Religious Freedom: The War Between Two Faiths

by Herbert W. Titus

Next:   Constitutional Faiths in Conflict

“Though it be a man’s covenant yet if it be confirmed,
no man disannulleth, or addeth thereto.” Galatians 3:15

By a vote of 6 to 3, the United States Supreme Court rejected the claim that America’s legislatures have been violating the Establishment Clause of the First Amendment of the Constitution by hiring clergymen to act as their chaplains and paying them out of public funds. What is most remarkable about Chief Justice Warren Burger’s majority opinion in the case upholding the Nebraska legislature’s chaplaincy is that it does not rest upon the Court’s three-part test that has dominated the Establishment Clause cases since 1971. Rather, it relies solely upon the constitutional text and its historic meaning:

“In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke Divine guidance on a public body entrusted with making laws is not, in these circumstances, an establishment’ of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.” Marsh v. Chambers 463 U.S. 783, 792 (1983).

In his dissent, Justice Brennan chides the majority for neglecting the Court’s three-part test. He points out that had the majority followed recent case law, “it would have to strike … (the Nebraska chaplaincy practice) down as a clear violation of the Establishment Clause:”

“That the purpose of legislative prayer is preeminently religious rather than secular seems to me to be self-evident. To invoke Divine guidance on a public body entrusted with making the laws’ … is nothing but a religious act.

The primary effect’ of legislative prayer is also clearly religious … [I]nvocations in Nebraska’s legislative halls explicitly link religious belief and observance to the power and prestige of the state …

Finally, … the practice of legislative prayer leads to excessive entanglement’ between the State and religion ….First, … (in) the case of legislative prayer, the process of choosing a suitable’ chaplain … and insuring that the chaplain limits himself or herself to suitable’ prayers, involves precisely the sort of supervision that agencies of government should if at all possible avoid …. Second, excessive entanglement’ might arise out of the divisive political potential’ of state statute or program ….The controversy between Senator Chambers and his colleagues … has split the Nebraska legislature precisely on issues of religion and religious conformity.” Id. at 797-800.

Because the majority’s opinion rests upon such a flagrant disregard of the Court’s 1971 Lemon v. Kurtzman formula, Justice Brennan bravely contends that the majority has but “carved out an exception to the Establishment Clause rather than reshap[ed] Establishment Clause doctrine to accommodate legislative prayer.”

There is nothing in the majority opinion that even remotely suggests such an analysis. To the contrary, the Chief Justice, having analyzed the case without reference to the three-part test, gives no guidelines for any exception to it. Instead, he focuses exclusively upon the meaning of the word, “establishment,” as understood by the Founding Fathers and as illustrated by the history surrounding the legislative chaplaincy:

“This unique history leads us to accept the interpretation of the First Amendment draftsmen who saw no real threat to the Establishment Clause arising from a practice of prayer similar to that now challenged. We conclude that legislative prayer presents no more potential for establishment than the provision for school transportation, Everson v. Board of Education, 330 U.S. 1 (1947), beneficial grants for higher education, Tilton v. Richardson, 403 U.S. 672 (1971), or tax exemptions for religious organizations, Walz v. Tax Commission, 397 U.S. 664 (1970) …” Id. at 791.

By including the 1971 Tilton and the 1970 Walz cases in his summary, the Chief Justice indicates this majority’s willingness to subordinate the Court’s three-part test to the constitutional text and its original meaning. In short, the majority has ushered back into the Establishment Clause arena arguments resting upon the constitutional text and its historic meaning, rather than upon recent Court formulae.

Not only does the majority in Marsh v. Chambers give primary attention to the constitutional text, but they have assumed that the framers’ choice of language absolutely determined the purpose, meaning, and application of the Establishment Clause. They have expressed an unwillingness to reexamine that clause in light of the obvious changes in the political, religious, and social landscape that have occurred in the two centuries that have gone by since the Constitution was written.

