Reliance On and Recognition of God
V. Supreme Court, con’t
C. Governmental Reliance on and Recognition of God the Creator
Recall that the examination of article VI revealed that acknowledgment of God was a necessary prerequisite to taking an oath of office with integrity. Only a religious test was prohibited. This distinction–between civil recognition of God and specific religious doctrines–characterizes the third type of case to be examined. Like the principles in article VI, these cases deal with matters related to God and civil government generally, but avoid mixing religion and creeds with civil power. Such cases arise where the recognition of God by the civil government is necessary and proper to the civil or constitutional discharge of its power.
Under article 1, section 8, clause 18, Congress has power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department or officer thereof.” This provision does not give Congress additional subject matter jurisdiction. It merely provides and defines the conditions (both necessary and proper) under which the substantive powers enumerated elsewhere in the Constitution, may be carried into effect. In other words, the clause embraces those legislative means which are necessary and proper to carry out the enumerated powers of the Constitution unless forbidden by the “letter and spirit of the Constitution.”211
In the instant context, Congress may adopt those legislative means which are necessary and proper to carry out an enumerated Constitutional power unless forbidden by the first amendment religion clauses or the flat Constitutional ban on religious tests in article VI. The exact parameters of this power and its limitations are the subject of another Article. Suffice it to say that for present purposes, Congress may pass laws designed to carry out a Constitutionally enumerated power as long as those laws: 1) do not establish a religious test for a public office or trust; 2) do not establish a national religion, national articles of faith or national mode of worship; 3) do not prevent or interfere with religious belief or worship; 4) do not infringe any equal civil right or capacity on account of one’s belief or worship; and 5) do not interfere with the rights of conscience (the reason and conviction used to determine religious belief and mode of worship) in any manner, or on any pretext.212
The general idea is that the Declaration of Independence established controlling precedent. It established the precedent that God is relevant to the establishment of nations such as the United States; that God defined the objects of civil government; that God had laid down the rule of equality and unalienable rights as limits on civil power. To the extent that Congress seeks to adopt legislation based on an enumerated power which acknowledges or furthers these precedents, and a proper Constitutional means empowers it to do so, then such legislation cannot be said to run afoul of the first amendment.
The cases to come before the Supreme Court in the last decade, however, in which the relevance of God’s status as Creator or in which the necessity of his blessing was determined to be necessary and proper to the discharge of a civil power, were not argued on the basis of article 1, section 8, clause 18. They were rater considered as establishment clause cases even though they predictably involved no Congressional statute.
One such example is Marsh v. Chambers.213 In Marsh the Court was faced with a Nebraska legislative practice of beginning each of its sessions with a prayer offered by a chaplain paid by the state with the legislature’s approval. The Supreme Court held that the chaplaincy practice did not violate the establishment clause. The Court relied upon the contemporaneous history of the first Congress adopting the establishment clause and also providing for a Congressional chaplain. The Court correctly acknowledged that to “invoke Divine guidance on a public body entrusted with making the laws is not, in these circumstances an ‘establishment’ of religion.”214 This statement is correct because the written legal consensus embodied in the Declaration recognizes that God guides civil governments as much as individuals. Thus, if the legislature seeks to importune God’s direction in the day to day affairs of the nation, it recognizes that no nation can long exist which does not acknowledge that God governs in its affairs.
Had the Congressional chaplaincy provision been at issue it also would have been upheld under article 1, section 8, clause 18 as necessary and proper to carry out any Congressional lawmaking power defined in article 1, section 8. The same factual rationale as discussed in Marsh, would apply, “to invoke Divine guidance on a public body entrusted with making the laws is” an acknowledgment “that we are a religious people whose institutions presuppose a Supreme Being.”215 Or more precisely, “to invoke Divine guidance on a public body entrusted with making the laws is” an acknowledgment that we are a people whose civil institutions are established with an understanding of accountability to God the Creator, but not civilly accountable to religion or religious institutions.
A Congressional chaplain statute can also be sustained under article 1, section 5, clause 2 pertaining to Congressional rules of proceeding. Likewise military chaplains are especially necessary and proper vis-a-vis article I, section 8, clause 12 (raise and support an army), clause 13, (provide for and maintain a Navy), and clause 16 (organize, arm and discipline the Militia) in light of the dangers inherent in military life and conduct. The free exercise clause, however, is not an appropriate vehicle for a civil declaration that God is the Creator or the implication which may flow therefrom precisely because the clause deals with the rights of the individual. It would truly be awkward to argue that an amendment, which by definition is a limitation on the power of Congress, should now become a basis for the exercise of legislative power.
In addition to situations where the discharge of a Constitutional power requires the recognition of God, there are also occasions in which the government may observe events associated with God. Among these observances are public holy days. The Constitution itself recognizes Sunday as an official day for certain governmental purposes and therefore creates a powerful precedent for civil observation of one day in the week (in this case Sunday) as a holy day established and set aside by God the Creator.216
Government celebration of officially recognized holy days or holidays was at issue in Lynch v. Donnelly217 and ACLU Greater Pittsburgh Chapter v. County of Allegheny.218 Both cases involved state observation of the Christmas holy day and holiday season by inclusion of a nativity scene in their Christmas display. Lynch involved a government owned Nativity scene displayed on private property. ACLU Greater Pittsburgh Chapter involved a privately owned Christmas creche displayed on public property. The display in Lynch was sustained because it was one of many Christmas displays. The creche in ACLU Greater Pittsburgh Chapter was held unconstitutional because it was not one of many Christmas displays. The holding in these cases indicate that the Court is merely substituting its judgment for that of local officials as to what constitutes “too much” accommodation or endorsement of religion. There does not appear to be any bright line or any legal standard in the Court’s holdings except perhaps the “three plastic reindeer rule” which attorneys have coined to characterize the content based absurdity of the Court’s “legal test.”
