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The Religion Clauses of the First Amendment in Historical Context
Reverend Peter M. J. Stravinskas, Ph.D., S.T.D
A lecture delivered on 22 June 2012 for the Fortnight of Freedom held at the Notre Dame Retreat Center in Canandaigua, New York.
Blessed John XXIII famously remarked in his encyclical Pacem in Terris that those who wish to defend the rights of others first must vindicate their own rights. I would offer a codicil to that wise statement. People must know their rights before they can ever vindicate them for themselves or for others. With that in mind, I would like to offer a mini-course in First Amendment issues which, for some, will be an introduction and, for others, a refresher. Either way, the current climate demands accurate information, which can then – and only then – lead to appropriate action.
The general tenor of contributors to this area of concern has been well summarized by this 1976 editorial comment in America:
Two thousand years from now a team of archaeologists from an outer-space colony may excavate a kitchen midden on the site of the United States Supreme Court building amid the ruins of what had once been the city of Washington, D.C. If they come upon a collection of opinions in cases decided under the first section of the First Amendment, will these diggers be able to reconstruct that clause if its text is nowhere given in the bale of documents? Not in a millennium. From details of litigation dealing, for instance, with bus rides for children in nonpublic schools or with the refusal of Jehovah’s Witnesses to salute a classroom flag, those busy scholars of the future are not likely to distill these sixteen words: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. 1
This is not an easy topic to study because it is a subject that is highly charged in the emotional domain. It is difficult to find dispassionate discussions, even among scholars, because even they have intense feelings and strong opinions on this matter. The methodology of this talk will be to examine the issue and provide background from three vantage points by referring to the relevant literature. The first consideration is an attempt to exegete the First Amendment in terms of its language and intent. The second phase of the analysis centers on the derivative doctrine of separation of Church and State. A third matter of interest is to determine the range of opinion on how the Court should handle conflicts between the “free exercise” and “establishment” clauses of the First Amendment.
The Religion Clauses of the First Amendment
The first question to answer is just what is meant by the expression “establishment of religion”? In many of the Supreme Court decisions, “establishment of religion” has been equated with “religious establishment.” If the Court has been correct in asserting that the two terms are synonymous, then the discussion would, of necessity, die. However, many legal scholars take serious exception to this interpretation.
Kenealy declared that “an establishment of religion means the official erection of one religion into a preferred position by law.”2 In a similar vein, Coleman maintained that the establishment clause of the First Amendment “reflects the feeling formed in this country that one of the important things to avoid was a situation in which one religion became a government-sponsored religion.”3 In the McCollum case,4 which dealt with religious instruction in public schools, the justices rejected these explanations of establishment. J. N. O’Neill, however, observed:
They based their case on the claim that their new doctrine is what the First Amendment means and was designed to mean by Jefferson, Madison and the other Founding Fathers. The validity of the Supreme Court position in the McCollum case rests in toto on the validity of this claim. My position is that this claim is given all the respect to which it is entitled when it is labeled semantic and historical nonsense.5
An examination of the Congressional Record tended to give credibility to the position taken by O’Neill. The various versions proposed and debated gave an inkling of the rationale behind the amendment:
Committee: No religion shall be established by law.
House: Congress shall make no law establishing religion.
Senate: Congress shall make no law establishing articles of faith or a mode of worship.
Madison: . . . nor shall any national religion be established.
The same document also revealed Madison’s personal understanding of the First Amendment’s meaning: “That Congress should not establish a religion, and enforce the legal observation of it by law, or compel men to worship God in any manner contrary to their conscience.”6
Basing his opinion on these proposals and commentaries on the First Amendment and the method of ascertaining intent prescribed by the justices in the McCollum case, Emerson remarked that “the meaning and significance of the First Amendment to the people of the new nation is to be found in the existing law of England and the colonies.”7 That situation, of course, was one of having a national church.
