by David Barton
The sanctions of the Divine law … cover the whole area of human action…. The laws which regulate our conduct are the laws of man and the laws of God.119 DEWITT CLINTON, INTRODUCED THE TWELFTH AMENDMENT; GOVERNOR OF NEW YORK; U. S. SENATOR
[T]he Ten Commandments … are the sum of the moral law.120 JOHN WITHERSPOON, SIGNER OF THE DECLARATION
Clearly, prominent Founders saw the Ten Commandments – and religious codes in general – as the foundation of American civil law. In fact, the belief was clear that public adherence to religious principles was the greatest source of security for civil government:
[T]he Holy Scriptures…. can alone secure to society, order and peace, and to our courts of justice and constitutions of government, purity, stability, and usefulness. In vain, without the Bible, we increase penal laws and draw entrenchments [protections] around our institutions.121 JAMES MCHENRY, SIGNER OF THE CONSTITUTION
Men, in a word, must necessarily be controlled either by a power within them or by a power without them; either by the Word of God or by the strong arm of man; either by the Bible or by the bayonet.122 ROBERT WINTHROP, SPEAKER OF THE U. S. HOUSE
Human legislators can undertake only to prescribe the actions of men; they acknowledge their inability to govern and direct the sentiments of the heart…. It is one of the greatest marks of Divine favor bestowed upon the children of Israel that the legislator [God] gave them rules not only of action, but for the government of the heart.123 JOHN QUINCY ADAMS
We seek to prevent in some measure the extension of the penal code by inspiring a salutary and conservative principle of virtue and of knowledge in an early age…. By general instruction we seek, as far as possible, to purify the whole moral atmosphere… and to turn the strong current of feeling and opinion, as well as the censures of the law and the denunciations of religion, against immorality and crime.124 DANIEL WEBSTER
Had I a voice that could be heard from New Hampshire to Georgia, it should be exerted in urging the necessity of disseminating virtue and knowledge among our citizens. On this subject, the policy of the eastern States is well worthy of imitation. The wise people of that extremity of the union never form a new township without making arrangements that secure to its inhabitants the instruction of youth and the public preaching of the gospel. Hence their children are early taught to know their rights and to respect themselves. They grow up good members of society and staunch defenders of their country’s cause.125 DAVID RAMSAY, REVOLUTIONARY SURGEON; MEMBER OF THE CONTINENTAL CONGRESS
Let it simply be asked, “Where is the security for property, for reputation, for life, if the sense of religious obligation desert… ?”126 GEORGE WASHINGTON
When the minds of the people in general are viciously disposed and unprincipled, and their conduct disorderly, a free government will be attended with greater confusions and evils more horrid than the wild, uncultivated state of nature. It can only be happy when the public principle and opinions are properly directed and their manners regulated. This is an influence beyond the reach of laws and punishments and can be claimed only by religion and education.127 ABRAHAM BALDWIN, SIGNER OF THE CONSTITUTION
The first point of justice … consists in piety; nothing certainly being so great a debt upon us as to render to the Creator and Preserver those acknowledgments which are due to Him for our being and the hourly protection He affords us.128 SAMUEL ADAMS
All the miseries and evils which men suffer from vice, crime, ambition, injustice, oppression, slavery and war, proceed from their despising or neglecting the precepts contained in the Bible.129 NOAH WEBSTER
The Court had declared unconstitutional the very embodiment of a system which the Founders had embraced as the basis of civilized society. Justice Rehnquist summarized the illogical position taken by the Court:
The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin…. The words of Justice Jackson, concurring in McCollum v. Board of Education … merit quotation at length: “I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff’s completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction…. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences…. One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared.”130
The Court’s decision in this case not only struck down a passive, non-coercive display, it also reflected the hostility which has become characteristic of the Court’s decisions on these issues.