In part, the holdings are a product of the Court’s construction of the establishment clause out of context. The clause prohibits enactment of laws respecting an establishment of religion. It does not prohibit government from observation of the actual meaning of officially recognized holidays. As previously mentioned, the Constitution itself recognizes a Sunday exception for certain legislative business. Article I, section 7, clause 2 excepts Sunday from the ten day rule applicable to the President when a bill is returned to the legislature. The laws of nature confirm the rule that man is to work six days and rest on the seventh. The Constitution writes that rule into the operation of the federal government and properly limits its effect to the federal government as a self-imposed restriction. The “Sunday exception” provision as well as the article VI oath requirement illustrate that the framers never intended to write recognition of God or of special days out of the Constitution.219
The nativity scene observances at issue in Lynch and ACLU Greater Pittsburgh Chapter do not impose a rule of action prescribing conduct or forbearance which must be obeyed. Disobedience to the “observance” subjects no one to legal sanctions. No conduct is required. No action is prohibited. No penalties are present. Both cases involve a situation where local governments have decided to officially recognize a holiday–Christmas. This decision is no different in kind than the Constitution’s article VII recognition that the Constitution was created in the “year of our Lord.” Both the official recognition of Christmas and the Constitution’s recognition of its date of creation simply mark time. They do not establish religion.
Local governments have elected to celebrate this holiday by calling attention to its purpose and meaning, but they have passed no law requiring anyone to also celebrate the holiday or observe its meaning. They will punish no one for failure to observe the holiday. Were the text construed according to its plain meaning and the prerogative of local and state governments to select the holidays they wish to celebrate, nativity scene cases and cases involving other public observation of religion would be more easily resolved.220
This Article has previously observed that legislative bodies (and the Court where Constitutionally authorized) have consistently failed to recognize the whole notion of unalienable rights in the context of public school education. In particular, the unalienable right of parents to direct the education of their own children, and the unalienable right of intellectual freedom–the right of an emancipated student to be free from mandatory exposure to a government approved curriculum or idea–have been neglected.
It has also been noted that the Court’s record is erratic where faced with a legislative pronouncement that involves governmental observation of religious holidays or requires governmental invocation of Divine guidance on a public body. It was observed that such pronouncements and invocations are both appropriate and Constitutional acknowledgments that we are a created people whose civil institutions are established with an understanding of accountability to God the Creator, but not with accountability to religion or religious institutions. Moreover, for purposes of the establishment clause, governmental recognition of God is not unconstitutional compulsion prohibited by the establishment clause.
The case of Lee v. Weisman,221 juxtaposes the notion of unalienable parental rights alongside appropriate and Constitutional acknowledgments that we are a created people whose civil institutions are established with an understanding of accountability to God the Creator.
The facts are straightforward. The principal of a public school in Providence, Rhode Island, invited a clergyman to give an invocation at the school’s graduation ceremony. The ceremony was voluntary and attendance was not required by the state. The principal invited a Rabbi and gave him a pamphlet containing guidelines for the composition of public prayers at civic ceremonies. The principal advised, but did not require the Rabbi’s prayers be nonsectarian. After the ceremony and prayer, Weisman, the father of one of the school’s students, sought a permanent injunction barring the principal from inviting clergy to deliver invocations and benedictions at future graduations. Relying on the incorporation doctrine, the District Court enjoined the school from continuing this practice on the predictable grounds that it violated the establishment clause of the first amendment. The Court of Appeals affirmed. The Supreme Court narrowly affirmed.222
In arriving at its conclusion striking down the practice of graduation prayers, the majority staked their legal claim on their view that the prayer exercise was fraught with coercion. The majority observed that “a government may not coerce anyone to support or participate in religion or its exercise . . . .”223 The Court found that the principal directed and controlled the prayer’s content. It warned that religion in the hands of government “might begin as a tolerant expression of religious views, [but] may end in a policy to indoctrinate and coerce.” Searching for additional grounds to support its coercion rationale, the Court observed that the school district’s supervision and control of a high school graduation ceremony “places subtle and indirect public and peer pressure on attending students” and that “the State may no more use social pressure to enforce orthodoxy than it may use direct means.”
In a concurring opinion, three justices observed that the invocation of God’s blessings delivered at a public school “is a solemn avowal of divine faith and supplication for the blessings of the Almighty.”224 This solemn avowal and supplication, when combined with the element of coercion was enough “religion” for the Court to conclude that a violation of the establishment clause was present.
