The Meaning of the First Amendment

[Paul]

Just a year after Everson, the Supreme Court was asked to overturn the decision, in the case of McCollum v. Board of Education, 1948. In ruling on McCollum, the Court set out in much greater detail the reasoning behind its interpretation of the First Amendment.

At issue was whether a school board in Illinois could employ approved voluntary religious teachers of the Catholic, Protestant, and Jewish faiths to give instruction on their beliefs once each week of 30 and 45 minute durations. Pupils attended the instruction only at the request of their parents, but other students were not "released from their public school duties, which were compulsory under state law." A resident and tax payer of the school district with a child enrolled in the school system sued for an order to have the practice terminated of releasing pupils for religious instruction.

A preliminary issue to be decided was whether the person bringing suit had sufficient involvement in the circumstances to allege a legal violation of personal rights. In other words, could parents who are residents and tax payers of the school district sue to terminate the manner in which other students were taught, when their own child was actually excused from the instruction. The Court held McCollum did have an interest in the case, as the district had a compulsory education law, violation of which was a misdemeanor, punishable by a fine. However, Justice Jackson in actually concurring with the ruling of the court, still questioned whether there was jurisdiction to decide the case.

The school board challenged the ruling of Everson and urged its repudiation, contending that the First Amendment was intended to forbid only government preference of one religion over another, and further contending that the Establishment Clause could not be held as a prohibition against states through the 14th Amendment.

The Court held --

This utilization of the State's tax supported public school system and its machinery for compulsory public school attendance to enable sectarian groups to give religious instruction to public school pupils in public school buildings violates the First Amendment of the Constitution, made applicable to the states by the Fourteenth Amendment... The foregoing facts, without reference to others that appear in the record, show the use of tax supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond question utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the Sates by the Fourteenth) as we interpreted in Everson v. Board of Education... The majority in the Everson case, and the minority as shown by quotations from the dissenting views in our notes...agreed the First Amendment's language, properly interpreted, had erected a wall separation between Church and State... To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a government hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere.

Then, Justices Frankfurter, Jackson, Rutledge, and Burton set out a concurring opinion. They noted that to understand the wall of separation metaphor, the relevant history of religious education in America must be considered, the place of the "released time" movement in that history, and its precise manifestation in the McCollum case. Traditionally, organized education had to be church education, and colonial schools certainly had a religious orientation.

The evolution of colonial education largely in the service of religion, into the public school system of today is the story of changing conceptions regarding the American democratic society, of the functions of state-maintained education in such a society, and the role therein of the free exercise of religion by the people. The modern public school derived from a philosophy of freedom reflected in the First Amendment.

The basic event in the history of religious liberty of the Remonstrance of James Madison arose from a proposal of state support to religious education. This event evoked similar contests in other states, such as New York and Massachusetts, which disassociated religious teaching from state maintained schools. These controversies, often long and fierce, may be summarized in noting the prohibition of religious instruction by the state as a guiding principle, in law and feeling, of the American people, established long before the 14th Amendment applied the Establishment Clause of the First Amendment to the states. Thus, separation of the field of education was not imposed on unwilling states by force of superior law, but the 14th Amendment merely reflects a dominant principle in our national life. The restriction on religious instruction in the schools is based on the whole experience of our people.

Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instrument but especially through its educational agencies was the democratic response of the American community to the particular needs of a young and growing nation, unique in the composition of its people.

The principle of separation of the field of education was not due to a decline in religious beliefs, nor a minimizing of religious claims, but reflected a means of reconciling freedom in general with religious freedom.

The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressure in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, of religion from censorship and coercion, however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home indoctrination in the faith of his choice.

This development of the public school as a symbol of our secular unity was not a sudden achievement, nor attained without conflict... by 1875, the separation of public education from Church entanglements, of the State from the teaching of religion, was firmly established in the conscious of the nation. In that year, President Grant made his famous remarks to the Convention of the Army of Tennessee --
"Encourage free schools, and resolve that not one dollar appropriated for their support shall be appropriated to the support of any sectarian schools. Resolve that neither the State nor nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmarred with sectarian, pagan, or atheistic dogmas. Leave the matter of religion to the family altar, the church and the private school, supported entirely by private contributions. Keep the church and state forever separate."

...President Grant urged that there be written into the United States Constitution particular elaborations, including a specific prohibition against the use of public funds for sectarian education...It is not a question of religion, or of creed, or of party; it is a question of declaring and maintaining the great American principle of eternal separation between Church and State... The extent to which this principle was deemed a presupposition of our Constitutional system is strikingly illustrated by the fact that every State admitted into the Union since 1876 was compelled by Congress to write into its constitution a requirement that it maintain a school system 'free from sectarian control.'

However, the prohibition of commingling sectarian and secular instruction in the schools led to the rise of the time release movement,which may be attributed to Dr. George V. Wenner. The proposal was based on the assumption that the public schools unduly monopolized the child's time, and churches were entitled to their fair share of it. In 1905, the Interfaith Conference on Federation held in New York City urged that the public schools excuse students on Wednesday afternoon to attend Sunday school at churches. After considerable opposition, in 1914 Gary, Indiana inaugurated the scheme.

In general, undefined released time programs are not a matter of judicial Constitutional concern. However, if the public schools become involved in the way the religious instruction is carried out, the Court may be called upon to protect the right of religious freedom. In the school district of the McCollum case, the religious classes were conducted in regular class rooms of the public schools, by unpaid church teachers, but at the approval and supervision of the school district superintendent.

Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a 'wall of separation,' not a fine line easily overstepped. The public school is at once the symbol of our democracy and the most persuasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart. 'The great American principle of eternal separation' -- Elihu Root's phrase bears repetition -- is one of vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity.

We renew our conviction that 'we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.' Everson v. Board of Education...If nowhere else, in the relation between Church and State, 'good fences make good neighbors.'

Justice Reed in dissenting notes that it is difficult to extract from the decision of the Court what it is about the time release plan reviewed that is unconstitutional. There was no compulsion for student to attend religious instruction.

Darwinian Jurisprudence

McCullum emphasizes that although religion was inherent in the education systems of the nation when it was founded, through a process of historical evolution, it became the will of the people to restrict and disassociate religious instruction from the schools, in order to promote freedom in general, and to avoid the strife of religious sects. Therefore, the ruling of the Court does not impose the separation of religious instruction "upon unwilling states by force of superior law."

Where does the concept come from, that the Supreme Court can change the meaning of the First Amendment based on historical evolution?

Originally, the Constitution was based on English Natural Law. To understand this concept, note the stated basis of the Declaration of Independence --

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 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...

English Natural Law can be found in the writings of Samuel Rutherford in Lex, Rex. This work became the defining basis of the English Civil War, which transferred power from the King to Parliament. The mantra then was no taxation without representation, as it was with the Magna Carta and the American Revolution. And in English and American history, the common law was primarily based on Scripture, best represented by Blackstone's Commentaries. English Natural Law finds all law has its source in God, and that judges discover and apply law but do not make law.

However, after Darwin developed his theory of evolution, the legal profession in America came to consider basing the law on a belief in God as stupid. A myth or fairy tale could no longer be used to establish jurisprudence, which now had to be considered a science. Jurisprudence had to be based on evolution, a historical process. Just as Marxism represented the scientific approach to government, based on historical evolution, the law also was gradually moving in particular directions, that an elite group of experts had to identify and establish.

A most fitting example of this new philosophy of jurisprudence is found in a famous legal commentary by Benjamin N. Cardozo, The Nature of the Judicial Process, published in 1921.

The following quotations illustrate Cardozo's point of view.

The common law does not work from pre-established truths of universal and inflexible validity to conclusions derived from them deductively. Its method is inductive, and it draws its generalizations from particulars. The process has been admirably stated by Munroe Smith: 'In their effort to give to the social sense of justice articulate expression in rules and in principles, the method of the lawfinding experts has always been experimental. The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice'... It goes on inch by inch. Its effect must be measured by decades and even centuries. Thus measured, they are seen to have behind them the power and the pressure of the moving glacier... The changes, as they were made in this case or that, may not have seemed momentous in the making. The result, however, when the process was prolonged throughout the years, has been not merely to supplement or modify; it has been to revolutionize and transform. For every tendency, one sees to see a counter-tendency; for every rules its antinomy. Nothing is stable. Nothing absolute. All is fluid and changeable. There is an endless becoming... The problem remains to fix the bounds and the tendencies of development and growth, to set the directive force in motion along the right path and at the parting of the ways.

And Cardozo found natural law as an ancient system based on even more ancient theories.

The old Blackstonian theory of pre-existing rules of law which judges found, but did not make, fitted with a theory still more ancient, the theory of natural law... Recent juristic thought has given it a new currency, though in a form so profoundly altered that the old theory survives in little more than name. The law of nature is no longer conceived as something static and eternal.

Thus, before a separation of church and state was found in the First Amendment, a separation of God and the law was established in the American legal profession.

Final Note

As my posting continues at this point of our review, I will consider further cases associated with the Establishment Clause.

M. Paul Webb
Copyright

[Paul]

In Zorach v. Clauson, 1952, the Court suddenly became much more sympathetic to religious expression in the United States. The Court reaffirmed that the separation of church and state is absolute and unequivocal in one sentence, and in the next stated that there cannot be such a separation in every and all respects. The Court acknowledged that we "are a religious people whose institutions presuppose a Supreme Being."

Why the sudden seeming reversal? Justice Black in dissenting noted that the McCollum decision had been subjected to intense examination throughout the country, stirring almost unprecedented attention and debate, with some pledging warfare against it. He found the Zorach decision wrong, as the intention of the First Amendment was to protect atheists and agnostics from being tortured, maimed, and killed by zealous believers. Justice Frankfurter in dissenting noted that evidence to support a different outcome was not admitted for review.

At issue was whether New York City could permit its public schools to release students during school hours, on written request by their parents, to go to religious centers for instruction and devotion. Those students not released stayed in the public school classrooms.

The Court held the release program did not violate the First Amendment, neither prohibiting the free exercise of religion, nor making a law respecting an establishment of religion. No evidence was found indicating coercion on students to attend the religious classes.

The Court distinguished Zorach from McCollum, in that there was no religious instruction in public school classrooms. To the contention that by this release program the weight and influence of the public school was put behind religious instruction, the Court noted that no one is forced to go to the religious instruction. Without evidence of coercion, there was no establishment of religion.

The First Amendment, however, does not say that, in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other. That is the common sense of the matter. Otherwise the state and religion would be aliens to each other -- hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths -- these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: "God save the United States and this Honorable Court."

We would have to press the concept of separation of Church and State to these extremes to condemn the present law on constitutional grounds...

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here.

Justice Black dissented. He asserted that the case was beyond question a use of a tax supported public school system "to aid religious groups and to spread their faith." He found no significant difference between Zorach and McCollum.

I am aware that our McCollum decision on separation of Church and State has been subjected to a most searching examination throughout the country. Probably few opinions from this Court in recent years have attracted more attention or stirred wider debate. Our insistence on "a wall between Church and State which must be kept high and impregnable" has seemed to some a correct exposition of the philosophy and a true interpretation of the language of the First Amendment to which we should strictly adhere. [Footnote 2/1] With equal conviction and sincerity, others have thought the McCollum decision fundamentally wrong, [Footnote 2/2] and have pledged continuous warfare against it. [Footnote 2/3]...