The majority’s endorsement of such an absolute and fixed meaning of the terms of the Establishment Clause has provoked Justice Brennan to endorse once again his view that constitutional language is fluid and malleable:

“… (T)he argument tendered by the Court is misguided because the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers.” Id. at 816.

Unable to cite an Establishment Clause case to support this proposition, Justice Brennan cites his plurality opinion on sex discrimination in Frontiero v. Richardson, 411 U.S. 677 (1973) and the majority opinions on race discrimination in Brown v. Board of Education, 347 U.S. 483 (1954), on jury trial in Colegrove v. Battin, 413 U.S. 149 (1973), on cruel and unusual punishments in Trop v. Dulles, 356 U.S. 86 (1958), and on search and seizure in Katz v. United States, 389 U.S. 347 (1967).

The cite to the Trop case is most revealing. In that case, Chief Justice Earl Warren claimed that the cruel and unusual punishment clause did not have a “static” meaning, but one rooted in “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 100 (1958).

Armed with the Trop precedent, Justice Brennan confidently compares the legislative chaplaincy practice with the presumed unconstitutional status of a 1790 Congressional statute requiring persons who were convicted of certain theft offenses to “be publically whipped, not exceeding thirty-nine stripes.” Marsh v. Chambers, 463 U.S. at 814, n. 30. As the standards of decency have evolved under the cruel and unusual punishment clause to prohibit such punishment, so must, according to Brennan’s constitutional philosophy, the standards of “neutrality” and “separation” evolve under the Establishment Clause to prohibit legislative chaplaincies. Thus, Brennan dismisses past presidential practices, past scholarly expositions, and past Congressional intentions concerning the Establishment Clause as no longer relevant:

” … [O]ur religious composition makes us a vastly more diverse people than were our forefathers ….In face of such profound changes, practices which may have been objectionable to no one in the time of Jefferson and Madison may today be highly offensive to many persons, the deeply devout and the unbelievers alike.” Schempp, 374 U.S., at 240-241 (Brennan, J. concurring). Id. at 817.

In other words, Justice Brennan firmly believes that the Constitution is what the judges say it is, not what the framers meant it to be.

His colleagues, however, who joined Chief Justice Burger’s majority opinion are not quite as convinced. While each one, including the Chief Justice, have endorsed that view in previous Establishment Clause cases, they have in Marsh v. Chambers placed themselves once again within the orthodox tradition that was first established by Article VI of the Constitution: “This Constitution … shall be the supreme law of the land.”

Justice Brennan by preferring the Court’s three-part test in the 1971 Lemon case over the original meaning of the language of the 1791 First Amendment, has firmly rejected Article VI and, consequently, the original justification and practice of judicial review in America. While Brennan’s assumption about the nature of a constitution, the role of the court, and the meaning of the Establishment Clause conforms with almost all contemporary constitutional scholarship, his views are diametrically opposed to those of Chief Justice John Marshall, the first great spokesman of constitutional law in the United States.


Beginning with Marbury v. Madison, 1 Cranch. 137,2 L.Ed. 60(1803), Chief Justice Marshall forged a legacy of constitutional law that gave unquestioned primacy to the written text and to its framers’ intent. Twenty-four years after that decision, Marshall confidently summarized the “principles of construction, which ought to be applied to the Constitution of the United States,” as follows:

“To say that the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers, is to repeat what has been already said more at large, and is all that can be necessary.” Ogden v. Saunders, 12 Wheat. 213, 332, 6 L.Ed. 606, 647 (1827).

This rule of construction necessarily followed from Marshall’s commitment in Marbury to a constitution that embodies fixed principles that are changeable only through the extraordinary amendment process:

“The principles … are deemed fundamental … {T)hey are designed to be permanent …. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written ….The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.” Marbury v. Madison, 1 Cranch at 176-77.

While Marshall concentrated upon the threat of legislative changes to the Constitution in the Marbury case, it would be a mistake to assume that he thought that the Constitution could be molded as the judicial branch saw fit. Rather, he believed that the Courts were bound by the law stated in that document:

“Judicial power … has no existence. Courts are the mere instruments of the law, and can will nothing ….Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the judge; always for the purpose of giving effect … to the will of the law.” Osborn v. U.S. Bank, 9 Wheat. 738, 866 (1824).