Another concurring opinion equated the universal with the sectarian quite intentionally and clearly:
the Establishment Clause forbids state-sponsored prayers in public school settings no matter how nondenominational the prayers may be. In barring the State from sponsoring generically Theistic prayers where it could not sponsor sectarian ones, we hold true to a line of precedent from which there is no adequate historical case to depart.225
In order to reach its holding, the Court interpreted the facts so as to support its finding of coercion. It also historically and Constitutionally wrong conclusion that a solemn avowal of divine faith and supplication of God Almighty was simply another sectarian tenet of the Judeo-Christian religion. The Court concluded that inherent differences between the public school system and a session of a state legislature could not be adequately distinguished to bring the case within the Court’s prayer ruling in Marsh v. Chambers.226
The dissent emphasized the same facts but in the light of non-coercion and historical practice. It observed that “the history and tradition of our Nation are replete with public ceremonies featuring prayers of thanksgiving and petition.”227 The dissent recounted numerous examples from our Nation’s origin, where:
prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, “appealed to the Supreme Judge of the world for the rectitude of our intentions” and avowed “a firm reliance on the protection of divine Providence.” In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President.228
Prayers of former Presidents such as Jefferson and Madison as well as President George Bush Sr. were in accord. Public thanksgiving and prayers which acknowledged “the many and signal favors of Almighty God” were cited as long-established practices of prayer as were prayers to open Congressional sessions and the Court’s own sessions. To these general traditions of prayer at public ceremonies, the dissent added “a more specific tradition of invocations and benedictions at public-school graduation exercises” which began in the public-high-school setting as early as July 1868.
The dissent criticized the Court for separating graduation invocations and benedictions from these other instances of public invocations and prayers. The dissent argued that the public school graduation invocations and benedictions involved no coercion and that the Court’s coercion thesis was contrary to both fact and law. It was contrary to fact because no attendance was required and contrary to law because no threat of penalty or actual penalty was applicable to those who failed to attend graduation.229 The dissent concluded that the graduation prayers at issue should be sustained on the basis that they conform to “our long-accepted constitutional traditions.”
If the arguments are condensed into plain English, the majority believes that to invoke God’s blessing in a public school graduation ceremony is coercive and religious, both Constitutionally forbidden. The dissent believes that to invoke God’s blessing in a public school graduation ceremony is not coercive and though it is religious, such practices have long been among our accepted constitutional traditions, and are therefore not constitutionally forbidden.
Now, how do these views square with a regard for unalienable rights, equality and the free exercise of religion? Consider the majority’s view first. The immediate context is public education. Does the reader understand that public education is by definition, a coercive institution? The majority is very long on the rhetoric of the dangers of indirect and “peer pressure” coercion. It goes to inordinate lengths to demonstrate how coercive the entire public school context can be when religion is present.
While the Court correctly points out the adverse effects of religion when engendered through a coercive system of public education, it unhappily remains enthusiastically blind to the adverse effect of secularism when engendered through that very same coercive system of public education. The Court failed to recognize or appreciate that public education by definition, whether its focus is on religious or pagan and secular ideas, is undertaken and accomplished through the pitchfork of state coercion. If the majority were attentive to this condition, it would have considered the unalienable right of parents to direct the education of their children and the unalienable right of graduating seniors to be free from government enforced secular orthodoxy which lies at the very heart of the public school curriculum. The unalienable right of a student to intellectual freedom precludes state coerced exposure to content whether it be religious or otherwise.
To the extent that a graduation ceremony is the concluding expression of twelve years of state coercion, the Court vindicated the unalienable right of Deborah Weisman to be free from state enforced coercion in matters of religion. (The Court did not call it an unalienable right, but rather “a dissenter’s rights of religious freedom.”) It left untouched, however, the power of the state to trample upon the unalienable right of parents to direct the education of their children for their preceding twelve or so years of public education. For shame.
In other words, the Court condoned twelve years of state enforced secularism but could not tolerate thirty seconds of peer pressure “enforced” religious prayers. The Court was wrong on the first count to condone twelve years of state enforced secularism. It was right on the second count, however, not to tolerate thirty seconds of state enforced religious prayers to the extent that the fiction of state coercion is accepted.230 Even given an incorporated first amendment analysis the Court should have at least asserted that the principle of intellectual freedom–that “Almighty God made the mind free, and manifested His will that free it should remain”–is relevant to establishment clause jurisprudence.231
But the incorporation doctrine aside, the Court should have considered the unalienable right of a parent to direct the education of his or her own child in light of the Rhode Island constitution article 1, section 3 pertaining to intellectual freedom.232 Had this right been factored into the equation in a non-coercion setting, the objection of Deborah Weisman’s father to the prayer would have not been sustained. He, like all other parents had an unalienable right to direct the education of his daughter and that if he desired that she should remain unexposed to appeals to God, then it was his right not to require her attendance. By the same measure, other parents present who wished their child’s mind to be exposed to appeals to God, they too enjoy that right in full and equal measure and were free to attend as they liked. Both were free to do what they liked.
To the extent that the ceremony was coercive, the students were a captive audience. They were forced to sit and listen to the typical graduation speeches of secular self-exaltation. To this extent those who had reached the age of majority were denied their unalienable right to intellectual freedom. The parents of those who were yet minors, were deprived of their unalienable right to educate their own children.
With respect to the dissent’s view and how it squares with a regard for unalienable rights, equality and the free exercise of religion, little more can be added. On the fundamental issues of unalienable rights and equality, the dissent did not distinguish itself from the majority. The dissent would simply draw the Constitutional line on the side of those who want to entertain the prayer.
Happily, however, the dissent properly invoked the right set of principles, though it inadequately attributed them to history and quickly misapplied them to the context of public education. The dissent correctly recognized that governmental reliance on and recognition of God as the Creator is both necessary and proper. Moreover, it understood that governmental recognition of God is not unconstitutional compulsion. So far so good. Rather than attributing these principles, however, to the “laws of nature and of nature’s God” or its Constitutional expression in article VI or any other source discussed in the first four sections of this Article, the dissent turns to piling up history and historical examples.