It was precisely because Eighteenth Century Americans were a religious people divided into many fighting sects that we were given the constitutional mandate to keep Church and State completely separate. Colonial history had already shown that, here as elsewhere, zealous sectarians entrusted with governmental power to further their causes would sometimes torture, maim and kill those they branded "heretics," "atheists" or "agnostics." [Footnote 2/5]

Justice Frankfurter in dissenting noted that there was no evidence of coercion as it was disallowed.

Justice Jackson in dissenting challenged the Court's suggestion that opposition to the time release program could only be anti-religious, atheistic, or agnostic. The students not released were actually being punished, as the public school classroom then served as a temporary jail for them.

Final Note

By the time of Zorach, the nation was caught up in debate over the meaning of the religious clauses in the First Amendment. The historical bases the Court used for the Everson decision had to be questioned. Should the reaction of Madison and Jefferson to proposed legislation in Virginia in 1785-86 be considered the determining factor of the intended meaning of the Amendment or even the primary focus of its history? Was the real emphasis of the Amendment to protect atheists and agnostics from being maimed and killed by zealous believers?

Next we will review Engel v. Vitale, 1962.

M. Paul Webb
Copyright

[Paul]

In Engel v. Vitale, 1962, indeed, the Court dealt more extensively with the historical basis to the First Amendment. Perhaps, the Court recognized that the true historical record created a problem regarding their prior decisions, which somehow had to be addressed?

At issue was whether a board of education in New York could require the recitation of an official state prayer at the beginning of each day. The prayer was denominationally neutral, and pupils could choose to remain silent or to be excused during the recitation. The prayer was said in the presence of a teacher and consisted of -- "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, and our parents, our teachers and our Country."

The Court held the recitation of the prayer was wholly inconsistent with the Establishment Clause, as it was a religious activity, "an avowel of divine faith and supplication for the blessings of the Almighty."

The Court supported its position with another review of history. The Court began by noting the governmentally established Book of Common Prayer, (which led to the English Civil War), as one of the reasons early colonists moved to America in seeking religious freedom. The controversies over this book repeatedly disrupted the peace of England, with powerful groups struggling to impress their particular views on the government. The Court found it an unfortunate fact of history, that some of these groups, that most strenuously opposed the Church in England, when they came into control of colonial governments, tried to write their own prayers into law and established official religions.

Indeed, as late as the time of the Revolutionary War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. [Footnote 10] But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia, where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained such strength that the adherents to the established Episcopal Church were actually a minority themselves. In 1785-1786, those opposed to the established Church, led by James Madison and Thomas Jefferson, who, though themselves not members of any of these dissenting religious groups, opposed all religious establishments by law on grounds of principle, obtained the enactment of the famous "Virginia Bill for Religious Liberty" by which all religious groups were placed on an equal footing so far as the State was concerned. [Footnote 11] Similar though less far-reaching legislation was being considered and passed in other states. [Footnote 12]

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say -- that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.

The Court then addressed the issues of whether the prayer was actually outside the restrictions of the Establishment Clause -- 1. as the prayer was denominationally neutral, 2. and as its observance by students was voluntary.

The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. [Footnote 13] That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. [Footnote 14] The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. [Footnote 15] Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. [Footnote 16] The Founders knew that, only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind [Footnote 17] -- a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding "unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . ." [Footnote 18] And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. [Footnote 19] It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights, with its prohibition against any governmental establishment of religion.

The Court then addressed the issue of whether their application of the Establishment Clause as prohibiting religious services in a public school indicated a hostility toward religion or prayer.

The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that "More things are wrought by prayer than this world dreams of." It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. [Footnote 20] And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance. [Footnote 21]

[Footnote 20]
Perhaps the best example of the sort of men who came to this country for precisely that reason is Roger Williams, the founder of Rhode Island, who has been described as "the truest Christian amongst many who sincerely desired to be Christian." Parrington, Main Currents in American Thought (1930), Vol. 1, at p. 74. Williams, who was one of the earliest exponents of the doctrine of separation of church and state, believed that separation was necessary in order to protect the church from the danger of destruction which he thought inevitably flowed from control by even the best-intentioned civil authorities:

"The unknowing zeale of Constantine and other Emperours did more hurt to Christ Jesus his Crowne and Kingdome then the raging fury of the most bloody Neroes. In the persecutions of the later, Christians were sweet and fragrant, like spice pounded and beaten in morters: But those good Emperours, persecuting some erroneous persons, Arrius, &c. and advancing the professours of some Truths of Christ (for there was no small number of Truths lost in those times) and maintaining their Religion by the materiall Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep. . . ."

Williams, The Bloudy Tenent, of Persecution, for cause of Conscience, discussed in A Conference betweene Truth and Peace (London, 1644), reprinted in Narragansett Club Publications, Vol. III, p. 184. To Williams, it was no part of the business or competence of a civil magistrate to interfere in religious matters:

"[W]hat imprudence and indiscretion is it in the most common affaires of Life, to conceive that Emperours, Kings and Rulers of the earth must not only be qualified with politicall and state abilities to make and execute such Civille Lawes which may concerne the common rights, peace and safety (which is worke and businesse, load and burthen enough for the ablest shoulders in the Commonweal), but also furnished with such Spirituall and heavenly abilities to governe the Spirituall and Christian Commonweale. . . ."

Id. at 366. See also id. at 136-137.

The Court then noted that alarm must be taken at the first experiment with our liberties, even a brief prayer, by quoting James Madison.