Mark DeWolfe Howe has suggested that “among the sacred traditions of American constitutional law is one which tells us that the principal responsibility of judges is to carry out the ‘intention’ of those who framed the constitution.”8 According to Joseph Sobran, the “Framers were opening the way to multiple religious influences on the state, rather than prohibiting them all. The point was to prevent one church from having an automatic advantage over the others. This should increase, not diminish the influence of faith on our public life.”9
No discussion of the history of the First Amendment would be complete without reference to Thomas Jefferson, usually offered as the most negative to friendly relations between Church and State. For this reason Senator Packwood, during the tuition tax credit debate of the 95th Congress, presented what he considered to be evidence of Jefferson’s support of his proposed legislation. He said:
Let the record show that when Thomas Jefferson was president, he submitted to the senate in 1803 a treaty concluded with the Kaskaskia Indians, and a part of that treaty reads as follows:
And whereas the greater part of said tribe have been baptized and received into the Catholic Church to which they are attached, the United States will give annually, for seven years one hundred dollars toward the support of a priest of that religion, who will engage to perform for said tribe the duties of his office, and also to instruct as many of their children as possible, in the rudiments of literature, and the United States will further give the sum of three hundred dollars, to assist the said tribe in the erection of a church.
Mr. President, those are not the writings and that is not the treaty of a man who says that you cannot use public funds for private sectarian education.10
These facts become all the more interesting when one realizes that Jefferson has been described by his authoritative biographer as “anticlerical and antidoctrinal,”11 to the point of being “obsessive”12 in this regard.
However, not everyone agrees that attempting to determine the original intent of the framers is a valid procedure. Justice Hugo Black noted that “the textual method, in some cases, forces us to blur the focus and talk evasively.”13 Paul Kauper has argued that there are “difficulties in using Madison and Jefferson as authoritative interpreters of the . . . First Amendment.”14 Leo Pfeffer has added his belief that “this sanctification for all ages of a specific desire of the original framers smacks of ancestor worship.”15
Nor has the Supreme Court itself been helpful on this score in its vacillation from case to case between these two methodologies of interpretation. In Quick Bear v. Leupp, which dealt with the use of Indian funds for parochial schools, the justices ruled that the First Amendment of itself was insufficient to outlaw continuance of the practice:
Some reference is made to the Constitution, in respect to this contract with the Board of Catholic Indian missions. It is not contended that it is unconstitutional, and it could not be. But it is contended that the spirit of the Constitution requires that the declaration of policy that the government “shall make no appropriation whatever for education in any sectarian schools” should be treated as applicable.16
Similarly, Elwyn Smith observed that in the Everson case, the Court “found it impossible to answer the specific question put to it on the basis of the First Amendment alone, but made its judgment with the aid of the concept of separation of Church and State.”17 Furthermore, Paul Freund observed that “the accuracy and sufficiency of Mr. Justice Rutledge’s examination of history which produced the First Amendment have been questioned by scholars, theologians, polemicists and judges.”18 In seconding that charge, Corwin noted that “the question arises, how far a court is entitled to indulge in bad history and bad logic without having its good faith challenged.”19
Still another question to ask is whether the First Amendment is applicable to the states at all. This question may surprise some observers, but a close and careful reading of the Amendment, along with a knowledge of colonial history, reveals a great deal. First, it is Congress that is to make no law respecting an establishment of religion, thus leaving the matter open at the state level. Therefore, many states continued their established churches long after ratification of the First Amendment. Thus Katz remarked that “this considerably reduces the force of the textual argument for the broad ‘no aid’ interpretation.”20
Constitutional experts are in general agreement that the First Amendment has been made applicable to the several states by judicial incorporation.21 However, some legal scholars have suggested that this process was not a wholesale incorporation for the states. Katz has asserted that “the prevailing view is that the Bill of Rights is imposed on the states only to the extent of the essentials of a system of ordered liberty.”22 Corwin highlighted the same point: “It is only liberty that the Fourteenth Amendment protects.”23 If Katz and Corwin are correct, the individual states could legitimately establish churches but could not infringe a citizen’s right to free exercise of religion. Thus the several states, in that view, would not be bound by the restrictive “no establishment” clause but are bound by the “free exercise” clause since it is related to freedom.
