God on Trial: Landmark Cases from America's Religious Battlefieldsby Peter Irons
As the United States has become increasingly conservative, both politically and socially, in recent years, the fight between the religious right and those advocating for the separation of church and state has only/b>
An insightful and dramatic account of religious conflicts that keep America divided?from the acclaimed author of The Courage of Their Convictions
As the United States has become increasingly conservative, both politically and socially, in recent years, the fight between the religious right and those advocating for the separation of church and state has only intensified. As he did in The Courage of Their Convictions, award-winning author and legal expert Peter Irons combines an approachable, journalistic narrative style with intimate first-person accounts from both sides of the conflict. Set against the backdrop of American history, politics, and law, God on Trial relates the stories of six recent cases in communities that have become battlefields in America?s growing religious wars.
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God on Trial
ALSO BY PETER IRONS
The New Deal Lawyers
Justice at War: The Story of the Japanese American Internment Cases
The Courage of Their Convictions: Sixteen Americans Who Fought Their Way to the Supreme Court
Justice Delayed: The Record of the Japanese American Internment Cases
May It Please the Court (editor and narrator)
Brennan vs. Rehnquist: The Battle for the Constitution
A People’s History of the Supreme Court
Jim Crow’s Children: The Broken Promise of the Brown Decision
Cases and Controversies: Civil Rights and Liberties in Context
War Powers: How the Imperial Presidency Hijacked the Constitution
GOD ON TRIAL
Dispatches from America’s
1 “Respecting an Establishment of Religion”
2 “A Wall Between Church and Stat
3 “We Can Never Give Up”
4 “With the Cross of Jesus” The Mount Soledad Cross Case from San Diego, California
5 “No Pray, No Play” The Football-Game Prayer Case from Santa Fe, Texas
6 “I Am the Lord Thy God” The Ten Commandments Cases from Kentucky and Texas
LOUANNE WALKER AND DAVE HOWE
7 “One Nation, Under God” The Pledge of Allegiance Case from Elk Grove, California
8 “In the Beginning” The “Intelligent Design” Case from Dover, Pennsylvania
CASEY AND JEFF BROWN
THE REVEREND ED ROWAND
Sources and Suggested Readings
God on Trial tells the stories of recent conflicts over religion in six American communities: towns and cities that have become battlefields in America’s growing religious wars. They are spread across the country, from Pennsylvania to California, and range in size from a rural town of barely a thousand people to the nation’s seventh-largest city. Each conflict began with a decision by elected officials—school-board members, city councilors, county executives, or state legislators—to place a religious symbol on public property or to adopt a religious practice in public schools. Some of these symbols and practices went unchallenged for years, even decades, while others prompted an immediate objection by dissenting community residents. Each local conflict wound up in federal courtrooms, requiring judges—from the trial level to the Supreme Court’s chamber—to interpret and apply the first clause of the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion.” The outcomes of these cases differed widely, reflecting long-standing judicial discord over the “original intent” of the clause’s framers in 1789 and its current meaning, more than two centuries later. Similar cases have already divided local communities, and will soon be decided by judges and justices whose earlier rulings in Establishment Clause cases remain open for either reversal or reaffirmation.
The seeds of this book were planted some thirty years ago by a four-word sentence in a Supreme Court opinion that I read as a law student: “We live by symbols.” Justice Oliver Wendell Holmes, who wrote these words, had in mind symbols that have long rallied their followers to heroic deeds, even to sacrifice their lives in wars to protect the values those symbols embody. One such symbol is the American flag, the defense of which against the Confederate insurrection in the Civil War spurred Holmes to enlist in the Union Army, in whose service he was twice gravely wounded in battle. An equally powerful symbol for many Americans is the Christian cross, often linked to the flag in a merger of religious and patriotic zeal. The two tablets of the Ten Commandments symbolize for both Jews and Christians the moral foundation of God’s rules for belief and behavior. Symbolic meaning can be expressed in words as well as objects. The first chapter of Genesis, read literally by many Christians, symbolizes their belief that God created all of Earth’s living creatures, including humankind, in just six days. And spoken prayer at public events, from the first meeting of Congress in 1789 to the most recent presidential inauguration, has symbolized the dual commitment of elected officials to God and to the Constitution whose commands they swear to uphold.
Public-opinion polls going back more than four decades show that a strong majority of Americans supports the public display of religious symbols, prayer in public schools, and the teaching of “creationism” in high-school biology classes. But a minority—sometimes just one person in a community—objects to such displays and practices. Many dissenters—and we cannot know how many—simply hold their tongues and remain silent, fearful of provoking the hostility of their friends and neighbors. Others, however, voice their objections at school-board meetings, in city-council sessions, or in letters to their local papers. An even smaller number take the step of filing lawsuits, often with the aid of lawyers representing organizations committed to the separation of church and state, suits that are frequently opposed by lawyers from well-funded Religious Right groups. Only a tiny number of these suits reach the Supreme Court, but the decisions in such cases have ramifications far beyond the towns and cities in which they began.
Over the past three decades, both as a practicing lawyer and a constitutional-law professor, I have tracked hundreds of Supreme Court cases, and have written about dozens of them in several books, including The Courage of Their Convictions, which recounted sixteen cases—decided between 1940 and 1986—that raised issues of race, religion, protest, and privacy. For that book, I visited the communities in which the cases began, and interviewed the people who initiated legal challenges that resulted in landmark Supreme Court decisions. In a later book, Jim Crow’s Children: The Broken Promise of the Brown Decision, I also visited the five communities—in Kansas, Delaware, Washington, D.C., Virginia, and South Carolina—from which challenges to school segregation all reached the Supreme Court and were jointly decided in 1954 in that historic decision. In both books, I recorded the first-person stories of people who were involved in those cases, recalling their experiences in words that expressed the range of emotions from pain to exultation. These stories, I felt, added human faces and voices to the dry words of judicial opinions.
When the seeds of Justice Holmes’s observation finally sprouted in the idea for this book, I decided to follow the format of these earlier books, visiting the communities in which “symbol” cases began and recording the stories of people who played key roles in them. I also decided to include the stories of people on both sides of the cases, to understand better the differing values and beliefs that prompted them—some eagerly and others reluctantly—to stand on opposite sides of the “wall of separation” between church and state, an increasingly shaky wall in recent years. I faced the initial task of winnowing through dozens of possible cases. My final choice of the six that are recounted in five later chapters—two almost identical cases are joined in one chapter—reflects my judgment as to which cases were both significant and exciting, at least to me. I have placed these chapters in chronological order, based on the year the cases were filed and not on their final decision.
