The Religious Clauses

The 1st Amendment to the Constitution, ratified on December 15, 1791, begins with, and decrees that, the

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

Religion being an earthly organization designed for people to practice their faith – their personal relationship with their creator – within whose walls they could discover their faith, discuss their faith, enhance their faith, expand their faith, share their faith and, in a myriad of other ways, grow closer to their creator to more thoroughly understand the meaning of their creation and the purpose of their lives.

Organized religions, being human creations, were flawed – and remain so – and frequently adopted the worst of human tendencies, chief among them being conquest – of other religions. It was this tension in the Northern Europe of the Middle Ages, and even the Enlightenment, that created the atmosphere in which the American experiment was born.

 Let me begin this section with a broad statement about organized religion and the United States of America. Anyone, let me repeat, anyone …who proposes that the vast, vast majority of the founding generation, including the drafters of the Declaration and the Constitution and the People who ratified it, did not believe in some incarnation of the Judeo/Christian Creator and the hand of God being involved somehow in the functioning of the Universe, is delusional at best and just plain intellectually dishonest at worst. They may have not been overly religious – their relationship with their fellow “Americans” was more important than their relationship with the words of the Bible – but, their entire raison d’etre, from the mid-1760s on, was to seek the bestowal of all natural rights – those inherently human rights that emanate directly from the Creator – upon their fellow man even at the cost of their own lives. “No greater love…”.

This nation was founded by and on the faith of Judeo-Christian believers – not atheists – believers in a sole Creator and the logical moral and ethical standards handed down through the ages in the Creator’s name, primarily by Jews and Christians. A large majority of the earliest colonial settlers from Northern Europe, the immediate ancestors of the Founding generation, were fleeing religious persecution in order to find the freedom to practice their faith relationship with their Creator without interference from any outside entity – be it government, secular institution or other religious apparatus. So important was this desire that it was given priority of place in the Bill of Rights demanded by the People as the price for ratification of the Constitution.

The Constitutional foundation in the Judeo-Christian ethic gave our “…society a certain, non-ambiguous moral pattern …a sense of divine providence (in our very existence as a nation), a spirit of public service and a personal modesty about our successes. It disciplined our free-market capitalism. Economically, it induced people to save their money for the proverbial “rainy-day”, to put off gratifications and to disdain irrational exuberance.” (People should have listened to Dr. Alan Greenspan in 1996).

At the heart of most communities was the church, in the center of the town square and at the heart of the calendar was the Sabbath – a period of intense religious and “secular” community activity that lasted all day long. “Congregationalists (Puritans), Anglicans, French Huguenots, Catholics, Jews, Dutch Calvinists, German Reformed pietists, Scottish Presbyterians, Baptists, Lutherans, Unitarians, Jews, Quakers, Deists and other denominations set the moral standard on the continent.  Indeed, Pennsylvania’s first constitution stated that all who believed in God and agreed to live peacefully under the civil government would “in no way be molested or prejudiced for their religious persuasion of practice.”  

By the time of the Revolution, Protestant rationalism was the dominant religious force among the leaders of most of the colonies: “The similarity of belief among the educated gentry in all colonies is notable. . .. [There] seem to be evidence that some form of rationalism – Unitarian, deist, or otherwise – was often present in the religion of gentlemen leaders by the late colonial period.” Whether Unitarian, deist, or even Anglican/Congregational, rationalism focused on the ethical aspects of religion.

The political edge of this argument was that no human institution – religious or civil – could claim exclusive divine authority. At the core of this rational belief was the idea that God had endowed humans with reason so that they could tell the difference between right and wrong. Knowing the difference also meant that humans made free choices to sin or behave morally. The radicalization of this position led many rational dissenters to argue that intervention in human decisions by civil authorities undermined the special covenant between God and humankind. Many therefore advocated for the independence of the institutions of the church and the state.

Taken further, the logic of these arguments led them to dismiss the divine authority claimed by the English kings, as well as the blind obedience compelled by such authority. Thus, by the 1760s, they mounted a two-pronged attack on England: first, for its desire to intervene in the colonies’ religious life and, second, for its claim that the king ruled over the colonies by divine inspiration. Once the link to divine authority was broken, revolutionaries turned to Locke, Milton, and others, concluding that a government that abused its power and hurt the interests of its subjects was tyrannical and as such deserved to be replaced.” Keep this in mind for its revelance to our current political circumstances.