Marshall’s views about the nature of law and the function and role of the judge reflected those of Sir William Blackstone who contended that the fundamental law of all nations was fixed, universal, and unchanging and that the duty of judges was to discover and articulate that law.1 University of Virginia law professor G. Edward White has captured this belief well in his summary of the Marshall legacy:

“Marshall’s principle justification for independent judicial review was that judges did not make law, but merely found’ or declared’ it.

Marshall’s argument assumed that law’ was a universal body of principles, that those principles were discoverable’ by technically skilled persons, such as judges, that in discovering,’ judges were merely stating what the law was.’ The only power judges had, under Marshall’s view, was their professional power; their technical expertise enabled them to be better finders’ of law than other persons.”2

Marshall believed that judges did not make law, but only found it, because he held to a Biblical world view that included a Creator God who had written into his creation laws that govern the societies of men. Therefore, Marshall assumed the role of the judge to be like that of the natural scientist-to discover the laws that govern the moral universe in which God has placed man.

Marshall’s faith was shared by his colleagues on the Court and by his contemporaries. Even Thomas Jefferson assumed that God had created the universe and placed man under the rule of universal standards, popularly known as the laws of nature and of nature’s God. Those laws of nature included the fundamental principle that all governments are instituted of men and ruled by the law of the social compact.

“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, That all men are created equal, that they are endowed by their Creator, with certain unalienable rights, that among these are life, liberty, 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 …3

This idea of the social compact undergirded all of the early writings on constitutional law, especially those of Marshall. And that idea came not from the Enlightenment by way of the pens of the French philosophers, but from the Old Testament by way of the pens of such men as Samuel Rutherford and John Locke. David Hoffman, well known in his time and well-thought of by such legal giants as Kent and Story, stated the conventional wisdom of early America about the origin of the social compact:

“The Bible … affords the only authentic history of the origin and multiplication of mankind; and by exhibiting the actual manner in which society was generated, and communities were formed, offers the best theory of the social compact. These remarks apply of course chiefly to those portions of the Bible connected with the origin and polity of the Jews.”4

Very few modern scholars have acknowledged these Biblical roots. One notable exception, however, has been Helen Silving who traced the Biblical idea of compact or covenant to the United States Constitution:

“The words compact’ and consent’ are not of recent vintage in political and legal thought. They rather derive meaning from the history of ideas traceable to remote ages of the development of Judaeo-Christian culture. The law of the Old Testament was based upon a Compact’ (brith) between Jahweh and the Children of Israel, and the ethics of the New Testament were reformulated in terms of a New Covenant or Compact, as first conceived by Jeremiah. In this original religious form, the principle of compact’ was imported into this country by the early colonists who came carrying their Bibles both in heart and hand.’ The religious views of the State Contract were translated into political principles in the writings of Hobbes, Locke and Rousseau, and in the United States particularly in those of Jefferson. As political principles, they were adopted by the framers of American political and constitutional doctrine. The idea of compact’ covers more than a page of history. That of consent of the governed’ was indeed incorporated into the Declaration of Independence, which though no longer part of our law, is yet the basis of our federal Constitution, for it is presupposed in the phrase, We, the People of the United States’.”5

At the heart of these Biblical covenant principles has been a fixed standard of law that governs all future generations. In the Old Testament book of Deuteronomy, God made a covenant with Israel to establish them as a nation (Deut. 5:2). This covenant included not only the Israelites alive at the time but their descendants as well (Deut. 5:3). The Ten Commandments, written by the very hand of God, contained the terms of the covenant. See Deut. 5:6-21 and Deut. 9:9. After the elders of Israel agreed to its terms, God revealed to Moses that the nation of Israel was bound to keep that exact covenant (Deut. 5:27-33). Even before this agreement was made, God warned the people of Israel neither to add to nor to subtract from the covenant (Deut. 4:1-3).

God, also, ordained that the same covenantal principles that governed His agreement with Israel would govern a covenant that the elders of Israel would later make with Kings Saul and David. In Deuteronomy 17, Moses prophesied that Israel would ask for a king “like as all the nations,” but that they would get a “covenant” king bound by the Laws of God (Deut. 17:14-20).

This prophecy came to pass in the days of Samuel. After the elders of Israel sought a king “like all the nations,” God gave them a king bound by a written covenant that Samuel prepared and laid before the Lord (I Sam. 8:5, I Sam. 10:25). That covenant bound the king to God’s Law as Israel’s first king, Saul, would soon discover. Twice Saul violated the terms of the covenant and twice Samuel exercised the authority of judicial review to hold Saul accountable to that covenant (I Sam. 13:13, I Sam. 15:11).

The lesson of I Samuel is clear: In order to insure the rule of law in a nation, the ruling authority shall be legally bound by a written covenant with the people. That lesson was taught to the English people by men like Samuel Rutherford who drew directly on the Biblical sources:

“… (T)he general covenant of nature is presupposed in making a King, where there is no vocal or written covenant, if there be no conditions betwixt a Christian King and his people, then those things which are just and right according to the law of God, and the rule of God in moulding the first King, are understood to regulate both King and People, as if they had been written: and here we produce our written covenant. Deut. 17.15. Josh. 1.8,9. 2 Chr. 31,32.1.”6

This lesson was mediated to the American people through John Locke whose social compact theory contributed to the Declaration of Independence and the several state and the United States Constitutions.7 It was implemented by John Marshall when he, as Samuel had done in Israel, exercised the authority of judicial review in Marbury v. Madison.

At the heart of Marshall’s justification of judicial review was his reliance upon one fact: that the United States Constitution was a written document. Over five times, Marshall referred to the written nature of the agreement, and then concluded:

“Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation … Those then who contradict the principle that the constitution is to be considered, in court, as a paramount law … would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory … (l)t thus reduces to nothing what we have deemed to be the greatest improvement in political institutions – a written constitution …” Marbury v. Madison, 1 Cranch 137, 177-78,2 L.Ed. 60,73-74 (1803).

The Marshall legacy, then, has not only been a commitment to the unquestioned primacy of the written constitutional text as understood by the framers, but to a world view that posited a Creator God who had given man universal and unchanging law, and who had guided man to establish civil government under a written covenant containing fixed principles. Thus, Marshall believed that the task of the judge was to discover and to apply the law written in the Constitution, not to create it and to change it as the judge saw fit.


In his book, Judicial Legislation, Fred Cahill, Professor of Political Science at Yale, documented the influence of Blackstone on early American constitutional theory:

“… Americans tended to justify judicial review in Blackstonian terms …. And it can be hazarded that at the outset of our history under the Constitution, judicial review was acceptable because of general adherence to Blackstone’s notion of the judicial function.8

According to Blackstone, judges were “the living oracles … who are bound by oath to decide according to the law of the land …”9 Thus, Alexander Hamilton assured the people in The Federalist, No. 78, that the judges were bound by the Constitution as fundamental law, even as they exercised their authority of judicial review:

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both: and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

Beginning with the mid-19th century, scholars became dissatisfied with Blackstone’s and Hamilton’s descriptions of the judicial function. Under the influence of Darwin’s new evolutionary theory about the origin of the universe and of man, scholars began to question the assumption that judges only discovered law. According to Professor Cahill’s study, “the concept of evolution was an event of transcending importance to the development of American jurisprudence”10 and led directly to a new assumption that judges did not discover law, but that they, in fact, made it.

That has become today’s conventional wisdom taught in almost every law school in America. Moreover, it has been presumed to be true about judicial review and constitutional law as Professor G. Edward White has pointed out in his article on the Supreme Court in the Judicature magazine:

“Law is no longer seen as a finite body of universal principles, and judges are no longer seen as persons who merely find and declare those principles. Twentieth-century perspectives on the Court start with two different assumptions. Law is seen as a fluid mix of established principles and changing social values, and judges, in constitutional law and elsewhere, are seen as persons who make law by creating new principles, often in response to changes in social values.”11

This new evolutionary faith has been endorsed by scholars, judges, and lawyers alike. Not only did Justice Brennan’s dissent in the Marsh case endorse this new faith, but the Court’s opinions in the religious freedom area for the past twenty years have embraced it. Not surprisingly the first such opinion that rested squarely upon such evolutionary premises was written by Justice Brennan in 1963.

In Sherbert v. Verner, 374 U.S. 398 (1963), a majority of the Court for the first time utilized the “compelling state interest” test to resolve a claim under the Free Exercise Clause of the First Amendment. Justice Brennan derived this new test from Thomas v. Collins, 323 U.S. 516 (1945), an early free speech case resolved by the Court under the old case-by-case due process methodology that was championed by Justice Felix Frankfurter. According to Frankfurter, the due process clause was a term of “convenient vagueness” that allowed judges to define and redefine its meaning depending upon the circumstances:

“Great concepts like … due process of law’ … were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact.” National Ins. Co. v. Tidewater Co., 337 U.S. 582, 646 (1949) (Dissenting opinion.)12

Justice Brennan did not even pause in his Sherbert opinion to ask whether a rule anchored to a 1945 case fit into the newly emerging selective incorporation doctrine soon to be embraced by the Court in Duncan v. Louisiana, 391 U.S. 145 (1968). Nor did he ask whether the language of the Free Exercise Clause was intended to be as open-ended as the Due Process Clause. Whatever the reason for these omissions, the Sherbert opinion presaged what would soon become the explicitly stated conventional view of the whole constitutional document.

In 1978, Harvard Law Professor Laurence Tribe published his treatise on American Constitutional Law. Widely read and acclaimed by legal scholars and practitioners alike, the book skyrocketed Professor Tribe into a position of unquestioned prominence in constitutional law. In fact, he has become the leading spokesman for the new constitutional faith that has dominated the Court over the past 20 years:

“… (T)he Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideals and governmental practices.”13

The compelling state interest test has been deliberately tailored to impose this new evolutionary faith upon the Free Exercise Clause. As can best be illustrated by an analysis of the Sherbert case along with Wisconsin v. Yoder, 406 U.S. 205 (1972), United States v. Lee, 101 U.S. 1051 (1982), and in Bob Jones Univ. v. United States, 461 U.S. 574, (1983).

In each of these four cases, the Court conceded that the Free Exercise claims were rooted in the bona fide religious beliefs of the claimants: In Sherbert, the refusal to work on Saturday, the Sabbath of the Seventh-Day Adventist claimant; in Yoder, the refusal of the Amish claimants to send their children to school past the eighth grade; in Lee, the refusal of the Amish claimant to participate in the social security system; and in Bob Jones, the refusal to allow interracial dating and marriage among its students. Yet the Court upheld the Free Exercise claims in Sherbert and in Yoder, but struck them down in Lee and Bob Jones.

The claims in Sherbert and Yoder survived the Court’s balancing test because the Court did not believe the government interests to be of sufficient weight to override the claimant’s religious convictions. For example, in Sherbert, the state’s interest in denying unemployment benefits to those who “feigned religious objections to Saturday work” was not considered of such magnitude as to relieve the state from the administrative burden to determine if a Seventh-Day Adventist’s claim was genuine. In Yoder, the state’s interest in preparing a “child for life in modern society” was not considered of such magnitude as to require education past the eighth grade for an Amish child who would live in a separated and self-sufficient agrarian community.

But the Amish, even though living in that same self-sufficient and separated agrarian community, must pay the social security tax because the social security system’s demand for money is, according to the Court in Lee, of such magnitude as to require his participation. Likewise, after Bob Jones, a person with religious convictions about race relations must subordinate those to the government which “has a fundamental, overriding interest in eradicating racial discrimination in education discrimination that prevailed, with official approval, for the first 165 years of this nation’s history.” Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983).

As this quote from Bob Jones reveals, the compelling state interest test has enabled the Court to assess every Free Exercise claim in light of “changing values.” Indeed, it has invited the Court to make its own value assessment and to impose its own will under the auspices of the Constitution. What may have been protected under the Free Exercise Clause in the past may not be today because the value picture painted by the Court has changed.

One need only read the Yoder opinion to determine what arguments a state could make next time when its compulsory education system is refused by another Amish or other minority religious family in another place at another time. The Court has literally telegraphed a message to the state’s attorney on how to prepare and to argue that future case:

“The State argues that if Amish children leave their church they should not be in the position of making their way in the world without the education available in the one or two additional years the state requires. However, on this record, that argument is highly speculative. There is no specific evidence of the loss of Amish adherents by attrition, nor is there any showing that upon leaving the Amish community Amish children, with their practical agricultural training and habits of industry and self-reliance would become burdens on society because of educational shortcomings.” Wisconsin v. Yoder, 406 U.S. 205, 224 (1971).

The current three-part Establishment Clause test has also embraced the same evolutionary faith. The third prong has called for the same kind of balancing. The prohibition against fostering “an excessive government entanglement of religion” has required the Court to assess the degree of state supervision of religious activities to determine if the required monitoring and oversight is “impermissible.” One need only examine the Court’s opinions concerning government aid to parochial schools to see that this test has given the Court free reign to make factual and value judgments based upon their own preconceived views of the appropriate relationship between church and state. See, e.g., Wolman v. Walter, 433 U.S. 229 (1977). Those justices who oppose any form of aid to parochial schools (even the transportation and textbook subsidies that have been approved by the Court) have taken great care to find some fact situation, hypothetical or real, to support their conclusion of “excessive entanglement.” On the other hand, the justices who favor some aid to such schools have avoided careful scrutiny of the same fact situations in order to support their conclusion of permissible monitoring and oversight.

For example, in the Wolman case, Justice Blackmun scrutinized with great care the possible government entanglements that might arise in financially supporting non-public school field trips. He emphasized that field trips are meaningful primarily because of the involvement of the teacher and that teachers at sectarian schools would inevitably integrate their faith with the trip which, in turn, would call for close state supervision and monitoring to insure that field trips are kept secularly pure. Justice Powell, on the other hand, simply ignored the involvement of the teacher in the field trip and emphasized that the state tax money supported only the use of a bus and driver. Justice Blackmun was joined by Brennan, Marshall, Stevens and Stewart who tend to oppose all state aid to parochial schools. Justice Powell was joined by the Chief Justice, Rehnquist and White who tend to favor some aid in order to foster pluralism in American education.

The second issue addressed by the “excessive governmental entanglements” prong has been the prevention of potential political divisiveness along religious lines. This concern has been quickly dismissed in most cases since it was first articulated in Lemon.14 Nevertheless, Justice Brennan utilized it in his analysis of the Nebraska legislature chaplaincy program. His analysis has proved conclusively that this part of the excessive entanglements test has been designed specifically to accommodate the Court’s desire to adjust constitutional standards to its perception of changing circumstances over the course of time.

In support of his conclusion that “the history of legislative prayer has been … divisive,” Justice Brennan included a footnote documenting such controversies “at points in the 19th century” and “[i]n more recent years.” One of Brennan’s examples from the latter period is an event that took place in Oregon when several state legislators walked out in protest over a prayer offered by an eastern religious guru. Obviously, such a religiously divisive controversy could not have occurred at the time the Constitution was written when a more homogeneously religious group populated America’s legislative bodies. But under this second branch of the excessive entanglements test, the Constitution must change to accommodate changes in the religious preferences of the American people.