To those who may subscribe to the view that, because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment:

"t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever? [Footnote 22]"

In concurring with the decision of the Court, Justice Douglas defined the issue as whether the government can constitutionally finance a religious exercise. He noted our system is honeycombed with such financing, but he believed it unconstitutional in any form.

He noted the New York school prayer was also how the Court opens its session, by crying out, "God save the United States and this Honorable Court." The New York prayer was also how each House of Congress opens sessions each day, with having chaplains officiate. These prayers cannot be held as having an element of coercion. However, the teacher leading the prayer in the New York classroom was on the payroll and was a public official. Authorizing the prayer was not establishing a religion in the strictly historical sense, but the New York prayer financed a religious exercise. He noted that the [i]Everson decision was incorrect as it permitted taxpayer money to pay bus fares for parochial students.

In the footnotes to Justice Douglas' opinion, he set out an extensive historical record, to be distinguished as not having relevance to the issue in Engel, as he defined it.

[Footnote 2/1]
"There are many 'aids' to religion in this country at all levels of government. To mention but a few at the federal level, one might begin by observing that the very First Congress, which wrote the First Amendment, provided for chaplains in both Houses and in the armed services. There is compulsory chapel at the service academies, and religious services are held in federal hospitals and prisons. The President issues religious proclamations. The Bible is used for the administration of oaths. N.Y.A. and W.P.A. funds were available to parochial schools during the depression. Veterans receiving money under the 'G.I.' Bill of 1944 could attend denominational schools, to which payments were made directly by the government. During World War II, federal money was contributed to denominational schools for the training of nurses. The benefits of the National School Lunch Act are available to students in private as well as public schools. The Hospital Survey and Construction Act of 1946 specifically made money available to nonpublic hospitals. The slogan 'In God We Trust' is used by the Treasury Department, and Congress recently added God to the pledge of allegiance. There is Bible reading in the schools of the District of Columbia, and religious instruction is given in the District's National Training School for Boys. Religious organizations are exempt from the federal income tax, and are granted postal privileges. Up to defined limits -- 15 percent of the adjusted gross income of individuals and 5 percent of the net income of corporations -- contributions to religious organizations are deductible for federal income tax purposes. There are no limits to the deductibility of gifts and bequests to religious institutions made under the federal gift and estate tax laws. This list of federal 'aids' could easily be expanded, and, of course, there is a long list in each state."

Fellman, The Limits of Freedom (1959), pp. 40-41.

[Footnote 2/2]
West Point Cadets are required to attend chapel each Sunday. Reg., c. 21, § 2101. The same requirement obtains at the Naval Academy (Reg., c. 9, §0901, (1)(a)), and at the Air Force Academy except First Classmen. Catalogue, 1962-1963, p. 110. And see Honeywell, Chaplains of the United States Army (1958); Jorgensen, The Service of Chaplains to Army Air Units, 1917-1946, Vol. I (1961).

[Footnote 2/3]
The New York Legislature follows the same procedure. See, e.g., Vol. 1, N.Y.Assembly Jour., 184th Sess., 1961, p. 8; Vol. 1, N.Y. Senate Jour., 184th Sess., 1961, p. 5.

[Footnote 2/4]
Rules of the Senate provide that each calendar day's session shall open with prayer. See Rule III, Senate Manual, S.Doc. No. 2, 87th Cong., 1st Sess. The same is true of the Rules of the House. See Rule VII, Rules of the House of Representatives, H.R.Doc. No. 459, 86th Cong., 2d Sess. The Chaplains of the Senate and of the House receive $8,810 annually. See 75 Stat. 320, 324

[Footnote 2/5]
It would, I assume, make no difference in the present case if a different prayer were said every day or if the ministers of the community rotated, each giving his own prayer. For some of the petitioners in the present case profess no religion.

The Pledge of Allegiance, like the prayer, recognizes the existence of a Supreme Being. Since 1954, it has contained the words "one Nation under God, indivisible, with liberty and justice for all." 36 U.S.C. § 17. The House Report recommending the addition of the words "under God" stated that those words in no way run contrary to the First Amendment, but recognize "only the guidance of God in our national affairs." H.R.Rep. No. 1693, 83d Cong., 2d Sess., p. 3. And see S.Rep. No. 1287, 83d Cong., 2d Sess. Senator Ferguson, who sponsored the measure in the Senate, pointed out that the words "In God We Trust" are over the entrance to the Senate Chamber. 100 Cong.Rec. 6348. He added:

"I have felt that the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic."

"It is true that, under the Constitution, no power is lodged anywhere to establish a religion . This is not an attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God, in whom we sincerely repose our trust. We know that America cannot be defended by guns, planes, and ships alone. Appropriations and expenditures for defense will be of value only if the God under whom we live believes that we are in the right. We should at all times recognize God's province over the lives of our people and over this great Nation."

Ibid. And see 100 Cong.Rec. 7757 et seq. for the debates in the House.

The Act of March 3, 1865, 13 Stat. 517, 518, authorized the phrase "In God We Trust" to be placed on coins. And see 17 Stat. 427. The first mandatory requirement for the use of that motto on coins was made by the Act of May 18, 1908, 35 Stat. 164. See H.R.Rep. No. 1106, 60th Cong., 1st Sess.; 42 Cong.Rec. 3384 et seq. The use of the motto on all currency and coins was directed by the Act of July 11, 1955, 69 Stat. 290. See H.R.Rep. No. 662, 84th Cong., 1st Sess.; S.Rep. No. 637, 84th Cong., 1st Sess. Moreover, by the Joint Resolution of July 30, 1956, our national motto was declared to be "In God We Trust." 70 Stat. 732. In reporting the Joint Resolution, the Senate Judiciary Committee stated:

"Further official recognition of this motto was given by the adoption of the Star-Spangled Banner as our national anthem. One stanza of our national anthem is as follows: "

" O, thus be it ever when freemen shall stand"
" Between their lov'd home and the war's desolation,"
" Blest with vict'ry and peace may the heav'n rescued land"
" Praise the power that hath made and preserved us a nation,"
" Then conquer we must when our cause it is just,"
" And this be our motto -- 'In God is our trust.'"
" And the Star-Spangled Banner in triumph shall wave"
" O'er the land of the free and the home of the brave."