 One of the most influential founders, Thomas Jefferson of Virginia, echoing the language of the founder of the first Baptist church in America, Roger Williams – who had written in 1644 of “…[a] hedge or wall of separation between the garden of the church and the wilderness of the world…” Jefferson wrote;

 “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.”

 Organized church denominations and the faith in the Judeo-Christian God that they nurtured in the People was very much a part of the master plan for the United States and occupied a place of precedence and priority over any government entity.

This place of primacy is no accident. Faith, and the churches that nourished it, occupied an exalted place in the hierarchy of philosophies understood and practiced by the Founders. They were not about to establish politics above faith – and they didn’t.

Consider that “Congress shall make no law … prohibiting the free exercise thereof (religion)” is the very essence of a separation of politics and religion – each a philosophy, not an institution – with apologies to both Mr. Williams and Mr. Jefferson. It means, in the simplest of language, that the government shall have no say in the free exercise of one’s faith – either in the public arena or in private or anywhere else – there is no modifier included. If a belief or activity is legitimately religious based, it is off limits to government interests or regulation. No means no!

The problem is that the PLDC has a “politically correct” definition of the concept of a “separation of church and state”. Simply put, there is no need to enforce secular (state) laws with which we do not agree but we must enforce all laws concerning religion – notwithstanding that any law that concerns religion is unconstitutional and illegitimate on its face. This belief is, of course, irreconcilable with Western Culture – more like separate-but-equal. Sound familiar?

Now that we have dispensed with that issue for the time being, (It will be discussed in more detail later) we can proceed to the essential question in this section – What is religion? What is politics? – so that we can keep them truly separate – as the Constitution commands. Why is this important? Here’s why.

Consider the quandary presented by the late founder of modern (I use the term loosely) Islam, theGrand Ayatollah Ruhollah Khomeini of the Islamic Republic of Iran.

“When anyone studies a little or pays a little attention to the rules of Islamic government, Islamic politics, Islamic society and Islamic economy, he will realize that Islam is a very political religion. Anyone who will say that religion is separate from politics is a fool; he does not know Islam or politics.”

 Could any statement be more at odds with our Constitution than this one – which commands a confluence between church (Islam, and no other) and state?

So, off we go. What is Religious Freedom? Isaac Backus, a leading Baptist preacher during the American Revolutionary era observed in 1773 that “… [r]eligious matters are to be separated from the jurisdiction of the state, not because they are beneath the interests of the state but, quite to the contrary, because they are too high and holy and thus are beyond the competence of the state.”

“Based on the unique nature of religion, the Founding Fathers, in drafting the First Amendment, wisely treated religion and religious beliefs differently from other forms of expression to ensure the protection of religious freedom. To do so, they placed special restrictions on religion [with respect to its influence on the state], but more importantly, they also provided religion with special Constitutional protections. These special restrictions and protections are expressed in the first sixteen words of the First Amendment and they are called the Establishment Clause and the Free Exercise Clause.”

“Taken together these clauses are often referred to as the Constitution’s Religion Clauses. Each of these clauses separates religion and government in ways that protect individual religious freedom and ensures the integrity of both religion and government. The Establishment Clause prohibits a joining between government and religion, such as no official state religion, no preference by government of one faith over another or religion generally, no taxes to support religion, and no government support for (or opposition to) religious worship or practice.

The Free Exercise Clause provides each individual with the right to freely practice the religion of his or her choosing. It ensures the autonomy of houses of worship and other religious institutions from government in matters of internal governance and religious law. It prohibits government from enacting laws that specifically target religion. Importantly, it empowers the government to provide houses of worship with special accommodations and exemptions from civil law that might otherwise interfere with religious worship or practice.”

The prevailing legal interpretation of the 1st Amendment’s Establishment Clause is that it prohibits the government from making any law “respecting an establishment of religion.” This clause not only forbids the government from establishing an official religion, but also prohibits government actions that unduly favor one religion over another. It also prohibits the government from unduly preferring religion over non-religion, or non-religion (atheism, among other groups) over religion.