They begin in 1989 with a challenge in San Diego, California, to a forty-three-foot-high Latin cross in the middle of a 170-acre public park at the summit of Mount Soledad, the city’s highest point and its most visible landmark. Next, I recount the challenge in 1995 to the recital of prayers at high-school football games in the Gulf Coast town of Santa Fe, Texas. Four years later, in 1999, separate lawsuits were filed against the display of the Ten Commandments in the courthouses of two rural Kentucky counties and on the grounds of the state capitol in Austin, Texas. The following year, in 2000, a parent with a first-grade student in Elk Grove, California, challenged the words “under God” in his daughter’s daily recital of the Pledge of Allegiance to the American flag. Finally, in 2004, eleven parents of children in the public schools of Dover, Pennsylvania, challenged the school board’s decision to require the reading in high-school biology classes of a statement supporting “intelligent design” as an alternative to the Darwinian theory of evolution.
All these cases share two features that influenced my decision to include them in this book. First, the judicial decisions they produced all provoked heated reactions from political leaders, including prominent members of Congress and President George W. Bush, most often in denunciation of “activist” judges whose decisions the politicians deplored. Some rulings even spurred campaigns for the impeachment of the offending judges; ironically, most had been named to the bench by Republican presidents. Second, each case drew the involvement of both Separationist and Religious Right groups and their legal teams, either as counsel or as “friends of the court” in filing supporting briefs. Many other groups, some with millions of members, like the American Legion and the National Education Association, also filed briefs in high-profile cases. For example, when the Pledge of Allegiance case reached the Supreme Court in 2004, the briefs of the parties were joined by more than fifty that expressed the views of almost one hundred interest groups on both sides.
These factors help to explain this book’s admittedly provocative subtitle. It may seem hyperbolic to employ such a martial term as “battlefields” in recounting conflicts in which none of the combatants took up arms against one another. To be sure, in some cases tempers grew short, voices were raised, people were verbally abused, warned of eternal damnation, and even threatened with physical harm. But such expressions of anger and frustration are common when people clash over things in which they deeply believe, and few beliefs are more deeply held than religious convictions. Americans are fortunate—perhaps “blessed” is a better term—to have thus far been spared the bloody sectarian wars that have cost thousands of lives in other countries. In recent years, and even today, Catholics and Protestants in Northern Ireland, Muslims and Hindus in India, Jews and Palestinians in Israel, and Sunni and Shia Muslims in Iraq have killed one another in civil wars that have both religious roots and political aims. But even in America’s history, lives have been lost in religious conflict. As we will see, the execution of “witches” in colonial Massachusetts, the hanging of Quakers in that colony, and the death of thirteen people in the “Bible Riots” that erupted in Philadelphia in the 1840s all stemmed from religious conflicts in which the executioners and rioters claimed divine sanction for their murderous acts.
We tend to look back on such events as aberrations from the tradition of religious tolerance that we like to think better reflects our nation’s history. But this strain of religiously motivated violence is not ancient history. Over the past three decades, antiabortion militants have murdered doctors, nurses, and clinic patients in the name of God. Loosely tied under the banner of the “Army of God,” these Christian extremists ironically share that name with a faction of Muslim extremists who have beheaded Americans in the name of Allah. Needless to say, the antiabortion movement should not be tarred with the brush of such domestic terrorists, any more than American Muslims should be charged with the crimes of their religion’s terrorist fringe.
But the imagery of religious “warfare” remains in American society and politics, reflected in the titles of two recent books. David Limbaugh, a lawyer and brother of the better-known Rush Limbaugh, was the author in 2003 of Persecution: How Liberals Are Waging War Against Christianity. Journalist Clint Willis answered in 2005 with Jesus Is Not a Republican: The Religious Right’s War on America. As these titles suggest, Limbaugh and Willis both blame their political adversaries for launching religious wars to achieve political goals. Behind their fevered rhetoric, both authors have correctly identified a long-standing feature of our nation’s history, the close linkage of politics and religion. Back in the 1830s, Alexis de Tocqueville—a French Catholic visitor to America—noted that “religious zeal is perpetually stimulated in the United States by the duties of patriotism” and remarked that “you meet with a politician where you expected to find a priest.”
Over the years since Tocqueville’s perceptive observations, American politics has been infused with religious appeals for partisan support. The most notable recent example was voiced in the fiery speech by Pat Buchanan, the conservative writer and one-time presidential candidate, to the Republican national convention in 1992: “There is a religious war going on in this country, a cultural war as critical to the kind of nation we shall be as the Cold War itself, for this war is for the soul of America.” Buchanan’s linkage of religion to the broader American culture is telling, and reflects the fact that virtually every aspect of our culture—art, literature, television and film, family life, sexuality, and other elements of our society—has become a target of what I call the New Puritans. Those who campaign against pornography, abortion, and same-sex marriage are the same people who battle to protect such religious symbols and practices as the Ten Commandments, Christian crosses, and school prayer.
This book’s structure reflects the intersection of American history, law, and politics as they jointly affect the religious battles that have been waged since our nation’s earliest days. The first three chapters explore these factors in that order, providing the context for the cases recounted in the five that follow. Chapter One lays the historical foundation, beginning with the settlement of the New England colonies by English Puritans, determined to build a “New Jerusalem” in which church and state were linked with legal codes based explicitly on Old Testament proscriptions and punishments. Other colonies, such as New York, Pennsylvania, and Virginia, did not follow the model of the New England theocracies, but most taxed their residents to support established churches and punished religious dissenters, most notably Baptists, with fines and imprisonment for preaching without licenses. Two Virginia politicians, James Madison and Thomas Jefferson, were revolted by what Madison called in 1774 the “diabolical, hell-conceived principle of persecution” for religious beliefs, and responded with successful efforts to disestablish their state’s Episcopal Church. Although Madison resisted calls at the Constitutional Convention in 1787 to add a bill of rights to the new nation’s charter of government, he reluctantly bowed to pressure from opponents of its ratification, drafting in 1789, as a member of the First Congress, a bill of rights whose first two clauses provided that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Chapter Two explains the seemingly puzzling fact that not until 1947 did the Supreme Court issue its first Establishment Clause ruling. Because the First Amendment, by its terms, applied only to congressional acts, the justices had consistently held that local and state laws were beyond their jurisdiction. Starting in 1925, however, the Court abruptly—and without explanation—began the process of “incorporating” First Amendment guarantees into the Fourteenth Amendment, which requires the states to provide their citizens with the same “due process” guarantees of the Fifth Amendment. One by one, beginning with the Free Speech and Free Press clauses, the Court protected First Amendment rights against state abridgment. A series of rulings between 1938 and 1943 extended that protection to the Free Exercise Clause, largely in cases brought by members of the Jehovah’s Witnesses, who challenged laws that banned or restricted their practices of door-to-door and street-corner proselytizing. In 1947, the Court held that the Establishment Clause “requires the state to be a neutral in its relations with groups of religious believers and non-believers,” in an opinion written by Justice Hugo Black. Over the next five decades, the Court applied the “neutrality” doctrine—with a few exceptions—in striking down state laws that allowed prayer and Bible-reading in public schools, the teaching of Biblical “creationism” in high-school biology classes, and the posting of the Ten Commandments in school classrooms. These decisions have all served as precedent in the cases recounted in this book, although the Court’s divisions in recent Establishment Clause cases have exposed what Justice Clarence Thomas has aptly described as the “hopeless disarray” among his colleagues over that clause’s interpretation and application.
Chapter Three examines the political factors in America’s religious wars, first looking at the groups—most notably, the American Civil Liberties Union and Americans United for Separation of Church and State—that have long supported church-state separation. Beginning in the 1930s, ACLU lawyers racked up an impressive string of Supreme Court victories, largely in defending Jehovah’s Witnesses. Founded in 1947, Americans United joined the ACLU in opposing laws that provided tax support for private religious schools, most of them Catholic. In these early Establishment Clause battles with local and state officials, ACLU and AU lawyers most often faced—and almost always defeated— lawyers with little experience in First Amendment law. The emergence and rapid growth of the Religious Right during the Reagan years, however, prompted its leaders to establish legal arms for such groups as Pat Robertson’s Christian Coalition and Jerry Falwell’s Moral Majority. Robertson set up the American Center for Law and Justice in 1990, and Falwell soon followed by forming Liberty Counsel; more than a dozen other Religious Right groups now have their own legal arms. Lavishly funded by right-wing foundations, these organizations are staffed by skilled and media-savvy lawyers who have battled their ACLU and AU adversaries in dozens of religion cases over the past two decades.
With these first three chapters as background, Chapters Four through Eight take us into the six communities in which began the local battles over religious symbols and practices they recount. Each chapter ends with the first-person stories of people who played key roles on both sides of these battles. They include both evangelical and mainstream Christians, Jews, those with no religious ties, and atheists. They represent, in fact, people who live in almost every American town and city, distinguished only by taking a stand on issues that have divided their communities and the nation.
Let me, finally, explain the background and beliefs that impelled me to write this book. My longtime interest in religious disputes stems from those within my own family. One of my ancestors, the Reverend John Greenwood, ordained as an Anglican priest, broke with the Church of England and was among the first Puritan ministers in England. He was executed in 1593 for “writing against the Book of Common Prayer,” spurring members of his church to seek sanctuary in Holland. My earliest American ancestor, William White, arrived with other Puritans from Holland and England on the Mayflower in 1620, and was a signer of the Mayflower Compact. The first generations of this family branch were staunch Puritans, several becoming Puritan ministers. More recently, my maternal grandparents were both religious apostates. My mother’s father, whose parents were born in Ireland, was banished from his family in New Hampshire at the age of thirteen after refusing to attend daily Catholic services. He and my maternal grandmother, raised as a Methodist in Nova Scotia, encouraged my mother to sample all the churches in Hudson, Massachusetts, where she grew up. She finally chose the Unitarian Church, which imposes no creedal affirmations on its members, as the most welcoming for a teen-ager with an inquiring mind.
My father’s ancestors were Scots-Irish immigrants to western Pennsylvania in the 1780s, bringing with them the stern Calvinism of the Presbyterian Church and producing several noted ministers; the Irons Memorial Presbyterian Church in McDonald, Pennsylvania, bears the name of my great-great-grandfather. My father left the Presbyterian Church during his college years, and became a Unitarian when he married my mother. Along with my six brothers and sisters, I attended Unitarian churches from the age of seven through high school. During my years at Antioch College, whose first president in the 1850s was a noted Unitarian, Horace Mann, I attended Quaker meetings in the college chapel. Over the two decades after my graduation from Antioch in 1966, during which I obtained a doctorate in political science from Boston University and a J.D. from Harvard Law School, I rarely attended church, although I sometimes went to Quaker meetings and Buddhist services, relishing the focused spirituality they encouraged.
After I moved from Boston in 1982 to teach constitutional law at the University of California, San Diego, I returned to the Unitarian Church. Here I met my wife, whose parents are nonobservant Jews but insisted that she attend Hebrew school and go through the Bas Mitzvah ceremony. Our two daughters attended Unitarian Sunday school in San Diego, but after I retired from UCSD in 2004 and we moved to a very small town in northern California, far from the nearest Unitarian church, I began attending the local United Methodist church, whose members were delighted to finally have a bass in its seven-member choir. Greenville’s Methodists have welcomed me into their church, although I do not recite the Lord’s Prayer and sit quietly in my pew during the monthly Communion service. This family background of Puritans, Catholics, Methodists, Presbyterians, and Unitarians has shaped the perspective that I bring to this book.
During my legal career, I have been involved in several religion cases. Between 1989 and 1998, I served as counsel for two San Diego atheists who filed a lawsuit to remove a Latin cross from the Mount Soledad Natural Park, arguing the case in the federal court of appeals and successfully opposing the city’s petition for Supreme Court review of the lower-court order to remove the cross. My account of that case in Chapter Four includes my own participation in the ongoing legal battle. In 2004, I wrote and filed with the Supreme Court a “friend of the court” brief in the suit to block the recital of the words “under God” in the Pledge of Allegiance in public-school classrooms in Elk Grove, California. I filed the brief on behalf of nineteen eminent theologians and religious scholars—Christian, Jewish, Buddhist, and Hindu—who supported that challenge. That same year, I also represented Carrie Roat, a parent in the small Ozark mountain town of Humansville, Missouri, who challenged the display of the Ten Commandments and the recital of Christian prayers in her teen-aged son’s school. Carrie filed her suit against Greg Thompson, the school superintendent, who had posted the Commandments and led the prayers, and who passionately defended his actions. That case ended with a settlement I negotiated with the school district’s lawyer, in which the school board agreed to remove the Commandments and stop the prayers. Greg Thompson refused to sign the settlement and was fired for his recalcitrance. The story of Carrie’s case, which provoked intense community hostility against her, could easily have been a chapter in this book, although it never reached trial.
It bears reflection that there are hundreds of towns like Humansville, in which religious symbols and practices in public places go unchallenged, but only a handful of people like Carrie, willing to take a stand against the majority of their fellow citizens. My own sympathies lie with the Carrie Roats in our nation’s towns and cities, but we need also to understand the Greg Thompsons. Talking with people like them, in the six towns and cities I visited in recent months, has given me a deeper understanding of the differing beliefs and values that have sparked these local battles in America’s growing religious wars. My hope in writing this book is that its readers will also deepen their understanding of the ongoing struggle for “the soul of America.”
God on Trial
“Respecting an Establishment of Religion”
The backdrop to America’s growing religious wars lies in the dark under-side of our nation’s history. Before we visit the cities and towns in which recent battles over religious symbols and practices began, we need first to examine how that history shaped the current struggle between partisans on both sides of the national conflict over church-state separation. Those who debate the role of religion in the public square—preachers, politicians, and pundits among them—fire rhetorical volleys across the metaphorical “wall of separation” that divides the combatants, all claiming that history supports their side. Echoes of these noisy debates reverberate in the quiet chambers of the Supreme Court, which has the final word in deciding cases that begin with local disputes over religion and end with rulings that reflect the Court’s reading of the historical record on which justices base their opinions. Over the past quarter-century, the Court’s initial consensus in religion cases has dissolved into often bitter discord among the justices over the “intent” of the men who framed and adopted the Establishment of Religion Clause of the First Amendment.
Not surprisingly, the justices have differed sharply in their readings of America’s religious history. On the rough spectrum from left to right, the more “liberal” justices have most often read that history as requiring “a wall between church and state” that “must be kept high and impregnable,” as Justice Hugo Black stated in 1947. More “conservative” justices have generally dismissed the “misleading metaphor” of the church-state wall, as Justice William Rehnquist wrote in 1985. We will discuss those dueling opinions in the following chapter; my point here is that Black and Rehnquist both quoted extensively from the same historical record in reaching their opposite conclusions. Through Black’s liberal eyes, this record supported his “separationist” position on church-state separation, while Rehnquist’s conservative eyes found in it support for his “accommodationist” approach to Establishment Clause cases.
If justices like Black and Rehnquist have differed so sharply in their reading of America’s religious history, it is fair to ask whether that history matters, or has simply become a convenient weapon for the combatants on both sides of our current religious wars. In my view, both propositions are true. The history of religious conflict that led to adoption of the Establishment Clause in 1791, as Black noted, clearly supports the contention of its primary author, James Madison, that the clause was intended to ensure “the total separation of the church from the state.” It is equally clear, however, as Rehnquist pointed out, that Madison had initially proposed only that no “national religion be established,” presumably leaving the states free from congressional regulation in religious matters. Which of Madison’s words—and those of the other men who participated in framing the Establishment Clause—should we consider the best guide to its meaning and application? That question, I submit, makes little difference to the partisans on both sides of our current religious wars, who pick and choose from the framers’ words only those that serve their political purposes.
There is, however, considerable irony in the complaints of today’s Religious Right leaders that church-state separation is a “lie of the Left,” propagated by “non-Christian people and atheistic people” who have conspired “to destroy the very foundation of our society,” as Pat Robertson has charged. Many of today’s evangelical Christians seem unaware that their colonial forebears were the very people that James Madison had labored for years to protect from the forced exactions of established churches. Those who denounce church-state separation as a “myth” have turned history on its head. Proclaiming that America was founded as a “Christian nation,” and that its laws should reflect that heritage, they ignore the persecution of evangelicals and other religious dissenters who challenged the established churches of the colonial period. The earliest advocates of a “Christian nation” in the New World, in fact, persecuted adherents of nonconforming sects with an Old Testament vengeance. The real myth, taught to generations of schoolchildren, is that the Pilgrims who signed the Mayflower Compact in 1620 had left England to establish a colony in which all religions would be tolerated. It was, however, only the “Advancement of the Christian faith” the Compact’s signers declared as their goal, and to whose adherents they promised “just and equal Laws” to which the colonists would owe “submission and obedience.”
The Puritans who followed the first Pilgrims to Massachusetts in 1630 had even less regard for religious tolerance. As their name implies, they wanted to “purify” the Church of England, to which they still claimed allegiance, from doctrinal “corruption” and ecclesiastical domination. John Winthrop, the Massachusetts Bay Colony’s first governor, famously depicted the Puritan vision of the “New Jerusalem” as a “city upon a hill,” in which Christians would live by God’s commandments, not the edicts of the Anglican hierarchy. American presidents from John Adams to Bill Clinton have invoked Winthrop’s stirring imagery. Ronald Reagan, most notably, spoke of America as a “Shining City” that was “God-blessed, and teeming with people of all kinds living in harmony and peace,” and whose “doors were open to anyone with the will and the heart to get here.” What these presidents failed to note, however, was that Winthrop drew his image from the book of Matthew, recording the message of Jesus that only the “righteous” inhabitants of this holy city could “enter into the kingdom of heaven.”
The doors of Puritan Massachusetts were definitely not open to the “unrighteous” who challenged its religious orthodoxy. Winthrop and his followers imposed a rigid theocracy on the colony, enforced by laws based on the Mosaic Code of the Old Testament. Nathaniel Ward, a former lawyer in the English courts and later a Puritan pastor, drafted in 1641 a “Body of Liberties” that heeded Winthrop’s admonition to punish “anything that can be proved to be morally sinful by the word of God.” In drafting the criminal code for the colony, Ward noted in the margin of each provision the book, chapter, and verse in the Bible that gave divine sanction to punishment of its transgression. Ward’s listing of fifteen capital crimes began, not with murder, but with the most serious affront to Puritan orthodoxy, that of idolatry: “If any man after legal conviction shall have or worship any other god, but the lord god, he shall be put to death.” Ward cited for this provision Chapter 17 of Deuteronomy, in which Moses told the Israelites that any person who has “served other gods, and worshipped them,” shall be brought before the people, “and you shall stone them to death.” Second on Ward’s list of capital crimes was witchcraft, a law applied with a vengeance in the Puritan town of Salem in 1692, where nineteen women—most of them young household servants—were hanged and one man, Giles Corey, was pressed to death with heavy stones. “The Body of Liberties” also prescribed capital punishment for sexual practices that were condemned in the Mosaic Code, including homosexual sodomy and adultery. Executions for these crimes were infrequent; colonial records show that only two married persons were put to death for adultery. But having these crimes on the books served the purpose of social control, guided by the church and enforced by the state.
Today, most Americans are shocked and sickened by news accounts of public executions in countries like Saudi Arabia, often carried out by stoning or beheading, for crimes such as adultery and sodomy. We tend to forget that Islamic countries that have enacted the religious law of the Koran into their criminal codes are separated only by time and distance from the religious moralists of the New England colonies. Most Islamic regimes, including the Saudis, also prohibit—and often punish with fines and imprisonment—the practice of “heretical” religions such as Christianity. Baptists have been particularly subjected to persecution in Islamic countries, with Saudi Arabia a leading offender. The U.S. Commission on International Religious Freedom, established by Congress in 1998, reported in 2002 that foreign Christian workers in Saudi Arabia have been “detained, arrested, tortured, and subsequently deported.” Richard Land, a prominent Southern Baptist and commission member, blasted the State Department for refusing to impose sanctions on the Saudi regime for such mistreatment. “It’s unthinkable to me that our government is not pressing the Saudis on this,” Land complained.