But unlike the dissenters, those who have made a profession of reading the disciples of Blackstone rather than Holmes, can discern that the examples of history standing alone, without an anchor in the law of nature and of its Creator God, cannot tell us whether that history is constitutional or otherwise.
Neglecting our legal heritage in exchange for history, the dissent further stumbles by attempting to place public high school graduation ceremonies on par with those appeals to God that mark and sustain our country. Their clerks no doubt searched high and low for the earliest public high school graduation ceremony accompanied with prayer, and yet could only go back to 1868. The dissent’s invocation of graduation ceremonies as historically imbedded in our Constitutional traditions dating from July 1868 wears thin. It is rendered such because it assumes quite mistakenly that public education contravenes no unalienable right. If the subject were examined, it would be recognized that public education as we know it today with all of its coercive dimensions, did not even exist at this Nation’s founding. In striving for a good object, the dissent bit off an awfully grand historical assumption which is the major weakness in its analysis and legal rationale.
Credit must be given to the dissent, however, for recognition of the correct legal principle. Its defense of public recognition of the Creator is worthy, especially when compared to the popular legal idolatry of “[n]early half a century of review and refinement of Establishment Clause jurisprudence” relied upon by the majority and self-immortalized by the concurring opinions. But we must have more than the correct legal principle, we must also have the correct foundation and a discerning application of that principle.
This is the legal impasse of Lee v. Weisman and every other state education/religion case that dominates first amendment religion litigation. The Court will not move forward with rejection of the incorporation doctrine, recognition of the unalienable right of every student of age to intellectual freedom or of every minor student’s parents to the unalienable right to educate their own children, provided that a state constitution or legislature has identified those rights.
This discussion provides some guideposts for non-activist judicial inquiry in future cases. It also encourages religious litigants to closely scrutinize state constitutional provisions for references to unalienable rights as well as admonishes religious litigants to stop trying to redeem public education with grand legislative strategies and judicial arguments that are wrong in principle. Finally, the discussion should encourage religious organizations and people of good will to focus time, energy and resources into obtaining the security of unalienable rights in the context of education for all people irrespective of their religious beliefs or lack thereof, through state constitutional and legislative efforts to that effect.
The Court cannot break the Lee v. Weisman impasse on principle or continue to rely on Employment Division v. Smith, unless it revisits the unalienable rights and equality principles of the Declaration of Independence. It really has no other option but to revisit these principles. Its current jurisprudence is not the poised prototype of a half-century “of review and refinement of Establishment Clause jurisprudence” as the Court make-believes. “Review and refinement” does not well describe a jurisprudence of “rank usurpation.”
It should be clear by now, that to the extent equality is made the sole guide, the religious petitioner will be equally free or slave to the same degree as other citizens. If equally free, then not by virtue of any unalienable right to the extent such rights are wrongfully ignored, but simply as a matter of legislative indulgence. And if equally slave, then that status is also as a matter of legislative forbearance.
Equality without unalienable rights is tyranny for all. Unalienable rights without equality is slavery for some or most. But where equality and unalienable rights are regarded, then the result is liberty for all.
The American legal system is based on the laws of nature and of nature’s God. Its principles are expressed in the Declaration of Independence and are to a varying degree, grafted into the Constitution and the Bill of Rights and the constitutions of the several states. The two foremost rules that animate the American legal system pertain to equality and unalienable rights. Americans have the expectation that the governments we create by our constitutions (both federal and state), will preserve and not quash the free exercise of our unalienable God-given rights. We also expect that government will preserve the free exercise of our unalienable God-given rights on an equal basis showing no favoritism or partiality before the law.
Historically, the American legal system recognized that civil government itself stood accountable to God as the Creator and Preserver of nations. Its officials qua officials recognized their obligation to acknowledge God’s attribute as Creator and civil government’s dependence on and conformity to his laws as embodied in the nation’s legal documents which in turn were established according to the collective understanding and assent of the governed. Such civil recognition of Almighty God pertained to the universal laws of nature and was not founded upon some peculiar sectarian religious proposition. Civil recognition of God is not the focus of the no-establishment of religion principle, for to equate the two mistakenly and tragically results in purging of the legal basis of the American regime.
The American legal system recognizes that the free exercise of religion is one of many unalienable rights that governments are created to protect. The founding documents that created our legal system were based on the understanding that freedom of religion was rooted in the recognition that Almighty God created the mind free; that religion involved duties to God the Creator, that these duties were not inconsistent with rights toward other men, and that the discharge of such duties must be voluntary. Our laws also recognized that no man or government could ever lawfully coerce another to perform any religious obligation.
This Article has examined the free exercise of religion as an unalienable right, as a right defined in the context of the laws of nature and its Creator. The unalienable right to the free exercise of religion has no meaning apart from that context. The Constitution has acknowledged and embodied this understanding and approach to religion. Article VI requires an oath and prohibits a religious test. An oath by definition requires that God be invoked. Invoking God serves as a reasonable mechanism for ensuring the oath is taken and performed with integrity. The religious liberty of the deponent is preserved by that article through prohibition of a religious test. While the oath recognizes that the faithful performance of public officials are more likely than not to be preserved by invocation of God, no religion is established because religion involves the discharge of a man’s duties to God and the oath compels no such individual duties to God, but rather, is confined to duties to the people. The invocation of God is a civil mechanism designed to secure the performance of the office, better than any such pledge could secure performance. Perhaps the corruption of public officials would not be so common if they were required to take an oath that requires them to understand they stand be fore God when taking it.