Kauper, in commenting on the Zorach case, interpreted the situation in this manner: “The Court says that the legislature may take account of the religious interests of its people in its legislative program so long as it does not act with coercive effect upon dissenters and non-believers and no preference is given to any one religious group.”24
Separation of Church and State
The “wall of separation between Church and State” had its origin in a letter of Thomas Jefferson to the Danbury Baptist Association in which he denied their petition for a national day of prayer and fasting.25 Since the Everson case of 1947, this metaphor has played a major role in many cases relating to Church–State relations that have been brought to the Supreme Court. The position of “absolute separatists” is well known26 and needs no further documentation or elucidation. There is, however, a group of scholars who analyze the “separation” doctrine differently and whose views have not as yet been sufficiently heard.
O’Neill has attempted to “second-guess” Jefferson: “We know conclusively, if we know Jefferson, that he could not have been thinking of a wall so high, so impregnable, so absolute, so completely without gates, or stiles, or friendly openings, as forever to prohibit any intercourse, neighborly help, or cooperation of any kind between government and religion.”27
What at first glance may appear as wishful thinking was affirmed by the American Bar Association Journal in a 1948 editorial: “As President of the United States, Jefferson used public funds and government properties in aid of religion and religious education in various ways.”28 This was precisely Senator Packwood’s conclusion, cited earlier.
Hutchins has refused to deal with the concept at all: “The wall has done what walls usually do: it has obscured the view. . . the wall is offered as a reason. It is not a reason; it is a figure of speech.”29 He went on to declare that “the wall has no future because it cannot help us to learn.”30 Abraham counseled against heavy reliance on this image because “the doctrine of the ‘wall’ is no solution per se. It fails because the necessary line depends overridingly on public policy considerations – and on the interests of contending groups.”31
Clancy has argued against the concept from yet another angle:
The “wall of separation” metaphor is an unfortunate and inexact description of the American Church–State situation. What we have constitutionally is not a “wall” but a logical distinction between two orders of competence. . . . The “wall” of separation between Church and State, as it is conceived by most “absolute separatists” in America, is not really a constitutional concept. It is rather a private doctrine.32
Philip Kurland wrote that the principle of separation “is meant to provide a starting point for solutions to problems brought before the Court, not a mechanical answer to them.”33 Kauper advocated understanding this principle as derived from the First Amendment and, consequently, dependent on it for its meaning: “The Zorach opinion recognizes that the First Amendment itself says nothing about the separation of Church and State. Separation is not in itself a starting point in constitutional thinking. It follows and is required only to the extent that it flows from the clauses related to non-establishment and the free exercise of religion.”34
Katz recalled the purpose of separation: “Separation ordinarily promotes religious freedom; it is defensible so long as it does so, and only so long.”35 In another work, he drew out an important implication of a policy of absolute separation: “A rule of absolute separation would mean outlawing provisions designed to implement religious freedom, as in the armed forces.”36 Using England as an example, Franklin Littell asserted that “religious liberty and a ‘wall of separation’ are not identical.”37
The inconsistencies in the application of the separation doctrine moved Brickman to observe: “When a principle, such as that of Church–State separation, has been consistently violated with common consent over the years, it is reasonable to inquire if it has not been downgraded to an ‘un-principle’ or ‘anti-principle.’”38
However, the expression “separation of Church and State” has taken on an air of unchangeable doctrine or immutable truth. Nevertheless, Marnell challenged the Supreme Court’s reliance on this approach:
It is one of the curious anomalies of the recent history of the Supreme Court that a Court whose membership has shown a vigorous readiness to apply new viewpoints to certain ancient problems of society should view the American relationship of Church and State as if it has been from the beginning and was as the law of the Medes and the Persians, which altereth not.39
“No Establishment” and “Free Exercise” in Conflict
If the constitutional provision forbidding an establishment of religion and the equally constitutional guarantee of free exercise of religion conflict, which takes precedence? Opinion is scattered, and the decisions of the Court have varied. However, Byrnes’s reading of history led him to maintain that “when the two clauses conflict, the Free Exercise Clause has generally been held to rule.”40 This has occurred because, in Kauper’s analysis, the Supreme Court has “elevated religious liberty to the position of a preferred freedom.”41 Lawrence Tribe has asserted: “The free exercise principle should be dominant in any conflict with the anti-establishment principle. Such dominance is the natural result of tolerating religion as broadly as possible rather than thwarting at all costs even the faintest appearance of establishment.”42
Katz has argued that the government’s position vis-a-vis religion should be neutral. He saw this neutrality as requiring, for example, state aid to parochial schools: “While the government should not promote religion, it not only may, but should, try to avoid restraining or burdening religious choices. And if groups wish to have parish schools, there seems to be a presumption in favor of so molding government fiscal policies as not to handicap that choice.”43
James Powell made an interesting suggestion as to why the Supreme Court has had such difficulty in the parochial school aid cases, when the free exercise clause appears as such a ready solution. He perceived the heart of the matter to lie in this area: “[The Supreme Court] conceives free exercise of religion in such narrow terms, i.e., within the walls of the church or the home, it is not really cognizant of violations of the rights of others for which religion and education are much more intimately joined.”44
While suggesting that state aid may be unconstitutional since it would force the general populace to aid religion, Pie raised an objection from the other side: “To insist that a man must spend his money to support an irreligious system of education, such as is contained in the public school system, is unfair.”45 The same logic was operative in Parsons’s intriguing observation: “No Catholic parent has yet sued to show that his religious liberty is violated by using his taxes exclusively for only one kind of school, a school to which his Church and religious conscience forbid him to send his children.”46
Joseph Sobran’s brilliant analysis of the situation is worthy of detailed consideration, especially since he links the establishment of religion question (in terms of church attendance) with the establishment of a unitary school system. His insights are not only logical but also novel:
Let us spell out the analogy of this culture to an established church. When the state has an official religion, it may, as in England, tolerate others. But the established church is paid for out of public monies taken compulsorily, as all taxes are, from all citizens. You have to pay for it whether you belong or not. If you want another church in keeping with your own beliefs, you pay for it out of the money the state has left you.
That is how our educational system now works: you pay for the schools from which religion is banned whether your children attend them or not, whether you agree with them or not, whether you think them good influences or not.47
It has become commonplace to assert that the rights of the majority are as safe as the rights of any given minority. Swomley attacked Roman Catholics for being more concerned with themselves than with the general public, apparently rejecting that axiom: “The weight of Roman Catholic thinking on elementary and secondary education seems more concerned with ‘justice’ or ‘freedom of choice’ for Roman Catholics than with religious liberty for the entire community.”48
Tribe did not accept such thinking. On the contrary, he said that “we must ask whether, in the present age, religious tolerance must cease to be simply a negative principle and must become a positive commitment that encourages the flourishing of conscience.”49
Some Concluding Thoughts
The Greek New Testament has two words for “time” – chronos, which measures time by the hour, month or year, and chairos, which refers to a particularly propitious moment. I want to suggest that we are face-to-face with a genuine chairos, for which we need to thank Barack Obama as he has awakened a sleeping giant in the Catholic Church.
An axiom asserts that “knowledge is power.” That is true, however, only if the knowledge is acted upon. This is the time to be informed and to inform others. This is the time to act, while action is still possible. If we Catholics, in concert with others of goodwill, respond to the current crisis (another Greek word, meaning an opportunity for judgment and decision), if we respond to the current crisis, with intelligence, conviction and courage, we will have performed a most valuable – indeed, a most precious – service, not only for Catholics but for all freedom-loving people throughout the world.
My friends, our contemporaries are watching. Our descendants are hoping. May we not disappoint them.
1“Current Comment,” America 134 (13 March 1976): 193f.
2Thomas O’Toole, ed., Institute of Church and State 2 (Villanova, Pennsylvania.: Villanova University School of Law, 1959), p. 65.
3Ibid., pp. 40f.
4333 U.S. 237 (1948).
5J. M. O’Neill, Religion and Education under the Constitution (New York: Harper & Bros., 1949), p. 11.
6The Debates and Proceedings in the Congress of the United States, 1789–1824 (Washington, D.C.: 1834–1856), pp. 729–731.