The established churches of colonial America also detained, arrested, tortured, and deported religious dissenters, especially Baptists and other evangelical Christians. Massachusetts townships levied a tax on all inhabitants for the support of “orthodox ministers.” Many Baptists were arrested and fined for refusing to pay the tax. Four local assessors who considered the “clergy tax” unjust and failed to include it in their assessments were imprisoned. In the late seventeenth century, Baptists established a church in Kittery, Maine, then a part of Massachusetts, but faced relentless persecution. William Screven, pastor of the Kittery church, was repeatedly arrested for preaching the Baptist gospel, and members of his congregation were fined for attending his services. Threatened with banishment, Screven and his flock finally left Maine and settled in South Carolina. Another Baptist minister, Obadiah Holmes, was “well whipt” with thirty lashes in 1651 for baptizing followers in Lynn, Massachusetts.
Two more notable figures in Massachusetts were banished from the colony. Roger Williams, who arrived in Boston in 1631 as a Puritan pastor, became minister of the church in Salem, from whose pulpit he denounced the notion that civil authorities could enforce religious edicts. These views so offended his parishioners and the colony’s political leaders that Williams left Salem after a few months for the relative tolerance of the church in Plymouth, where he continued his attacks on the Puritan theocracy. “Let any man show me a commission from the Son of God to civil powers in these spiritual affairs of His Christian kingdom and worship,” he demanded in a pamphlet that enraged Puritan leaders. For this heresy, the General Court of Massachusetts expelled Williams from their midst in 1635. His establishment of a new colony in neighboring Rhode Island, in which all religions were tolerated, is celebrated today—especially by Baptists—as a landmark of religious freedom. But Rhode Island was a tiny vessel in a sea of intolerance.
Anne Hutchinson is an even more interesting figure than Williams, who in fact was orthodox in theology, disputing only the colony’s power to enforce Puritan edicts through its laws. Hutchinson, in contrast, resisted Puritan worship altogether. She held services in her home—itself a violation of law—and preached to those who attended her “study” sessions the heretical doctrines that salvation comes through grace and not through “works,” and that the Holy Spirit can dwell within every person through individual revelation. Although her husband was a close friend and ally of Governor Winthrop, Hutchinson so directly challenged Puritan orthodoxy that she found herself facing a trial before the General Court in 1637, with Winthrop as chief prosecutor and interrogator. Far more familiar with Biblical scripture, Hutchinson continually bested Winthrop in debates over theology, turning the tables with relentless questioning of her own. “How did Abraham know that it was God that bid him offer his son” for sacrifice, she demanded to know. “By an immediate voice,” he replied. “So to me by an immediate revelation,” Hutchinson said of her views on salvation by grace. “By the voice of his own spirit to my soul.” Winthrop was so enraged at having fallen into Hutchinson’s trap that he quickly called a vote on the heresy charges and secured a conviction with only three dissents. The penalty was banishment from the colony, and Hutchinson settled in Rhode Island, joining Roger Williams in exile.
One of Hutchinson’s followers, Mary Dyer, suffered an even worse fate at Puritan hands. Banished with her husband to Rhode Island, she returned to England and joined the Society of Friends, or Quakers, whose teachings were similar to Hutchinson’s. When she returned to Boston in 1657, Dyer was imprisoned for refusing to recant her Quaker beliefs, and was released only when her husband promised she would keep silent until she left the colony. Religious intolerance reached a new low in 1658, when the General Court passed a law banishing Quakers under “pain of death.” When Dyer learned that two Quaker friends had been jailed, she returned to visit them and was herself imprisoned. Banished for a third time, she returned to Boston in less than a month, vowing to “look the bloody laws in the face,” only to be jailed again. Sentenced to death, Dyer saw two Quakers hanged before her. Then, already bound and with a rope around her neck, she received a lastminute reprieve. She was again expelled to Rhode Island, but returned to Boston once again, determined to give up her life to gain the “repeal of that wicked law.” On June 1, 1660, after refusing to repent her Quaker beliefs, Mary Dyer was executed by hanging on Boston Common.
Ironically, the Puritans who broke from the Church of England were equaled in their persecution of Baptists and other religious dissenters by the Virginians who had established that church as the colony’s official religion. Baptists, in fact, were far more numerous in Virginia than in New England, and hundreds were fined or imprisoned for refusing to pay taxes that supported the Anglican Church. Others, many of them itinerant preachers, were jailed for violating the law that required a state license to conduct services. One Baptist preacher, John Weatherford, continued to preach to large crowds from his cell window in the Chesterfield County jail. So many people flocked to hear him that authorities erected a stone wall outside the jail, ten feet high and topped with jagged glass. Weatherford could not see those who came to hear him preach, but his followers would summon him to the cell window by waving a piece of cloth tied to a stick. When he saw this “call to worship,” Weatherford began preaching. He was finally released in 1773, when Patrick Henry, a prominent lawyer and politician, came to his defense. Two years later, as every high-school student learns, Henry rallied his fellow Virginians to the growing revolutionary cause with his stirring challenge, “Give me liberty or give me death!” Lamentably, few of the students who read about John Winthrop and Patrick Henry in their textbooks learn anything about Mary Dyer or John Weatherford.
The revolutionary spirit that swept the colonies in the 1770s stemmed from long-standing grievances against British rule that were summarized in the popular slogan “No taxation without representation.” The outbreak of armed rebellion in Massachusetts, beginning with the battles at Concord and Lexington in April 1775, spread throughout the colonies and spurred the patriots to adopt a Declaration of Independence at the State House in Philadelphia on July 4, 1776. In his final draft of the Declaration, Thomas Jefferson listed twenty-seven counts in his indictment of King George; thirteen accused the king of violating British law in subjecting the colonies to “tyranny.” Jefferson pointed to “the free system of English laws” as the foundation of governments that derive “their just powers from the consent of the governed.” The men who signed the Declaration were schooled in English law and simply wanted to rid the colonies of arbitrary enforcement of laws they had no voice in shaping.
Significantly, the Declaration’s signers voiced no objection to religious establishment, in England or the colonies. But the Declaration’s statement, crafted by Jefferson, that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights,” contained the seeds of rejection of established religion, as incompatible with the “liberty of conscience” that Jefferson championed. The beleaguered revolutionaries had no time for debates over religion during the war that finally ended with the surrender of British General Charles Cornwallis at Yorktown, Virginia, on October 19, 1781. Nor did the representatives of the thirteen newly independent states make any reference to religion in the Articles of Confederation they adopted that same year. The Articles, in fact, did nothing more than establish “a firm league of friendship” among the states, with each retaining “its sovereignty, freedom and independence.”
The fledgling Confederation of “sovereign” states was doomed to failure from the start, by a provision in the Articles giving each state a veto over amendments to the charter. Rhode Island, in fact, exercised an effective veto by refusing to send representatives to the Confederation Congress, which proved unable to resolve growing conflicts between the states over such contentious issues as uniform trade regulations. One conflict in particular, over fishing and navigation rights along the Potomac River, down to its outlet in Chesapeake Bay, created tensions between all four states—Maryland, Virginia, Pennsylvania, and Delaware—bordering those waterways. What became known as the Oyster War finally prompted delegates from these states to gather at the Mount Vernon estate of George Washington in 1785. But the meeting failed to settle the dispute, and those who attended resolved to invite delegates from all the other states to a convention at Annapolis, Maryland, in September 1786, to draft a “uniform system” of commercial regulations among the states.
Not enough delegates showed up in Annapolis to make a quorum, and nothing was done to end the Oyster War. But the delegates who did attend passed a resolution, urged by James Madison of Virginia and Alexander Hamilton of New York, calling upon all states to send delegates to another meeting, to consider “the situation of the United States” and to “devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union.” The Annapolis delegates set the meeting time for the second Monday of May 1787 and the place in Philadelphia. Whether enough states would send delegates to yet another meeting was far from certain.
How does this capsule history of conflicts that led to the Constitutional Convention in 1787 relate to our current religious wars? There is, in fact, a direct link between James Madison’s failed efforts to settle the Oyster War and his later role in drafting the Constitution and the Bill of Rights. Madison believed strongly in two principles. First, his experience as a Virginia representative to the ineffective Confederation Congress convinced Madison of the need for a strong “federal” government, with powers to enact uniform national laws in the areas of interstate commerce and foreign affairs. Second, and equally important, Madison opposed the taxation of his fellow Virginians to support the established Anglican Church. In 1785, two years before the Constitutional Convention, Madison had drafted and submitted a “Memorial and Remonstrance Against Religious Assessments” to the Virginia legislature.
In light of current debates over the “original intent” of the men who framed the Constitution and Bill of Rights, Madison’s words in his “Remonstrance” deserve quotation. “It is proper to take alarm at the first experiment on our liberties,” he began. “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?” Madison had no quarrel with religion in general, but he fiercely opposed its establishment. “During almost fifteen centuries has the legal establishment of Christianity been on trial,” he wrote. “What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution.”
Madison vehemently opposed state religious establishments, as his “Remonstrance” makes clear. But he left this battle in Virginia behind when he journeyed to Philadelphia for the Constitutional Convention in May 1787. Madison arrived at this meeting with a different goal, that of replacing the weak Articles of Confederation with a strong federal government. Before the delegates gathered, Madison explained to George Washington—who would preside over the convention’s sessions—that he envisioned a federal government “with positive and complete authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports.” Madison also confided to Washington that his plan would place, “over and above this positive power, a negative in all cases whatsoever on the legislative acts of the states.” This was a radical—even revolutionary—proposal that would in effect reduce the “sovereign” states to a subordinate role in the new federal system.
Over four hot summer months, delegates from twelve of the thirteen states—Rhode Island again refused to send delegates—hammered out a new Constitution. The debates were heated, and more than once threatened to scuttle the proceedings. Madison’s plan for a new federal government envisioned three separate and coordinate branches: legislative, executive, and judicial. The delegates in Philadelphia devoted most of their debates to the Congress, granting its members broad authority to “make all laws which shall be necessary and proper for carrying into execution” the powers enumerated in Article I of the Constitution. The seventeen that were listed allowed Congress to regulate commerce with foreign nations and between the states, to borrow money on the credit of the United States, and to declare war against other nations. After much debate, the delegates also provided, in Article II, that “the executive power shall be vested in a President of the United States,” elected for a term of four years. Along with his powers as “Commander-in-Chief of the Army and Navy of the United States,” the president was directed to “take care that the laws be faithfully executed.” Although some delegates fretted about the dangers of an “elected monarchy,” most viewed the president as simply the executor of congressional directives, particularly in domestic affairs.
Surprisingly, the delegates spent little time debating the powers of the judicial branch, agreeing to vest “the judicial power of the United States” in a Supreme Court “and in such inferior courts” as Congress might create. Article III gave the federal courts jurisdiction over cases “arising under this Constitution” and “the laws of the United States.” The delegates also provided, in Article VI—again with little debate—that “this Constitution, and the laws of the United States which shall be made in pursuance there of…shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” This rather convoluted provision, known as the Supremacy Clause, placed a veto power over all federal and state laws in the hands of unelected federal judges. But the Philadelphia delegates viewed the federal judiciary as the “least dangerous” branch, as Alexander Hamilton argued, with its jurisdiction limited to such issues as trade and taxation.
What transformed the “least dangerous” branch of the federal government into the “imperial judiciary” against which today’s conservatives rail? None of the religion cases discussed in this book, in fact, would have come before federal judges had James Madison not been challenged at the Constitutional Convention by a fellow Virginia delegate. George Mason “wished the plan had been prefaced with a Bill of Rights,” Madison recorded his colleague as saying. Such a provision “would give great quiet to the people,” Mason argued. Another delegate, Elbridge Gerry of Massachusetts, “concurred in the idea and moved for a committee to prepare a Bill of Rights.” Madison, however, strenuously opposed this proposal. In his view, the placement of a bill of rights in the Constitution—and its enforcement in the hands of federal judges—might undermine or even supersede the bills of rights that all but two state constitutions then contained. Madison’s home state of Virginia had enshrined in its constitution in 1776 a Declaration of Rights, drafted by George Mason, protecting rights of religion, speech, and press. “All men are equally entitled to the free exercise of religion, according to the dictates of conscience,” the Virginia constitution declared. Adding similar protections to the federal Constitution, Mason argued, would establish them as the “supreme law of the land” and prevent Congress from restricting such rights. Madison prevailed on this issue, however, and the state delegations in Philadelphia—with the abstention of Massachusetts—unanimously rejected Gerry’s motion.
With this last obstacle removed, adoption of the new Constitution seemed assured. But three delegates resisted the rush to approve the document they had helped to draft. Hours before the final vote, on September 17, 1787, Virginia’s influential governor, Edmund Randolph, proposed “a second general convention” at which “amendments to the plan might be offered” before the ratification process began. George Mason agreed that another convention was necessary, to add a bill of rights to the version before the Philadelphia delegates. “It was improper to say to the people, take this or nothing,” he argued. Elbridge Gerry warned that he could not sign a document in which “the rights of the citizens” were not protected against congressional restriction. Madison recorded the verdict on Randolph’s motion: “All the states answered—no.” But after the state delegations unanimously voted to send the Constitution to the states for ratification, Randolph, Mason, and Gerry did not join the thirty-nine men who signed the new charter of national government.
The Constitution’s fate rested on its ratification by conventions in at least nine of the thirteen “sovereign” states of the Confederation. Ironically, Edmund Randolph had proposed nine as “a respectable majority” of the states, and George Mason agreed this was the “preferable” number. They returned from Philadelphia to Virginia as opponents of ratification, placing their prestige behind the “Anti-Federalists,” who feared the erosion—or perhaps the extinction—of their cherished rights at the hands of an all-powerful national government. James Madison, along with Alexander Hamilton of New York, headed the “Federalists,” who attempted to quiet these fears with assurances that the “enumerated” powers of Congress in the Constitution were limited to “national” issues such as commerce and foreign affairs. But Madison was concerned about the Constitution’s ratification. “The country must finally decide,” he wrote to George Washington, “the sense of which is as yet wholly unknown.”
It soon became known that ratification would not succeed without the addition of a bill of rights to the Constitution. Although four of the necessary nine states had given their assent by the end of 1787, ratification by three of the larger states—Massachusetts, New York, and Virginia—lay ahead. Without the approval of all three, the Constitution had little chance of success. The votes of five smaller states, of course, would satisfy the requirement that Randolph had secured in Philadelphia. Political reality, however, demanded that all the larger states ratify the Constitution. And the price of ratification, exacted by the Anti-Federalists in these crucial states, was agreement that the First Congress would adopt a bill of rights. Delegates to the Massachusetts convention, voting by the narrow margin of 187 to 168, directed their future congressmen to “exert all their influence” in pressing for a bill of rights. By the even narrower vote of thirty to twenty-seven, New York’s convention agreed to ratification, also with a resolution demanding a bill of rights. Madison, who had compromised his principles in Philadelphia to secure the new Constitution, made a final compromise to secure its ratification in Virginia. To counter the heated objections of Patrick Henry that the Constitution “rendered insecure” the rights of Virginia’s citizens, Madison promised Edmund Randolph that he would introduce a bill of rights in the First Congress. Randolph’s acceptance of this assurance persuaded the Virginia convention to ratify the Constitution by a vote of eighty-nine to seventy-nine.
The Constitution’s ratification became official with New Hampshire’s vote, by the narrow margin of fifty-seven to forty-seven, on June 21,1788. Few people today remember—or ever learned—that a shift of ten votes in Massachusetts, two in New York, or six in Virginia would most likely have doomed its adoption. Nor do they recall that only his promise to Randolph allowed Madison to gain later renown as the “Father of the Bill of Rights.” Without this promise, in fact, Madison might well have lost his bid for election to the First Congress, in which he prevailed by a scant 366 votes over James Monroe, a young protégé of Patrick Henry and, like Madison, a future president.
Madison did carry out his promise, although he privately deplored “the nauseous project of amendments.” He was prodded in a task he considered unnecessary by his friend and mentor Thomas Jefferson, who sent Madison a stream of letters from his diplomatic post in France. “I do not like,” Jefferson wrote of the Constitution in December 1787, “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press,” and other guarantees against governmental oppression. Madison had doubted that Congress would restrict the rights of citizens, although Jefferson was less sanguine about this prospect, reminding Madison of “the tyranny of the legislatures.” Jefferson looked to the federal judiciary to correct any such abuses. “The declaration of rights will be the text whereby they will try all the acts of the federal government; as by the same text they may try the opposition of subordinate governments.” In other words, federal and state governments alike would be bound to enforce the provisions of a bill of rights as “the supreme law of the land.” These were prophetic words, since more than a century would pass before the Supreme Court began to protect freedoms of religion, speech, and press against federal and state abridgment.
Madison spent months at the laborious task of sifting through some two hundred proposed amendments that eight of the state ratifying conventions had submitted. He finally imposed a rule of thumb, considering only those that had been proposed by at least four states, reducing the pile to seventeen proposed amendments. With this list in hand, Madison finally presented a resolution for debate in the House on August 24, 1789. For our purposes, the most important of the seventeen proposed amendments in his resolution was the third, stating that “Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.” Over the next month, both the House and Senate debated several different versions of this amendment. The Senate—which then conducted its deliberations behind closed doors, with only a bare record of motions and votes—considered three motions in its session on September 3. They all would have restricted the House ban on “establishing religion” to establishments that preferred one religious sect over others. The final Senate motion read: “Congress shall make no law establishing any particular denomination of religion in preference to another.” However, all three motions were defeated, and the Senate finally adopted the language of the House version.
But, for reasons that went unrecorded, the Senate returned to the religion clause on September 9, changing the House amendment to read: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” The next day, the Senate included this version in the pared-down list of twelve amendments that it adopted and sent back to the House. Since it was clear the House would not accept the Senate version without further revision, the two bodies each named three members to a conference committee, which Madison chaired. Madison and his House colleagues adamantly refused to accept the Senate’s version of the religion amendment. The senators backed down and agreed to a final version, which read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two clauses now begin the First Amendment, followed by guarantees of freedom of speech, press, assembly, and petition. The House approved the twelve proposed amendments on September 24, 1789, and the Senate followed suit the next day. State ratification of ten amendments—the first two were defeated—concluded on December 15, 1791, now celebrated as Bill of Rights Day. Had all twelve been ratified, of course, what is now the first amendment would be the third. It seems fitting, however, that primacy in the Bill of Rights should go to protection against the religious “establishment” that James Madison fought so tenaciously in Virginia, on behalf of Baptists and other dissenters.
“A Wall Between Church and State”
It may seem puzzling that the Supreme Court did not decide a case involving the Establishment Clause until 1947, more than a century and a half after the First Amendment’s ratification. The primary reason for this long delay stems from the clause’s text, which limited its prohibition of religious establishments to congressional enactments. Without a challenge to a federal law before it, the Court would seemingly lack jurisdiction over any Establishment Clause case. That lack of jurisdiction, in fact, would extend to the other First Amendment guarantees of the freedoms of speech, press, assembly, and petition, all of which were protected only from congressional abridgment. State laws in these areas were shielded from federal judicial scrutiny. Had the Court adhered to this constitutional barrier, none of the cases recounted in later chapters—all of which challenged the actions of state and local law-making bodies—could have been decided by federal judges. But they all received hearings, and several reached the Supreme Court for final rulings. How this barrier was first breached, and finally toppled, is a story that needs a brief telling here.