The first amendment to the Constitution also followed the pattern of permitting and encouraging civil recognition of God, while precluding civil coercion in the discharge of religious duties to God. The first amendment ingrafted the Declaration’s recognition that God gives unalienable rights to men and women. The amendment prohibits a Congressionally established national religion, articles of faith or mode of worship. Congress may not interfere by law with religious belief or worship. Congress may not infringe by law any of the equal civil capacities of its citizens on account of their belief or mode of worship. Congress may not interfere by law with the intellectual formulation of belief, religious or otherwise. These prohibitions are legal and pertain to the use of coercion accompanied by legal penalty. Social pressure, psychological tension or other non-legal means are not contemplated within the prohibition of the amendment.
Broadly speaking, these limitations on Congressional power were condensed into the present day language of the first amendment’s free exercise and establishment clauses. The amendment prohibits federal legislation that interferes with the unalienable right to the free exercise of religion. The first amendment was not intended or designed to write God, the laws of nature’s God, or the source and nature of equality or unalienable rights out of the Constitution (either state or federal), or laws made in pursuance thereof.
An examination of notable religion cases, however, indicates broad misconstruction of the history and meaning of unalienable rights, the Constitution, Bill of Rights and the free exercise of religion. The most notable departures from this history and meaning are found in the Court’s earlier holdings in Palko and Cantwell. These decisions gutted the specific relevance of state constitutional bills of rights. Lemon soon followed.
While several of the Court’s conclusions in its religion cases were consistent with the transcendent historical ideas about religion and equality, the same cannot be said with respect to its treatment of unalienable rights in general. Unalienable rights were rarely discussed. The Court is oblivious to the concept of a right which cannot be balanced or subjected to a rational or compelling governmental interest. Conflicts between unalienable rights and federal education laws, wage and hour laws, charitable solicitation laws, and social security laws should have defined the actual case or controversy, but were never considered.
It is true that the Court cannot, with any legal integrity, fabricate unalienable rights from whole cloth. But where legislative and state constitutional provisions exist that recognize unalienable rights, the Court should have at least factored such provisions into the legal equation. Attorneys, however, do not plead and judges or Justices do not inquire into the basic notion of an unalienable right. Thus, unhappily those notions do not find their way into court. Consequently, attorneys plead and courts evaluate religion cases in the nebulous twilight zone of parties seeking to block religious practices (such as the prayers in Jaffree and Weisman) from interfering with their rights or preferences. This situation leaves the inarticulate and indirectly reasoned equality related decisions, Witters, Lamb’s Chapel, Zobrest, and the Smith case as the only semi-bright light on the horizon of religious liberty litigation in the past twenty years. Their beam, however, is far from blazing.
The Smith decision has opened the door to equal application of generally applicable laws. Religious individuals and organizations will no longer be able to protect special legislative preferences and entitlement. They will begin to feel the full weight of the civil government’s regulatory and criminal law. Will religious litigants now find themselves the beneficiaries of governmental laws and regulations in equal proportion to the non-exempt population? Not at all. No one should be fooled; religious individual and organizations will now feel in equal measure with their neighbor, the painful extent to which the civil government has defaulted on its first and foremost promissory note–to preserve and not quash, the free exercise of each and every unalienable God-given right on an equal basis irrespective of belief.
It is not the equal enjoyment of unalienable rights that we now face, but their equal abridgement. Will religious leaders, their lobbying organizations and their attorneys will realize that loving their neighbor as themselves, means they must defend the unalienable rights of all? Or will the salt of the earth continue to be trampled under judicial foot because it has lost its jurisprudential savor?
The self-serving litigating and lobbying philosophy of securing preferential treatment for religious clients has brought first amendment jurisprudence to a anesthetized impasse. We must eschew special exemptions from generally applicable laws and learn to examine those laws in the bright light of the laws of nature and of nature’s God, the unalienable rights God has given to every human being, and the expression of those rights in state and federal constitutional and legislative provisions.
General laws which have an incidental impact on religious practice or religiously motivated practices, should not be opposed on grounds that religion is entitled to a special exclusion or benefit. Preferential treatment is contrary to equality. Otherwise, a first amendment claim is nothing more than pleading insulation from the equality principle of the laws of God on the basis of one’s devotion to Him. This is absurd.
At the same time, the full defense of religious practices subjected to direct regulatory control or impairment are to be vigorously defended, but not with the dead arguments of preferential treatment, compelling state interest or another Religious Freedom Restoration Act. Such laws or policies should be resisted on grounds that they contravene an unalienable right–the free exercise of religion. The unalienable right to the free exercise of religion is entitled to absolute protection by virtue of its Grantor, not by virtue of the subjective belief or sincerity of its adherent.
The challenge for religious individuals and institutions is to first lay the constitutional and legislative foundation for the unalienable rights of parents to direct the education of their own children. Other unalienable rights involving property, contract and association will follow. Unalienable rights must be embraced not simply for the benefit of a religious individual or organization, but because the security of unalienable rights is the only security of anyone’s liberty, religious or otherwise. If indeed, it is true that all men and women are created equal, that they are endowed by their Creator with certain unalienable rights, that governments are instituted in order to secure those rights, then no more transcendent a mandate lies ahead than to define and secure those rights for all. Legislative hearings might help define this mandate.