But the evolutionary bias of the three-part test has not been confined to its third prong. Even the second prong, that the primary effect of law neither advance nor inhibit religion, has allowed the Court to engage in factual and statistical analyses that camouflage a changing Court’s value preferences. In 1983, the Court upheld a Minnesota tax deduction scheme for tuition, textbook, and transportation expenses incurred by parents sending their children to primary and secondary schools. Mueller v. Allen, 463 U.S. 388 (1983). Justice Rehnquist, writing for a majority of five, refused to consider in any detail the contention that almost all of the tax benefits from this deduction accrued to parents who sent their children to religious schools. Id. at 400-403. Justice Marshall in dissent placed great emphasis upon such facts. Id. at 404-408. Underlying this difference of opinion was the current majority of five’s obvious preference for a state-encouraged, and where possible a state-supported, pluralistic education system over its concern for excessive state support for the proselytizing activities of religious groups. The minority of four was, of course, much more concerned about neutralizing any state efforts that provided any assistance whatsoever to religious groups. Compare Id. at 400-403 with Id. at 412-415.

These extra constitutional value and factual assessments have clearly allowed the Court not only to adjust the second prong to changes in the composition of the Court but to changes in the political marketplace. For example, Justice Rehnquist in the Mueller case distinguished an earlier case in which a New York tax deduction scheme had been disallowed on the grounds that the Minnesota tax deduction was available to all parents not just to those who send their children to non-public schools and that the total Minnesota tax scheme channeled the benefits to the parents rather than to the schools. Id. at 397-400. Respect for such niceties have encouraged legislatures to make law according to a changing factual and political landscape rather than conforming its law to a principled and previously ascertained standard.

Finally, the Court has accommodated the evolutionary bias in its failure to make definite the meaning of the two key words in the first and second prongs of its three-part test: religious and secular. By not defining them, the Court has found no difficulty with a state statute that grants religious Sabbatarians an exemption from Sunday closing laws, but not “non-religious Sabbatarians.” Arlan s Dept. Store v. Ky., 371 U.S. 218 (1962). And it has been able to affirm a Congressional exemption from military service for religious objectors to all wars but not for religious objectors to unjust wars, much less for non-religious objectors to all wars. See Gillette v. United States, 401 U.S. 437 (1971). Moreover, the Court has been able to reaffirm school board released time off-campus religious programs and at the same time disallow that same program on campus as having a “religious purpose” or “primary effect of advancing religion.” Compare Zorach v. Clauson, 343 U.S. 306 (1951) with McCollum v. Board of Education, 333 U.S. 203 (1948). Only an open-ended definition of religion without restrictive guidelines for the Court can explain such results.

Moreover, words without definite content have enabled the justices to play verbal gymnastics to reach the desired result as Justice Thurgood Marshall’s opinion in the selective conscientious objector case reveals:

“Properly phrased, petitioners’ contention is that the special statutory status accorded conscientious objection to all war, but not objection to a particular war, works a de facto discrimination among religions. This happens, say petitioners, because some religious faiths themselves distinguish between personal participation in just’ and in unjust’ wars … and therefore adherents of some religious faiths-and individuals whose personal beliefs of a religious nature include the distinction-cannot object to all wars consistently with what is regarded as the true imperative of conscience. Of course this contention … cannot simply be brushed aside … for the Establishment Clause forbids subtle departures from neutrality, religious gerrymanders,’ as well as obvious abuses. Still a claimant alleging gerrymander’ must be able to show the absence of a neutral, secular basis for the lines government has drawn.

Section 6(j) serves a numbr of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religion. There are considerations of a pragmatic nature, such as the hopelessness of converting a sincere conscientious objector into an effective fighting man, but no doubt the section reflects as well … respect for the value of conscientious action and for the principle of supremacy of conscience.

Naturally the considerations just mentioned … support the existence of an exemption rather than its restriction specifically to persons who object to all war. The point is that these affirmative purposes are1 neutral in the sense of the Establishment Clause. Gillette v. U.S., supra, at 451-453.”

Just how “religiously neutral” this preference for absolute conscientious objection is, Marshall never said. Nor did he say what neutral means in the “Establishment Clause sense.” “Neutrality” like “religion, and “secular” has remained also an undefined term. Thus, the Court has been able to avoid making any absolute and final judgments that may jeopardize its flexibility to take into account future societal values.