"In view of these words in our national anthem, it is clear that 'In God we trust' has a strong claim as our national motto."

S.Rep. No. 2703, 84th Cong., 2d Sess., p. 2.

[Footnote 2/8]
Some communities have a Christmas tree purchased with the taxpayers' money. The tree is sometimes decorated with the words "Peace on earth, goodwill to men." At other times, the authorities draw from a different version of the Bible which says "Peace on earth to men of goodwill." Christmas, I suppose, is still a religious celebration, not merely a day put on the calendar for the benefit of merchants.

[Footnote 2/9]
Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amendment, provided in Article III that

"Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

In dissenting Justice Stewart noted that he could not see how a religion was established by saying the prayer.

With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an "official religion" is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation.

The Court's historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as in all areas of constitutional adjudication is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation," a phrase nowhere to be found in the Constitution.

Justice Stewart in dissenting asserted the significance of the historical record, which he also referenced extensively in a footnote.

[Footnote 3/3]

For example:

On April 30, 1789, President George Washington said:
". . . it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute with success the functions allotted to his charge. In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. . . ."
"* * * *"
"Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall take my present leave, but not without resorting once more to the benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend."

On March 4, 1797, President John Adams said:
"And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence."

On March 4, 1805, President Thomas Jefferson said:
". . . I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations."

On March 4, 1809, President James Madison said:
"But the source to which I look . . . is in . . . my fellow citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will under every difficulty be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future."

On March 4, 1865, President Abraham Lincoln said:
". . . Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.'"

"With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations."

On March 4, 1885, President Grover Cleveland said:
". . . And let us not trust to human effort alone, but humbly acknowledging the power and goodness of Almighty God, who presides over the destiny of nations, and who has at all times been revealed in our country's history, let us invoke His aid and His blessing upon our labors."

On March 5, 1917, President Woodrow Wilson said:
". . . I pray God I may be given the wisdom and the prudence to do my duty in the true spirit of this great people."

On March 4, 1933, President Franklin D. Roosevelt said:
"In this dedication of a Nation, we humbly ask the blessing of God. May He protect each and every one of us. May He guide me in the days to come."

On January 21, 1957, President Dwight D. Eisenhower said:
"Before all else, we seek, upon our common labor as a nation, the blessings of Almighty God. And the hopes in our hearts fashion the deepest prayers of our whole people."

On January 20, 1961, President John F. Kennedy said:
"The world is very different now. . . . And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe -- the belief that the rights of man come not from the generosity of the state, but from the hand of God."
"* * * *"
"With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that, here on earth, God's work must truly be our own."

Final Note

Engel raises the question once again of whether the Court has accurately, and even honestly, addressed the historical record. Does the Engel decision truly focus on the most relevant historical facts on how meaning should be found on the First Amendment? Is Justice Douglas, in his concurring view, refining the main issue in Establishment Clause cases or looking for a way to eliminate from relevance the mass of historical evidence on religious expression in America?

However, it is relevant that in Engel, the Court began by noting the significance of the Book of Common Prayer, which the King of England, as the head of the established church, tried to force on all churches, which set off the English Civil War. At this time religious issues were extensively debated in England, focusing on freedom of speech, of assembly, of conscience, and it was at this time that the English developed the theory of denominationalism, as a primary answer to the conflicts.

Those debates carried over to the American colonies, and Justice Black noted the significance of Roger Williams from that time, who was heavily involved in the discussion. Justice Black cited Williams' work, The Bloudy Tenet, of Persecution, for cause of Conscience. It appears that Williams actually was the first person to use the expression "separation of church and state" in America, more than 100 years before Thomas Jefferson. However, did he use the phrase as Justice Black indicated, or as an expression of denominationalism? The essence of denominationalism can be found in the slogan, "in a free and fair debate, the truth will win, as Jesus Christ is Lord."

Note at this link The Bloudy Tenet, of Persecution, for cause of Conscience, 1644, and note in particular the sixth tenet.

Sixthly, it is the will and command of God, that (since the coming of his Son the Lord Jesus) a permission of the most pagan, Jewish, Turkish, or anti-Christian consciences and worships, be granted to all men in all nations and countries, and that they are only to be fought against with that sword which is only (in soul matters) able to conquer, to wit, the sword of God's Spirit, the Word of God.

Perhaps, in considering Roger Williams, his letter to the Town of Providence, 1655, is just as relevant.

It hath fallen out sometimes, that both Papists and Protestants, Jews and Turks, may be embarked on one ship; upon whose supposal I affirm, that all liberty of conscience, that ever I pleaded for, turns upon these two hinges--that none of the Papists, Protestants, Jews or Turks, be forced by the ship's prayers or worship, nor compelled by their own particular prayers or worship, if they practice any.

Next we will consider Abington v. Schempp, 1963.