The struggle is between two visions of law, government and rights. The view adopted by the framers of the Declaration, Constitution and Bill of Rights, or the modern primal view. Depending on which view is adopted, unalienable rights can either be regarded as “endowed by [the] Creator” or simply a primal “power, privilege, faculty, or demand, inherent in one person.” They can either be viewed as conforming to the “laws of Nature’s God” or “grounded in personality.”
In consequence thereof, religious liberty can either be understood as unalienable or simply something government should tolerate for the time being. Religion can either be judged best “left to the conviction and conscience of every man,” or where a compelling or rational governmental interest exists, every man can be required to “profess or renounce this or that religious opinion.” The free exercise of religion can be considered either as a duty owed to the Creator, a basis for unequal treatment, or an excuse for wrongful conduct. But until trained advocates, lawyers and people of good will recognize these differences, the legislative, executive and judicial branches will continue to apply the principles of unequal treatment and conditional rights that characterize a people who perish because they have neither vision nor knowledge.
The struggle is also over whether or not we will honor the Constitution and its design of a government with three equal, independent, coordinate and limited branches with the role of the judicial branch limited to deciding “cases and controversies” in accordance with laws made by elected representatives. Federalist No. 78 vision stands firm on the one hand–that the Judiciary has no influence over either the sword or the purse; no direction either of the strength or wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.
Federalist No. 81 is also part of that vision–that we may expect Congress to punish judiciary encroachments on the legislative authority by impeachment and removal of the encroaching judges. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with [the power of impeachment and removal], while this body was possessed of the means of punishing their presumption, by degrading them from their stations.
Against this vision is a horde of self-dealing judicial opinions, Peters, Sterling, Cooper, and City of Boerne among them which declare that “the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution;” that absent such a supremacy, “the Nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals” as if the president had to obtain the Court’s permission in order to “execute the Office of the president” or “preserve, protect and defend the Constitution.”233 They declare that “every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution” and conclude it means every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 to support this opinions of the Supreme Court. A damnable lie.
Our framers and founders depended on the integrity of judges to restrain themselves from defying their constitutional limitations. They also trusted the integrity of Presidents to refuse to enforce fallacious Supreme Court decisions. Ultimately they built into the Constitution mechanisms regarding impeachment and amendment which in turn depended on the courage and integrity of Congress to remove lawless judges. The Presidents and Congresses, however, have utterly failed to show either.
State constitutional provisions referring to unalienable, inalienable, inherent or natural rights include:
Ala. Const. Art. I, § 1 (1991)(That all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness.);
Alaska Const. Art. 1, § 1 (This constitution is dedicated to the principles that all persons have a natural right to life, liberty, the pursuit of happiness, and the enjoyment of the rewards of their own industry: that all persons are equal and entitled to equal rights, opportunities, and protection under the law; and that all persons have corresponding obligations to the people and to the state.);
Ark. Const. Art. 2, § 2 (1992)(All men are created equally free and independent, and have certain inherent and inalienable rights, amongst which are those of enjoying and defending life and liberty; of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness. To secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.);
Cal. Const. Art. I § 1 (Deering 1992)(All men are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety, happiness and privacy.);
Colo. Const. Art. II, § 3 (1991)(All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.);
Conn. Const. Art. 1 § 2 ([The people] have at all times an undeniable and indefeasible right to alter their form of government in such manner as they think expedient.);
Fla. Const. Art. I, § 2 (1991)(All natural persons are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion or physical handicap.);
Haw. Rev. Stat. Const. Art. I, § 2 (1991)(All persons are free by nature and are equal in their inherent and inalienable rights. Among these rights are the enjoyment of life, liberty and the pursuit of happiness, and the acquiring and possessing of property. These rights cannot endure unless the people recognize their corresponding obligations and responsibilities.);
Idaho Const. Art. I, § 1 (1992)(All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.);
Ill. Const. Art. I, § 1 (1991)(All men are by nature free and independent and have certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.);
Ind. Const. Art. 1 § 1 (We declare, That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness . . . .);
Iowa Const. Art. I § 1 (1991)(All men are, by nature, free and equal, and have certain inalienable rights — among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.);
Kan. Const. Art. 1, § 1 (All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.);
Ky. Const. § 1 (Baldwin 1992)(All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned . . . Fifth: The right of acquiring and protecting property.);
La. Const. Art. 1, § 1 (The rights enumerated in this Article are inalienable by the state and shall be preserved inviolate by the state.);
Me. Rev. Stat. Const. Art. 1, § 1 (1991)(All people are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness.);
Mass. Const. Ann. Pt. 1, Art. 1 § 2 (1990)(All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin.);
Miss. Const. Art. 3, § 6 (The people of this state have the inherent, sole, and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they deem it necessary to their safety and happiness.);
Mont. Const. Art. 2, § 3 (1992)(All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.);
Neb. Const. Art. I, § 1 (1991)(All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.);
Nev. Const. Art. 1, § 1 (1991)(All men are by Nature free and equal and have certain inalienable rights among which are those of enjoying and defending life and liberty; Acquiring, Possessing and Protecting property and pursuing and obtaining safety and happiness.);
N.H. Const. Art. 2 (All men have certain natural, inherent and essential rights–among which are, the enjoying and defending life and liberty, acquiring, possessing and protecting, property, and, in a word, of seeking and obtaining happiness and safety.)(See also article 5 pertaining to religion.);
N.J. Const. Art. 1, par. 1 (1991)(All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining
safety and happiness.);
N.M. Const. Art. II, § 4 (1992)(All persons are born equally free, and have certain natural, inherent and inalienable rights, among which are the rights of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of seeking and obtaining safety and happiness.);
N.C. Const. Art. 1, § 1 (We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyment of fruits of their own labor, and the pursuit of happiness.);
N.D. Const. Art. 1, § 1 (1991)(All individuals are by nature equally free and independent and have certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; pursuing and obtaining safety and happiness; and to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed.);
Ohio Const. I § 1 (Baldwin 1992)(All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.)[NOTES: COMMENTARY Editors Comment: 1990 This section and succeeding § 2 are based on part of Article VIII, §1, 1802 Ohio Constitution, which itself paraphrased the Declaration of Independence. It restates principles accepted before the Revolution: that man has certain inalienable rights under natural law; that the purpose of government is to secure and protect those rights; and that all governmental powers depend on the people’s consent. See, e.g., Resolutions of October 14, 1774, I Journals of the Continental Congress 63-73 (Worthington C. Ford ed, 1904); Blackstone’s Commentaries 41-53 (J. W. Ehrlich ed, Nourse Publishing Co 1959); Thomas Rutherforth, II Institutes of Natural Law, Ch III (Cambridge, England, 1754-56)];
Okla. Const. Art. 2, § 2 (All persons have the inherent right to life, liberty, the pursuit of happiness, and the enjoyment of the gains of their own industry.); Or. Const. Art. 1, § 2 (All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their consciences.);
Pa. Const. Art. 1, § 1 (All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.)(See also section 3 pertaining to the natural and indefeasible right to worship Almighty God.);
S.D. Const. Art. VI, § 1 (All men are born equally free and independent, and have certain inherent rights, among which are those of enjoying and defending life and liberty, of acquiring and protecting property and the pursuit of happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.);
Tenn. Const. Art. 1, § 1 ([The people] have at all times, an unalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper.)(See also section 3 pertaining to the natural and indefeasible right to worship Almighty God.);
Tex. Const. Art. 1, § 2 ([The people] have at all times, an inalienable right to alter, reform or abolish their government in such manner as they may think expedient [subject only to the Republican guarantee.]);
Utah Const. Art. I, § 1 (1992)(All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.);
Vt. Stat. Ann. Const. Art. 1 (1991)(That all men are born equally free and independent, and have certain natural, inherent, and unalienable rights, amongst which are the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety; therefore no person born in this country, or brought from over sea[s], ought to be holden by law, to serve any person as a servant, slave or apprentice, after he arrives to the age of twenty-one years, unless he is bound by his own consent, after he arrives to such age, or bound by law for the payment of debts, damages, fines, costs, or the like.);
Va. Const. Art. I, § 1 (1992)(That all men are by nature free and independent and have certain inherent rights, of which, when they enter a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.);
W. Va. Const. Art. III, § 1 (All men are, by nature, equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely: The enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.)(See also section 3 pertaining to the indubitable, inalienable and indefeasible right to reform, alter or abolish [their government.]);
Wyo. Const. Art. 1, § 1 ([The people] have at all times an inalienable and indefeasible right to alter, reform or abolish the government in such manner as they may think proper.)(See also section 2 pertaining to the equal and inherent right to life, liberty and the pursuit of happiness.)
* Copyright © 2004, 2006 Kerry L. Morgan. Used with permission.
211. McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 405, 407, 411, 421 (1819). Chief Justice John Marshall elucidated the proper scope of this provision in McCulloch. Since article VI is part of the Constitution, Congress has the power to “make all laws which shall be necessary and proper for carrying into execution” the terms of that provision.
212. A fine example of the proper exercise of this power which the framers wanted to guarantee by placing it in the Constitution, is the oath of office in article VI. Had the framers not constitutionalized the oath of office as a means unto a Constitutional end (ensuring that the oath is taken with integrity by recognition of God), then Congress most certainly would have been able to adopt the means statutorily. Likewise the framers provided for limitations on the exercise of the Congressional power by elevating to a Constitutional level, a prohibition on the institution of a religious test as a qualification for public office under the Constitution.
213. 463 U.S. 783 (1983).
214. Id. at 792. Had there been no incorporation of the first amendment, this case would have turned on Nebraska’s Constitution. For instance, the state constitution declares that:
All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof. To secure these rights, and the protection of property, governments are instituted among people, deriving their just powers from the consent of the governed.
Neb. Const., Art. I, § 1 (1991). Nebraska certainly could acknowledge that invocation of Divine guidance upon and by those public officials entrusted and charged with securing the unalienable rights of the people is a necessary, proper and reasonable means of effecting that end unto which governments are instituted.
215. Id. quoting Zorach v. Clauson, 343 U.S. 306, 313 (1952).
216. See U.S. Const., art. 1, § 7. This recognition, however, does not permit civil government to forcibly extend the rule to the private sector.
217. 465 U.S. 668 (1984).
218. 492 U.S. 573 (1989).
219. Article VII’s reference to “the year of Our Lord” is also an interesting provision. The reference is a means of recognizing the year of the reign of the Sovereign during which the Constitution was adopted. Nativity scene cases should note that civil government’s recognition of the birth of Jesus Christ as a national holiday can be consistent with the Constitution’s recognition that the creation of the United States is dated from his birth date as well. This argument differs from requiring an Oath in the name of Jesus Christ. See supra note 33.
220. Article VII states that the Constitution was “done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and eighty seven and of the Independence of the United States of America the Twelfth.” Historically the phrase “In the year of” was used to identify the political sovereign of a nation as well as to date the laws of that sovereign’s reign. Of course, the English Parliament employed the phrase to recognize a given King or Queen as sovereign since English Statutes were dated from the year his or her reign began. The framers followed this pattern but with a new twist. They referred to the one thousand seven hundred and eighty seventh year of the reign of “our Lord” and then dated the life of the republic in terms of the elapsed years since its independence or birth–“and of the Independence of the United States of America the Twelfth.”
The reference to “the year of our Lord” is still used by the federal government in a variety of legal contexts including significant Presidential orders and proclamations. It was used by Congress in many of the statutes admitting states into the Union. To maintain, as the Constitution does, that God, rather than the President, Congress or the Courts, is the political sovereign, is to maintain that we are to be governed by God’s laws to the extent its principles are reflected in the Declaration and to the extent that the Constitution articulates and conforms to those principles. Thus, the understanding that the United States is a nation of laws and not of men assumes real significance.
221. 505 U.S. 577 (1992).
222. The majority consisted of Justice Kennedy, who delivered the opinion of the Court, in which Justices’ Blackmun, Stevens, O’Connor, and Souter joined. Blackmun and Souter also filed concurring opinions, in which Stevens and O’Connor joined. Justice Scalia filed a dissenting opinion, in which Chief Justice Rehnquist and Justices’ White and Thomas joined.
223. 505 U.S. at 587, citing Lynch v. Donnelly, 465 U.S. 668, at 678. The Rabbi offered the following invocation:
God of the Free, Hope of the Brave: For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank You. May these young men and women grow up to enrich it. For the liberty of America, we thank You. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank You. May those we honor this morning always turn to it in trust. For the destiny of America we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. Amen.
The benediction offered was as follows:
O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement. Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them. The graduates now need strength and guidance for the future, help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: To do justly, to love mercy, to walk humbly. We give thanks to You, Lord, for keeping us alive, sustaining us and allowing us to reach this special, happy occasion. Amen.
224. 505 U.S. at 603, quoting Engel v. Vitale, 370 U.S. 421, 424 (1962). Justice Blackmun, with whom Justice Stevens and Justice O’Connor join, concurring.
225. 505 U.S. at 610. Justice Souter, with whom Justice Stevens and Justice O’Connor join, concurring.
226. 463 U.S. 783 (1983).
227. 505 U.S. at 633, (Scalia, J., dissenting) citing Lynch v. Donnelly, 465 U.S. at 674-678, Marsh v. Chambers, 463 U.S. at 786-788, Wallace v. Jaffree, 472 U.S. at 100-103 (Rehnquist, J., dissenting), Engel v. Vitale, 370 U.S. 421, 446-450, and n. 3 (1962) (Stewart, J., dissenting).
228. 505 U.S. at 633, (Scalia, J., dissenting).
229. With respect to the Court’s invocation of the “peer-pressure = coercion” argument (505 U.S. at 593) based on the writings of psychologists’ such as Sigmund Freud, (505 U.S. at 593-94,642 & fn.10, Blackmun, J., concurring) Justice Scalia noted that: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty–a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud.” (505 U.S. at 642, Scalia, J., dissenting).
230. The Jaffree case is similar. The unalienable right of parents to define the ideas to which their child shall be exposed was trampled by the state when it declared all children shall be forcibly exposed to a minute of silence. The Court’s response was equally brash. It said nothing of six hours (the rest of the school day) of forcible exposure to pre-approved and state sanctioned secular ideas. This was found perfectly acceptable.
231. Thomas Jefferson identified the legal basis for intellectual freedom when he observed that “Almighty God hath created the mind free” and that “all attempts to influence it [the mind] by temporal punishments, or bur[d]ens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion . . . .” R. Cord, supra note 1 at 249. The Commonwealth of Virginia adopted this language as the basis of its state disestablishment law.
Among the majority, however, only Justice Souter’s concurring opinion demonstrates a willingness (by implication) to at least thoughtfully examine the legal basis for intellectual freedom as an historical principle.
232. The Rhode Island Constitution substantially mirrors the Virginia statute for religious freedom. It declares that:
Whereas Almighty God hath created the mind free; and all attempts to influence by temporal punishments or burdens, or by civil incapacitations, tend to beget habits or hypocrisy and meanness; and whereas a principal object of our venerable ancestors, in their migration to this country and their settlement of this state, was, as they expressed it, to hold forth a lively experiment that a flourishing civil state may stand and be best maintained with liberty in religious concernments; we, therefore, declare that no person shall be compelled to frequent or support any religious worship, place, or ministry whatever, except in fulfilling such person’s voluntary contract; nor enforced, restrained, molested or burdened in body or goods; nor disqualified from holding any office; nor otherwise suffer on account of such person’s religious belief; and that every person shall be free to worship God according to the dictates of such person’s conscience, and to profess and by argument to maintain such person’s opinion in matters of religion; and that the same shall in no wise diminish, enlarge or affect the civil capacity of any person.
R.I. Const., Art. 1, § 3 (1987).
233. Article II, Section 1, clause 7.