7Thomas Emerson et al., Political and Civil Rights in the United States (Boston: Little, Brown and Co., 1967), p. 29.
8William Miller et al., Religion and the Free Society (New York: The Fund for the Republic, 1958), p. 49.
9Joseph Sobran, “The Abortion Culture,” The Human Life Review 7 (Spring1981): 19.
1095th Congress, p. 13202.
11Dumas Malone, Jefferson and His Time: The Sage of Monticello (Boston: Little, Brown & Co., 1981), p. 199.
12Ibid., p. 270.
13Charles Black, Structure and Relationship in Constitutional Law (Baton Rouge: Louisiana State University Press, 1969), p. 13.
14Paul Kauper, Religion and the Constitution (Baton Rouge: Louisiana State University Press, 1964), p. 50.
15John Cogley, ed., Religion in America (New York: Meridian Books, 1958), p. 52.
16210 U.S. 81 (1908).
17Elwyn Smith, Religious Liberty in the United States (Philadelphia: Fortress Press, 1972), p. 252.
18Paul Freund et al., Constitutional Law: Cases and Other Problems (Boston: Little, Brown & Co., 1967), p. 2098.
19Edward Corwin, A Constitution of Powers in a Secular State (Charlottesville, Virginia.: The Michie Co., 1951), p. 61.
20John Cogley [ed.], Religion in America (New York: Meridian Books, 1958), p. 102.
21See Cantwell v. Connecticut, 310 U.S. 296 (1940).
22Wilber Katz, Religion and American Constitutions (Evanston, Illinois.: Northwestern University Press, 1963), p. 30.
23Corwin, A Constitution of Powers, p. 114.
24Paul Kauper, Civil Liberties and the Constitution (Ann Arbor: University of Michigan Press, 1966), p. 18.
25Chester Antieau et al., Freedom from Federal Establishment (Milwaukee: Bruce Publishing Co., 1964), p. 183.
26Cf. The works of Blanshard, Pfeffer, and Swomley listed in the Bibliography of my work, Constitutional Rights and Religious Prejudice: Catholic Education as the Battleground (Pine Beach, New Jersey: Newman House Press, 2010).
27J. N. O’Neill, Religion and Education under the Constitution (New York: Harper and Brothers, 1949), p. 83.
28“No Law But Our Own Prepossessions,” American Bar Association Journal (June 1948), p. 484.
29Dallin Oaks, The Wall between Church and State (Chicago: University of Chicago Press, 1963), p. 19.
30Ibid., p. 25.
31Henry Abraham, Freedom and the Court (New York: Oxford University Press, 1976), p. 252.
32Miller, Religion and the Free Society, pp. 27–28.
33Philip Kurland, Religion and the Law (Chicago: Aldine Publishing Co., 1962), p. 18.
34Kauper, Civil Liberties and the Constitution, p. 18.
35Cogley, Religion in America, p. 97.
36Katz, Religion and American Constitutions, p. 13.
37Franklin Littell, From State Church to Pluralism (Garden City, New York.: Doubleday, 1962), p. 100.
38William Brickman, Subsidized Pluralism in American Education (New York: Society for the Advancement of Education, 1959), p. 115.
39William Marnell, The First Amendment (Garden City, New York.: Doubleday, 1966), p. 101.
40Lawrence Byrnes, Religion and Public Education (New York: Harper and Row, 1975), p. 64.
41Kauper, Civil Liberties and the Constitution, p. 43.
42Laurence Tribe, “Rights of Religious Autonomy,” American Constitutional Law (Mineola, New York: Foundation Press, 1978), p. 833.
43Katz, Religion and American Constitutions, p. 77.
44James Powell, “Public Schools and the First Amendment,” America 139 (1/8 July 1978): 8.
45O’Toole, Institute of Church and State, p. 112.
46Wilfred Parsons, The First Freedom (New York: Declan McMullen Co., 1948), p. 121.
47Sobran, “The Abortion Culture,” p. 12.
48John Swomley, Religion, the State and the Schools (New York: Pegasus Books, 1968), p. 48.
49Tribe, “Rights of Religious Autonomy,” p. 834.