M. Paul Webb
Copyright

[Paul]

In Abington v. Schemp, 1963, the Court upheld that the First Amendment emphasizes the government must be completely neutral toward religion, which explains how the Establishment and Free Exercise Clauses overlap. The Court refused to consider as tenable, any opposition to its position on the separation of church and state, which had been long established, recognized, and consistently affirmed in prior decisions. The Court used Abington to review its case precedents and to let it be known that the principle of a complete separation of religious activity had been firmly and permanently validated as the law of the land.

The Court also addressed the issue of whether their position on the separation of church and state had established a religion of "secularism" in the schools, by noting that they did not agree that had occurred, and that one's education is not complete without a study of comparative religion or the history of religion. They noted in their opinion, that a person is better fitted to choose a religion after being inculcated with worldly knowledge and instructed in worldly wisdom.

At issue was whether a state law or school board from Pennsylvania could require passages of the bible to be read in public schools to begin the day or the recitation of the Lord's Prayer, even if students could be excused from participation.

Edward Schemp and his family were Unitarians, and he contended the literal reading of the bible was contrary to their religious beliefs. He did not want to ask that his children be excused from the exercises, believing it would adversely affect their relationship with teachers and classmates.

By expert testimony, the reading of the New Testament was noted as offensive to Jewish tradition, "practically blasphemous," sectarian in nature, bringing ridicule and scorn to Jews, potentially harmful psychologically to Jewish children, and causing a divisive force in the school. Another expert testified the bible was non-sectarian, but admitted excluding the New Testament would be sectarian. He also upheld the great moral, historical, and literary value of the bible, which was conceded by all parties. The trail court found the bible reading and prayer exercises preferred the Christian religion.

The Court also considered a companion case from Baltimore, on reading bible verses and saying the Lord's Prayer to begin the school day, from which students could be excused. This legal action was begun by atheists, who contended the exercises threatened their religious liberty, subjecting their freedom of conscience to the rule of the majority, rendering atheistic beliefs as sinister, alien and suspect, and promoting doubt over atheistic morality and good citizenship.

The Court, in setting out its decision, first acknowledged that religion has been closely identified with America's history and government --
1. in upholding the power of prayer;
2. in giving recognition that we are a religious people, who presuppose a Supreme Being;
3. in the fact that the founding fathers were devout believers;
4. as indicated by oaths of office ending with "so help me God;"
5. by each house of Congress opening sessions by prayer through its chaplains;
6. by the Supreme Court opening sessions invoking the grace of God;
7. in the manifestation of voluntary worship within the military;
8. by a recent census survey finding 64% of Americans have church membership, while 30% profess no religion.

However, the Court also acknowledged --
1. that religious freedom is strongly imbedded in our public and private life;
2. that our belief on religious liberty was deeply established in our heritage by the most telling experiences of religious persecution by our forbears;
3. that this religious liberty frequently was not realized by the colonists due to close ties with the Mother Country, but the views of Madison, Jefferson, and Roger Williams came to be incorporated in the Federal Constitution.

The Court then upheld the principle that the government is neutral on religion, protecting all, preferring none, disparaging none. The Court noted precedent cases for 20 years held that government preference of one religion over another was forbidden, which even Justice Jackson upheld during his dissent in Everson v. Board of Education, 1947. Other Justices in that case affirmed that the First Amendment created "a complete and permanent separation of the spheres of religious activity." Although this conclusion has been long established, recognized, and consistently affirmed, others question the history, logic, and efficacy of the position. However such contentions must be held as untenable, due to the consistent interpretation by the Court of cases on the issues.

The Court found in Cantwell v. Connecticut, 1940, that the interrelationship of the Establishment and Free Exercise Clauses forestalls compulsion on religious practices, while safeguarding the free exercise of a chosen religion. "Thus, the Amendment embraces two concepts -- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." And thus, the two clauses overlap to create a wholesome neutrality.

In Everson v. Board of Education, 1947, the Court found that the First Amendment requires the state to be neutral in relation to believers and non-believers. Justice Jackson noted in dissenting then, that public schools are organized on the premise that secular education can be isolated from religious teaching, and that the school can "inculcate" temporal knowledge, while maintaining strict neutrality. This approach is based on the assumption that "after the individual has been instructed in worldly wisdom, he will be better fitted to choose his religion." All four dissenters in Everson agreed, that our constitutional policy does not deny the value or necessity for religious training, teaching, or observance, but it does "deny that the state can undertake or sustain them in any form or degree. For this reason, the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two-fold protection, and, as the state cannot forbid, neither can it perform or aid in performing, the religious function. The dual prohibition makes that function altogether private."

In McCollum v. Board of Education, 1948, the Court was unable to accept the contention, that historically the First Amendment was intended to forbid only government preference of one religion over another.

In Zorach v. Clauson, 1952 the Court held -- "There cannot be the slightest doubt that the First Amendment reflects the philosophy that Church and State should be separated. And, so far as interference with the "free exercise of religion and an establishment of religion are concerned, the separation must be complete and unequivocal. (Thus, the Court upheld that the Establishment Clause must be favored over the Free-Exercise Clause).

In McGowan v. Maryland, 1961, and Torasco v. Watkins, 1961 the Court held -- "But the First Amendment in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a broad interpretation... in light of its history and the evils it was designed forever to suppress....

In Engel v. Vitale, 1962 the Court found a 22 word prayer and invocation of God's blessing in the classroom to be a religious activity. It was noted that even a trickling breach of neutrality may become a raging torrent, and in the words of James Madison, alarm must be taken at the first experiment of our liberties.

The Court then responded to the contention, that these cited decisions have established a religion of secularism.

It is insisted that, unless these religious exercises are permitted, a "religion of secularism" is established in the schools. We agree, of course, that the State may not establish a "religion of secularism" in the sense of affirmatively opposing or showing hostility to religion, thus "preferring those who believe in no religion over those who do believe." Zorach v. Clauson, supra, at 343 U. S. 314. We do not agree, however, that this decision in any sense has that effect. In addition, it might well be said that one's education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization... the State is firmly committed to a position of neutrality.