Wallace v. Jaffree, 1985
This case was the challenge of an Alabama law which authorized a one-minute period of silence for students. When the case reached the federal court of appeals, although the court found that a one-minute period of silence for meditation was constitutional, it nevertheless struck down the law. The Supreme Court upheld that decision. Why? As the court of appeals had explained – and as the Supreme Court had repeated:
It is not the activity itself that concerns us; it is the purpose of the activity that we shall scrutinize.131
In seeking “the purpose of the activity,” the court had “discovered”:
The “prime sponsor” of the bill … explained that the bill was an “effort to return voluntary prayer to our public schools … ”. He intended to provide children the opportunity of sharing in their spiritual heritage of Alabama and of this country.132
Consequently, based on this “discovery,” the court struck down the voluntary silent activity and declared the statute …
… invalid because the sole purpose … was “an effort on the part of the State of Alabama to encourage a religious activity”…. [It] is a law respecting the establishment of religion within the meaning of the First Amendment.133
Chief Justice Warren Burger was much disturbed by the Supreme Court’s affirmation of this decision. For example, he was troubled by the judicial “discovery” which had resulted in the ruling:
Curiously, the opinions do not mention that all of the sponsor’s statements relied upon – including the statement “inserted” into the Senate Journal – were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the appellees concede … there is not a shred of evidence that the legislature as a whole shared the sponsor’s motive or that a majority in either house was even aware of the sponsor’s view of the bill when it was passed. The sole relevance of the sponsor’s statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that postenactment statements by individual legislators are relevant in determining the constitutionality of legislation.134 (emphasis added)
The Alabama State legislature had simply permitted a voluntary, silent activity; the Court concluded that this was the equivalent of encouraging a religious activity and was thus an impermissible establishment of religion. Ironically, Alabama came under the provisions of the U. S. territorial ordinance which had declared 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.135 (emphasis added)
The Founders thought it proper for the government to promote religious activities. In fact, they frequently encouraged such activities. For example (emphasis added in each quote):
Sensible of the importance of Christian piety and virtue to the order and happiness of a state, I cannot but earnestly commend to you every measure for their support and encouragement…. [T]he very existence of the republics … depend much upon the public institutions of religion.136 JOHN HANCOC
K
[A] free government…. can only be happy when the public principle and opinions are properly directed…. by religion and education. It should therefore be among the first objects of those who wish well to the national prosperity to encourage and support the principles of religion and morality.137 ABRAHAM BALDWIN, SIGNER OF THE CONSTITUTION
The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues; – these never can be a matter of indifference in any well-ordered community. It is indeed difficult to conceive how any civilized society can well exist without them.138 JOSEPH STORY, U. S. SUPREME COURT JUSTICE; FATHER OF AMERICAN JURISPRUDENCE
[T]o promote true religion is the best and most effectual way of making a virtuous and regular people. Love to God and love to man is the substance of religion; when these prevail, civil laws will have little to do…. The magistrate (or ruling part of any society) ought to encourage piety … [and] make it an object of public esteem.139 Those who are vested with civil authority ought … to promote religion and good morals among all under their government.140 JOHN WITHERSPOON, SIGNER OF THE DECLARATION
I had the honor of being one among many who framed that Constitution…. In order effectually to accomplish these great ends, it is incumbent upon us to begin wisely and to proceed in the fear of God; and it is especially the duty of those who bear rule to promote and encourage piety [respect for God] and virtue and to discountenance every degree of vice and immorality.141 HENRY LAURENS, PRESIDENT OF CONTINENTAL CONGRESS; U. S. DIPLOMAT; SELECTED AS DELEGATE TO THE CONSTITUTIONAL CONVENTION
[T]he primary objects of government, are peace, order, and prosperity of society…. To the promotion of these objects, particularly in a republican government, good morals are essential. Institutions for the promotion of good morals are therefore objects of legislative provision and support and among these … religious institutions are eminently useful and important.142 OLIVER ELLSWORTH, CONSTITUTIONAL CONVENTION; CHIEF JUSTICE U. S. SUPREME COURT
[It is] the duty of all wise, free, and virtuous governments to countenance and encourage virtue and religion.143 JOHN JAY, ORIGINAL CHIEF JUSTICE U. S. SUPREME COURT
Since the Founders who prohibited an establishment of religion also encouraged religion, it is clear – contrary to the Court’s assertion in this case – that the Founders did not equate encouraging or endorsing religion as an establishment of it.