The first shots in what ended with a judicial revolution in 1925 were fired in 1861 by the Confederate cannons that blasted the Union stronghold of Fort Sumter in the harbor of Charleston, South Carolina. Under the rhetorical banner of “states’ rights,” Southern politicians like Senator John Calhoun of South Carolina had fueled the flames of rebellion, echoing the demands of his state’s delegates to the Constitutional Convention in 1787 that slavery be protected from federal regulation or abolition. It took a bloody Civil War to extinguish that national conflagration. To stamp out its remaining embers, Congress passed, and the states ratified in 1868, the Fourteenth Amendment, which imposed on the states the similar ban in the Fifth Amendment—which applied only to Congress—against laws depriving “any person of life, liberty or property, without due process of law.” Over the next half-century, however, the conservative justices who dominated the Supreme Court recognized only the “liberty” of powerful corporations and sweat-shop owners, striking down dozens of state laws that set railroad rates and minimum wages. During this period, the justices turned deaf ears to the claims of political dissenters and religious minorities that the Fourteenth Amendment protected their liberty to speak their minds and spread their views, free from state punishment or regulation.
Remarkably, in a single sentence and without any citation to precedent, the Supreme Court in 1925 held that “freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the states.” Ironically, the Court’s majority upheld in this case, Gitlow v. New York, the conviction of an avowed revolutionary under the state’s “criminal anarchy” law, which punished any speech or writing that advocated the overthrow of government by force or violence. But the Court’s ruling that Benjamin Gitlow could challenge the New York law under the First Amendment took the first step toward the “incorporation” of its provisions into the liberty guarantee of the Fourteenth Amendment. The Gitlow decision turned out to be more revolutionary in its impact on constitutional doctrine than Gitlow’s own appeals to proletarian uprisings against capitalism. Having imposed the free-speech and free-press guarantees of the First Amendment on the states, the Court cleared the path to the incorporation of its remaining provisions—including the religion clauses—into the Fourteenth.
The Court, however, did not take its next judicial step toward full incorporation of the First Amendment until 1940, fifteen years after the Gitlow decision. But this was a giant step toward the protection of religious minorities from the hostility of legislative majorities in the states and local communities. One religious minority in particular sought judicial protection against laws that hindered or even banned its distinctive brand of public evangelism. Members of the Watchtower Bible and Tract Society, better known as Jehovah’s Witnesses, spread their apocalyptic message of an imminent War of Armageddon through door-to-door solicitation and street-corner preaching. Their denunciations of “false” religions, especially the Catholic Church, provoked a raft of state and local laws designed to prevent the Witnesses from knocking on doors and handing out “tracts” that portrayed the Pope as the Antichrist.
Beginning in 1938, the Supreme Court handed the Witnesses the first in a string of legal victories, first ruling that towns could not require permits to distribute literature in public places, and then holding, in 1939, that Witnesses could not be singled out in enforcing “anti-littering” laws. These early decisions, however, rested on the Free Speech and Free Press clauses of the First Amendment that Gitlow had imposed on the states. But in 1940, the Court formally incorporated the religion clauses into the Fourteenth Amendment. Newton Cantwell and his sons, Jesse and Russell, had been arrested for distributing pamphlets attacking the Pope in a heavily Catholic neighborhood in New Haven, Connecticut. The Cantwells requested donations from those who took their literature, but did not insist on payment. Responding to complaints by outraged Catholics, the police charged the Witnesses with violating a state law barring the solicitation of money “for any cause” without a “certificate of approval” from the state’s Public Welfare Council, whose secretary was required to determine whether “the cause is a religious one” or a “bona fide object of charity.”
Justice Owen Roberts spoke for all nine justices in striking down the Connecticut law. Giving a public official the power to decide which causes are religious deprived the Cantwells of “their liberty without due process of law in contravention of the Fourteenth Amendment,” Roberts stated. That amendment, he added, “has rendered the legislatures of the states as incompetent as Congress” to pass laws “respecting an establishment of religion or prohibiting the free exercise thereof.” Although Roberts based his opinion in Cantwell v. Connecticut on the Free Exercise Clause, the Court’s ruling effectively incorporated both religion clauses into the Fourteenth Amendment. It bears mention that no religious group has done more than the Witnesses in protecting the rights of every other denomination, including Catholics, to preach and proselytize without fear of official restriction. Between 1938 and 1955, often assisted by ACLU lawyers, the Witnesses took forty-five cases to the Supreme Court and won thirty-six; not even the NAACP—victorious in twenty-nine cases during those years—matched this record.
The Supreme Court’s first application of the Free Exercise Clause to the states in the Cantwell case began with a street-corner clash between members of a small and unpopular religious minority, the Jehovah’s Witnesses, and those who belonged to a much larger and more influential denomination, the Roman Catholic Church. The divergent histories of these mutually hostile religions help to shape our understanding of the Court’s later rulings in Establishment Clause cases. The Witnesses, of course, were not among the dissenting sects the First Amendment’s framers intended to protect from being taxed, as Madison said, even “three pence” to support the established churches of his time. Catholics, however, along with more numerous and more resistant Baptists, were taxed to pay the salaries of ministers who denounced their “popish” beliefs.
When the Constitution was ratified in 1789, Catholics numbered less than 1 percent of the nation’s four million inhabitants. The first report on the church’s membership, in 1785, estimated the Catholic population as twenty-five thousand, of whom sixteen thousand resided in Maryland and seven thousand in Pennsylvania. Outside these more tolerant states, Catholics were not only few in number but also generally barred from voting; even Maryland denied the ballot to Catholics. Before and after the American Revolution, noted politicians voiced the prevalent anti-Catholic sentiment. Samuel Adams said in 1768, “Much more is to be dreaded from the growth of popery in America, than from the Stamp Act, or any other acts destructive of civil rights”; John Jay—later the nation’s first chief justice—proposed in New York a prohibition against Catholic office-holding. In 1788, the New York legislature approved a law requiring public officials to renounce foreign authorities “in all matters ecclesiastical as well as civil,” effectively barring Catholics from holding office.
The early ripples of Catholic immigration to the American colonies became a tidal wave in the nineteenth century. Driven from their homes by the Great Famine in the 1840s, more than a million Irish peasants—most of them illiterate and unskilled—crossed the Atlantic and crowded into the urban slums of Boston, New York, Philadelphia, and other Eastern cities. To say the least, these Irish Catholics were not welcomed by the “native” Protestants with whom they competed for low-wage jobs and shoddy housing. Today’s religious wars, and even those of the colonial era, pale in comparison with the violence that erupted in 1844 over the issue of Bible-reading in Philadelphia’s public schools. The story of this bloody episode in America’s religious history—one example of many others during the nineteenth century—deserves a brief recounting here, for the light it sheds on more recent conflicts over religion in public schools.
Meet the Author
Peter Irons is professor of political science at the University of California, San Diego. He is the author of five previous award-winning books. The most recent, A People's History of the Supreme Court, was awarded the Silver Gavel Certificate of Merit by the American Bar Association.
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