In concurring with the Court in Abington, Justice Brennan noted, in a very long and rambling opinion, that nothing in the Establishment Clause indicates it was meant only to prevent the setting up of an official church, and that a review of the nation's history regarding the First Amendment and religion has little value.

A too literal quest for the advice of the Founding Fathers upon the issues of these cases seems to me futile and misdirected for several reasons: first, on our precise problem, the historical record is, at best, ambiguous, and statements can readily be found to support either side of the proposition. The ambiguity of history is understandable if we recall the nature of the problems uppermost in the thinking of the statesmen who fashioned the religious guarantees; they were concerned with far more flagrant intrusions of government into the realm of religion than any that our century has witnessed. [Footnote 3/6] While it is clear to me that the Framers meant the Establishment Clause to prohibit more than the creation of an established federal church such as existed in England, I have no doubt that, in their preoccupation with the imminent question of established churches, they gave no distinct consideration to the particular question whether the clause also forbade devotional exercises in public institutions.

Second, the structure of American education has greatly changed since the First Amendment was adopted. In the context of our modern emphasis upon public education available to all citizens, any views of the eighteenth century as to whether the exercises at bar are an "establishment" offer little aid to decision. Education, as the Framers knew it, was in the main confined to private schools more often than not under strictly sectarian supervision. Only gradually did control of education pass largely to public officials. [Footnote 3/7] It would, therefore, hardly be significant if the fact was that the nearly universal devotional exercises in the schools of the young Republic did not provoke criticism; even today, religious ceremonies in church supported private schools are constitutionally unobjectionable.

Third, our religious composition makes us a vastly more diverse people than were our forefathers. They knew differences chiefly among Protestant sects. Today, the Nation is far more heterogeneous religiously, including as it does substantial minorities not only of Catholics and Jews but as well of those who worship according to no version of the Bible and those who worship no God at all. [Footnote 3/8]

See Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 495. In the 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 nonbelievers alike.

Whatever Jefferson or Madison would have thought of Bible reading or the recital of the Lord's Prayer in what few public schools existed in their day, our use of the history of their time must limit itself to broad purposes, not specific practices.

In concurring Justice Goldberg made reference to the great difficulty that is involved with trying to maintain religious neutrality.

The fullest realization of true religious liberty requires that government neither engage in nor compel religious practices, that it effect no favoritism among sects or between religion and nonreligion, and that it work deterrence of no religious belief. But devotion even to these simply stated objectives presents no easy course, for the unavoidable accommodations necessary to achieve the maximum enjoyment of each and all of them are often difficult of discernment. There is for me no simple and clear measure which by precise application can readily and invariably demark the permissible from the impermissible.

It is said, and I agree, that the attitude of government toward religion must be one of neutrality. But untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it.

Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God, and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion and, indeed, under certain circumstances, the First Amendment may require that it do so. And it seems clear to me from the opinions in the present and past cases that the Court would recognize the propriety of providing military chaplains and of the teaching about religion, as distinguished from the teaching of religion, in the public schools. The examples could readily be multiplied, for both the required and the permissible accommodations between state and church frame the relation as one free of hostility or favor and productive of religious and political harmony, but without undue involvement of one in the concerns or practices of the other. To be sure, the judgment in each case is a delicate one, but it must be made if we are to do loyal service as judges to the ultimate First Amendment objective of religious liberty.

In dissenting Justice Stewart notes the difficulties of trying to set a unifying standard for both the Establishment and Free Exercise Clauses under the concepts of a "separation of church and state" and "religious neutrality."

The First Amendment declares that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." It is, I think, a fallacious oversimplification to regard these two provisions as establishing a single constitutional standard of "separation of church and state," which can be mechanically applied in every case to delineate the required boundaries between government and religion. We err in the first place if we do not recognize, as a matter of history and as a matter of the imperatives of our free society, that religion and government must necessarily interact in countless ways. Secondly, the fact is that, while in many contexts the Establishment Clause and the Free Exercise Clause fully complement each other, there are areas in which a doctrinaire reading of the Establishment Clause leads to irreconcilable conflict with the Free Exercise Clause.

A single obvious example should suffice to make the point. Spending federal funds to employ chaplains for the armed forces might be said to violate the Establishment Clause. Yet a lonely soldier stationed at some faraway outpost could surely complain that a government which did not provide him the opportunity for pastoral guidance was affirmatively prohibiting the free exercise of his religion. And such examples could readily be multiplied. The short of the matter is simply that the two relevant clauses of the First Amendment cannot accurately be reflected in a sterile metaphor which by its very nature may distort, rather than illumine, the problems involved in a particular case. Cf. Sherbert v. Verner, post, p. 374 U. S. 398.

Final Note

Does banning all reference to religion in the schools create neutrality or promote secularism? Does teaching that always presents by necessity view points which exclude a belief in God actually establish a religion of secularism? Does such teaching make religion seem irrelevant?

In Abington, the Court emphasized that the principle of "separation of church and state" had become the law of the land, based on precedent cases. According to basic jurisprudence, courts must adhere to tenets of law established by prior cases, which is known by the Latin phrase Stare Decisis, or "to stand by that which is decided." Next, I will review further this doctrine and a famous Supreme Court case on religion, Holy Trinity v. United States, 1892.

M. Paul Webb
Copyright

[Paul]

Under the legal doctrine of Stare Decisis a court must adhere to principles of law established by prior cases. Consideration of issues identical in substance in subsequent cases must be bound by the authority of the precedent decision. The doctrine arises out of common law, in noting the necessity of having a stable, consistent, and predictable legal system, which may form a basis to regulate everyday conduct. The precedent decision is binding on the same court and lower courts. However, the Supreme Court can overturn a precedent decision, although it is a rare occurrence. If the Court finds inconsistency in prior cases, or that one was decided too hastily, or without a sufficient review due to new factual circumstances dealing with the same issue which arise in ensuing litigation, then the precedent case can be overruled, with a new principle of law established on the issue. Other factors which may be considered in overturning a case are its age and the extent of its relevance.

Adherence to the precedent applies only to the rule of law decided and the reasoning on the issues reviewed. A court does not have to stand by dicta, -- statements made by judges which go beyond the issues, in editorializing by the way, or touching on extraneous matter and specifics outside of the case.

Church of the Holy Trinity v. United States, 1892, was a case based on a Congressional Act of 1880 "to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States." At issue was whether the Act applied to a religious society hiring a pastor from England.

The Court found that the facts of the case did fall under the letter of the Act but not the intent. The motive and history of the Act were matters of common knowledge -- that it was meant to prohibit large capitalists from contracting with ignorant and servile foreign laborers to work for low wages, for the purpose of breaking down the domestic labor market. The Act was designed to remedy the evil of degrading the economic circumstances of cheap, unskilled, manual laborers. The Act was never intended to apply to a professional person, whose toil is that of the brain.

However, additionally the Court held the Act could not be held to have a purpose of action against religion, because "this is a religious people. This is historically true. From the discovery of the continent to the present hour...." Such historical affirmation can be noted according to --
1. the religious nature of the commission of Christopher Columbus;
2. the first colonial grant made of Sir Walter Raleigh in 1854;
3. the language of similar import in subsequent charters for the colony o Virginia;
4. the Mayflower Compact of 1620;
5. the Fundamental Orders of Connecticut instituted in 1638-39;
6. the Charter of Privileges granted by William Penn in Pennsylvania in 1701;
7. the recognition of the Divine in the Declaration of Independence;
8. the language of every constitution of the 44 states acknowledging God;
9. the familiar requisition that officers of our governments take an oath closing with the declaration, "so help me God."
10. provisions in state constitutions noting it is the right and duty of everyone to worship God under the legal protection of freedom of conscience.
11. the First Amendment of the Constitution of the United States;
12. that Constitution even excepting Sunday from the ten day period of time the executive has to determine if a bill of Congress should be approved or vetoed.

The Court went on to note, in concluding that the United States is a Christian nation, against which a law cannot have a purpose of action --

There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning. They affirm and reaffirm that this is a religious nation. These are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. While, because of a general recognition of this truth, the question has seldom been presented to the courts, yet we find that in Updegraph v. Commonwealth, 11 S. & R. 394, 400, it was decided that "Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; . . . not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men."

And in People v. Ruggles, 8 Johns. 290, 294-295, Chancellor Kent, the great commentator on American law, speaking as Chief Justice of the Supreme Court of New York, said: "The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice, and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but, even in respect to the obligations due to society, is a gross violation of decency and good order. . . . The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the Constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama, and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those impostors."

And in the famous case of @ 43 U. S. 198, this Court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: "It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania."

If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and its society, we find every where a clear recognition of the same truth. Among other matters, note the following: the form of oath universally prevailing, concluding with an appeal to the Almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, "In the name of God, amen;" the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing every where under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. In the face of all these, shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?

Suppose, in the Congress that passed this act, some member had offered a bill which in terms declared that if any Roman Catholic church in this country should contract with Cardinal Manning to come to this country and enter into its service as pastor and priest, or any Episcopal church should enter into a like contract with Canon Farrar, or any Baptist church should make similar arrangements with Rev. Mr. Spurgeon, or any Jewish synagogue with some eminent rabbi, such contract should be adjudged unlawful and void, and the church making it be subject to prosecution and punishment. Can it be believed that it would have received a minute of approving thought or a single vote? Yet it is contended that such was, in effect, the meaning of this statute. The construction invoked cannot be accepted as correct. It is a case where there was presented a definite evil, in view of which the legislature used general terms with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts under those circumstances to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.

Final Note

In Abington the Court emphasized that separation of church and state was the law of the land, as established by many precedent cases, consistently decided over 20 years. However, the Court never reviewed Holy Trinity? Why not? Obviously, simply ignoring a precedent case in setting out a new and different legal principle has to be considered legal malfeaseance -- wrongful conduct in the performance of professional duties. Malfeasance on the part of a judge also forms a basis to overturn a precedent case.

However, in Abington the Court noted that it had given recognition to the fact that we are a religious people, as reflected by our founding fathers, from the Mayflower Compact to the Constitution itself, and as manifested in many aspects of our society. Was the Court making a veiled reference to Holy Trinity in reviewing these facts on our religious history? The Court then went on to note how these facts were not relevant to the separation of church and state principle set out in Everson . Can this approach somehow constitute a technique for overturning Holy Trinity? Actually, sitting aside precedent by ignoring it or making probable, veiled or vague references to it is not a part of the doctrine of Stare Decisis. Then, why would a court resort to such a practice?

In the cases reviewed to this point, the Court noted that the First Amendment protection against the establishment of a religion or interference with its free exercise applied to actions by the states through the 14th Amendment, citing Cantwell v. Connecticut, 1940. At the time the Constitution was ratified, state laws upheld Christianity, and the First Amendment protected states against religious interference by the federal government. Next we will review how the Supreme Court changed the First Amendment, to serve as protection by the federal government against states on matters of religion.

M. Paul Webb
Copyright