Only one Supreme Court justice has been brave enough to attempt an authoritative definition of the “secular” and the “religious.” Justice Stevens in his concurring and dissenting opinion in Wolman v. Walter, supra, at 264, offered the following:

“The distinction between the religious and secular is a fundamental one. To quote from Clarence Darrow’s argument in the Scopes case:

The realm of religion … is where knowledge leaves off, and where faith begins, and it never has needed the arm of the State for support and wherever it has received it, it has harmed both the public and the religion that it would pretend to serve.'”

It should come as no surprise that Stevens borrowed his definition from Clarence Darrow. Not only was Darrow not a framer of the Constitution, but he was an ardent supporter of Darwin’s theory of evolution. If the Court is to implement its evolutionary faith through the Establishment Clause, Stevens could have chosen no better champion than the advocate for the side of evolution in the very case in which the statement was made.

Next:   Constitutional Faiths in Conflict


*     Copyright © 1984, 2021 Herbert W. Titus. This article originally published in Journal of Christian Jurisprudence, Vol. 5 (1984-1985). For nearly thirty years Herbert W. Titus taught constitutional law at four different A.B.A.-approved law schools. From 1986 to 1993 he was the founding dean of the law school at Regent University.
     1.    W. Blackstone, Commentaries 38-44,69-71. For an extensive review of the Blackstone legacy, see Titus, “Moses, Blackstone, and the Law of the Land,” I C.L.S. Quarterly 5 (Fall 1980) and Titus, “God, Man, Legal Education, and Law,” 1980 J. Christian Juris. 11.
     2.    White, “Reflections on the Role of the Supreme Court,” 63 Judicature 162, 163 (1979).
     3.    For a careful examination of the godly principles in America’s Declaration of Independence, see Titus, “America’s Declaration of Independence: The Christian Legacy.”
     4.    D. Hoffman, A Course of Legal Study 64-65 (1846). The Bible was of singular importance to lawyers in early America. See, e.g., Shaffer, “David Hoffman on the Bible as a Law Book,” 2 C.L.S. Quarterly 5 (Fa11 1981).
     5.    H. Silving, Sources of Law at 56 (1968).
     6.    S. Rutherford, Lex Rex at 106 (1644).
     7.    See, e.g., T. Pearson, “Introduction” to J. Locke, Second Treatise of Government xx (Liberal Arts Press: 1952) and Titus, “America’s Declaration of Independence: The Christian Legacy.”
     8.    F. Cahill, Judicial Legislation at 10 (1952).
     9.    W. Blackstone, Commentaries 69.
   10.    F. Cahill, supra note 8, at 22.
   11.    White, “Reflections on the Role of the Supreme Court,” 63 Judicature, supra note 2, at 164.
   12.    Wallace Mendelson in his book on Justices Black and Frankfurter wrote: “Due Process of law (is among the terms that) doubtless were designed to have the chameleon capacity to change their color with changing moods and circumstances.” W. Mendelson, Justices Black and Frankfurter: Conflict in the Court viii (1961).
   13.    L. Tribe, Constitutional Law iii (1978) Whatever differences others may have with Tribe, almost no one has contested his faith premise. Even those who place more confidence in the constitutional text than in Tribe’s or the Court’s modern formulations have adopted the same evolutionary assumptions. Consider, for example, the following:
“The Constitution has been written in a language, and a user of language must be taken to know and intend that the language is open to interpretation. Although a user of language has intentions that are relevant in determining what the user meant to say, the user has no power to veto the conventions of the language that have been used. Constitutional interpretations can change because linguistic conventions and presuppositions change, even though the words remain the same.” Schauer, “An Essay on Constitutional Language,” 29 U.C.L.A. L. Rev. 797, 831 (1982).
   14.    See, e.g., Justice Powell’s concurring and dissenting opinion in Wolman v. Walter, 433 U.S. 263 (1978): “The risk of significant religious or denominational control over our democratic processes – or even of deep political division along religious lines – is remote….”