It is this last sentence that requires some amplification. If the Establishment Clause prohibits the government from making any law “respecting an establishment of religion” anywhere, it must also extend that prohibition to the disestablishment of religion anywhere since each act has the same effect – interfering with the individuals’ right to practice their religion. In other words, the Establishment Clause protects the freedom of religion not the freedom from religion.

The Free Exercise Clause reserves the right of American citizens to accept any religious belief and engage in religious rituals. The wording in the free-exercise clauses of State constitutions that religious “[o]pinion, expression of opinion, and practice were all expressly protected” by the Free Exercise Clause. The clause protects not just religious beliefs but actions taken on behalf of those beliefs and protects against actions taken against those beliefs.

More importantly, the wording of State constitutions [demanded by the federal government as a requirement for statehood] suggests that “free exercise envisions religiously compelled exemptions from at least some generally applicable laws.” The Free Exercise Clause not only protects religious belief and expression; it also seems to allow for violation (exemption) of laws, as long as that violation is made for religious reasons.  In the terms of free market theory, the Free Exercise Clause promotes a free religious market by precluding the “oppression of regulation” of religious activities by either majority or minority sects.

Finally, the question; Does the Establishment Clause conflict with the Free Exercise Clause in that the exercise of one would violate the other? In a word, no. The “generally applicable laws” argument is fallacious in that these general laws are not specifically applicable to religious issues by invocation of the “free exercise” clause itself. The word “violation” is not germane – they are “exempt” for religious reasons. The 14th Amendment applies the Federal requirement to the States.

The United States Constitution also contains a provision called the “Religious Test Clause.” It prohibits any kind of religious test for citizens to hold elected public office, or to be a public official or employee. Found in Article VI of the Constitution, the Clause states: “[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

So for example, the government cannot Constitutionally require a citizen to subscribe to particular religious beliefs in order to hold public office. It also cannot disqualify a citizen from holding public office because he or she is an adherent to a specific faith or holds particular religious beliefs. The Establishment, Free Exercise and Religious Test Clauses all complement one other to guard against “[a] union of government and religion,” which in the words of distinguished U.S. Supreme Court Justice Hugo Black, “…tends to destroy government and to degrade religion.” (Engel v. Vitale)

Nine of the original thirteen States had an “official” or “established” church and religion, which were prerequisites to citizenship. The 1st Amendment did not separate church and state. The 1st Amendment was ratified to prevent the Federal government from establishing a religion. As proof that the 1st Amendment didn’t prohibit state religions, one need only know that the States continued their “official” religions long after they ratified the Bill of Rights.  Massachusetts – in 1828 – was the last state to disestablish its religion, thirty-seven years AFTER the 1st Amendment allegedly separated church from state – and two years after the deaths of founders Thomas Jefferson and native son, John Adams.

Founder and fourth President James Madison’s original proposal for a bill of rights provision concerning religion read: ”The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretense, infringed.” 

 Here are some other statements from America’s founders who understood that freedoms are based on Judeo-Christian principles:

 1756, John Adams, America’s second President [with whom I disagree on this point]: “Suppose a nation in some distant region should take the Bible for their only Law Book, and every member should regulate his conduct by the precepts here exhibited… What a paradise would this region be!”

 1781, Thomas Jefferson: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift of God? That they are not to be violated but with His wrath? Indeed, I tremble for my country when I reflect that God is just; that His justice cannot sleep forever.”

 July 12, 1804, Alexander Hamilton’s last dying words after Vice President Aaron Burr shot him: “I have a tender reliance on the mercy of the Almighty; through the merits of the Lord Jesus Christ. I am a sinner; I look to Him for mercy; pray for me.”

 1821, Daniel Webster: “If we abide by the principles taught in the Bible, our country will go on prospering and to prosper; but if we and our posterity neglect its instructions and authority, no man can tell how sudden a catastrophe may overwhelm us and bury all our glory in profound obscurity.” [We are, unfortunately, well down that path]

 Dr. Benjamin Rush, signer of the Declaration of Independence: “The only foundation for … a republic is to be laid in Religion. Without this there can be no virtue, and without virtue there can be no liberty, and liberty is the object and life of all republican governments.”

 If the U.S. Constitution was to say that the church and state were separate (which it does not), then how would you explain these statements:

 George Washington: “Do not let anyone claim to be a true American, do not let them claim the tribute of American Patriotism if they ever attempt to remove religion from politics. If they do that, they cannot be called true Americans.” [He is, of course, not referring a particular religion, but to the concept of religion as a moral/ethical, faith-based belief system.]

 Patrick Henry: “It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians; not on religions, but on the gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.”

 First Supreme Court Chief Justice John Jay: “Providence has given to our people the choice of our rulers and it is the duty, as well as the privilege and interest, of a Christian nation to select and prefer Christians for its rulers.”

 James Madison, 1788: “We have staked the whole future of American civilization, not upon the power of government, far from it. We have staked the future … upon the capacity of each and all of us to govern ourselves, to sustain ourselves, according to the Ten Commandments of God.”

 George Washington, October 3, 1789 proclaiming a National Day of Prayer: “Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits and humbly to implore His protection, aid and favors …”

 Founder George Mason, 1789: “All human laws which contradict His laws, we are bound in conscience to disobey.

 The Supreme Court of Maryland in 1799: “By our form of Government, the Christian religion is the established religion” (A confession of a government-established religion, eight years AFTER the 1st Amendment supposedly separated church from state.)

 John Quincy Adams, 1821: “The highest glory of the American Revolution was this: it connected in one indissoluble bond, the principles of Christianity with the principles of civil government, from the day of the Declaration … they were bound by the laws of God, which they all, and by the laws of the Gospel, which they nearly all acknowledged as the rules of their conduct.

 Noah Webster: “The moral principles and precepts contained in the Scripture ought to form the basis of all our civil constitutions and laws. All the miseries and evil men suffer from vice, crime, ambition, injustice, oppression, slavery, and war, proceed from their despising or neglecting the precepts contained in the Bible.”

 President Andrew Jackson, 1845: “The Bible is the rock on which our Republic rests.” (Note the frequent reference to the Bible, while there is nary a reference to the Koran – with which the founders were also familiar.)

 The US Supreme Court in 1892 ( 102 years AFTER its founding) in the case; Church of the Holy Trinity vs. the U.S.: “Our law and our institutions must be necessarily based upon and embody the teachings of the Redeemer of mankind. It is impossible that it should be otherwise, and in this sense and to this extent our civilization and our institutions are emphatically Christian … This is a religious people. This is historically true. From the discovery of this continent to the present hour, there is a single voice making this affirmation … We find everywhere a clear recognition of the same truth … THIS IS A CHRISTIAN NATION.”

That’s right! More than one-hundred and one years after the 1st Amendment supposedly separated church from state, the Supreme Court said the U.S. is a Christian nation.

 US Supreme Court Justice Joseph Story, in 1851: “… the universal sentiment in America was, that Christianity ought to receive encouragement by the state. … any attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference would have created universal disapprobation, if not universal indignation.” [THAT’S RIGHT! SEPARATION OF CHURCH AND STATE CREATES UNIVERSAL INDIGNATION.]

 As the Declaration of Independence was being signed on July 4, 1776, Samuel Adams said: “We have this day restored the sovereign to whom all men ought to be obedient. He reigns in heaven, and from the rising to the setting of the sun let his kingdom come.”

 Joseph Story (1779–1845), a magisterial Associate Justice of the  Supreme Court of the United States from 1811 to 1845,thought that:

 “…the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well-being of the state, and indispensable to the administration of civil justice”, looked upon the prohibition simply as an exclusion from the Federal government of all power to act upon the subject. ”The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion.

In some of the states, Episcopalians constituted the predominant sect; in others Presbyterians; in others, Congregationalists; in others, Quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy about ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power.

But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition [as we have seen] of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.” 

”Probably,” Story also wrote, ”at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.”

The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment. It is well to recall that “’…the purpose [of the religion clauses] was to state an objective, not to write a statute.” 

Next time: The legal case for religious liberty, not politico-religious liberty.



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