Chief Justice Burger struck out at the Court’s new anti-endorsement criterion:
It makes no sense to say that Alabama has “endorsed prayer” by merely enacting a new statute “to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence.” … To suggest that a moment of silence statute that includes the word “prayer” unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion…. The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty…. It accommodates the purely private, voluntary religious choices of the individual pupils who wish to pray while at the same time creating a time for nonreligious reflection for those who do not choose to pray…. The statute “endorses” only the view that the religious observances of others should be tolerated.144
Since this decision represented yet another in the Court’s recent series of historically untenable rulings, Justice William Rehnquist undertook a review of the basic history of the First Amendment. (His dissent in this case is recommended reading as one of the best historical overviews of the First Amendment available from any source.) After his lengthy history lesson, he concluded:
There is simply no historical foundation for the proposition that the Framers intended to build the “wall of separation” that was constitutionalized in Everson…. But the greatest injury of the “wall” notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights … [N]o amount of repetition of historical errors in judicial opinions can make the errors true. The “wall of separation between church and State” is a metaphor based on bad history…. It should be frankly and explicitly abandoned…. Our perception has been clouded not by the Constitution but by the mists of an unnecessary metaphor.145
Rehnquist then noted with acerbity:
It would come as much of a shock to those who drafted the Bill of Rights, as it will to a large number of thoughtful Americans today, to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from “endorsing” prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.146
The Jaffree case was a ruling against a voluntary, and even a silent religious activity; further, it codified the “endorsement test” as the new replacement for the First Amendment prohibition against “establishment.”
Allegheny County v. Pittsburgh ACLU, 1989
At the seat of government in Pittsburgh, Pennsylvania, many holiday symbols were displayed during the Christmas season – including a Christmas tree, a menorah (a multibranched candlestick used during Jewish celebrations), a Santa, a crèche (nativity scene), a patriotic sign, floral arrangements, etc. A legal challenge was lodged against the display of the menorah and the crèche.
Although this was the first case in which the Supreme Court had considered a menorah, only five years earlier in Lynch v. Donnelly it had upheld the use of a crèche because:
[T]he [crèche] display is … to celebrate the Holiday recognized by Congress and national tradition and to depict the origins of that Holiday…. [T]he crèche … is no more an advancement or endorsement of religion than the congressional and executive recognition of the origins of Christmas…. It would be ironic if … the crèche in the display, as part of a celebration of an event acknowledged in the Western World for 20 centuries, and in this country by the people, the Executive Branch, Congress, and the courts for 2 centuries, would so “taint” the exhibition as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol … would be an overreaction contrary to this Nation’s history.147
Yet in this case, the Court reversed that ruling, declaring:
The display of a crèche – a representation of the nativity of Jesus … conveys an endorsement of religion, in violation of the establishment of religion clause of the Federal Constitution’s First Amendment and therefore must be permanently enjoined [prohibited].148
Ironically, when the Court upheld the use of a crèche in Lynch, it had been government-owned; yet the crèche forbidden in this case had been privately-owned. This irony did not escape the notice of Justice Anthony Kennedy in his dissent:
Nor can I comprehend why it should be that placement of a government-owned crèche on private land is lawful while placement of a privately-owned crèche on public land is not. If anything, I should have thought government ownership of a religious symbol presented the more difficult question under the Establishment Clause, but as Lynch resolved that question to sustain the government action, the sponsorship here ought to be all the easier to sustain.149
Kennedy was dumbfounded that the Court was striking down a completely passive religious expression:
There is no suggestion here that the government’s power to coerce has been used to further the interests of Christianity or Judaism in any way. No one was compelled to observe or participate in any religious ceremony or activ
ity…. The crèche and the menorah are purely passive symbols of religious holidays. Passersby who disagree with the message conveyed by these displays are free to ignore them, or even to turn their backs, just as they are free to do when they disagree with any other form of government speech.150
A major factor in the Court’s order to remove the crèche was that it had been located in a portion of the courthouse from which Santa and the reindeer were not visible. Very simply, there had been nothing close enough to the crèche to secularize it. This prompted Justice Kennedy to observe:
[T]he majority embraces a jurisprudence of minutiae [the trivial]…. This test could provide workable guidance to the lower courts, if ever, only … [by] using little more than intuition and a tape measure…. “It would be appalling to conduct litigation under the Establishment Clause as if it were a trademark case, with…. witnesses testifying they were offended – but would have been less so were the crèche five feet closer to the jumbo candy cane….” This Court is ill-equipped to sit as a national theology board, and I question both the wisdom and the constitutionality of its doing so.151
The Court’s decision repudiated both historical precedent and even its own recent case law. It also provided the Court another opportunity to continue its rewriting of the purpose of the First Amendment. Hence, the Court declared:
[T]he Constitution mandates that the government remain secular.152
Obviously, the Founding Fathers disagreed. Notice: