The Supreme Court and Religion in American Life, Vol. 2: From "Higher Law" to "Sectarian Scruples" [NOOK Book]

The Supreme Court and Religion in American Life

PRINCETON UNIVERSITY PRESS

Chapter One

When the first religion case came before the Court in 1815, the justices referred to the Founding Fathers not for constitutional guidance but merely on a legal point, finding that a postrevolutionary Virginia statute had revoked all colonial land grants made to the Anglican Church and placed them under the state, which had then properly and legally sold some of the land to particular congregations. Throughout most of the nineteenth century the Court was far more likely to cite prerevolutionary English cases as precedents than the writings of the Founding Fathers.

Only in the first of the Mormon polygamy cases in 1878 were the intentions of the Founders finally deemed relevant to a case involving the Religion Clauses.

As many justices would later do, Chief Justice Waite recalled that in 1784 the state of Virginia had considered mandating official procedures for the teaching of Christianity but that this had been opposed by, among others, James Madison, and that not only had the bill been defeated but a proposal by Madison and Thomas Jefferson was adopted whereby religious liberty was guaranteed to Virginia citizens. Jefferson later expressed disappointment at the absence of an explicit guarantee of religious freedom in the new Federal Constitution, a provision that Madison was eventually able to obtain.

In 1878, for the first time, the Court quoted the momentous phrase, "Wall of separation between Church and State," which Jefferson used in a letter to a group of Baptists, assuring them that the Constitution did not establish a state church. Waite, for the first time with reference to the Religion Clauses, treated the opinion of the Founders as normative: "Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured."

However, Jefferson had also written that man "has no natural rights in opposition to his social duties," Waite noted, and his conclusion from this was that "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which are in violation of social duties or subversive of good order." He noted that, shortly after enacting its Act Establishing Religious Freedom, the Virginia legislature in 1789 had explicitly incorporated the English law against polygamy, including a provision for the death penalty, thus demonstrating that the Bill of Rights was not intended to protect polygamy.

The Court's first appeal to the will of the Founders, ninety years after the adoption of the Constitution, was therefore dictated by the need to show that it was permissible under the Bill of Rights to restrict certain religious practices.

Returning to the issue in 1889, the Court in the person of Justice Bradley deemed it "sophistry" to argue that it had ever been the intention of the Founders that the Constitution should protect acts that were "abhorrent" and "uncivilized," asking sarcastically "what about thugee and human sacrifice?"

Thus, besides their importance in establishing the principle that there were limits to religious liberty, the Mormon cases were significant in expressing for the first time the Court's view that in matters of religion the intention of the Founding Fathers was to be taken as an authoritative guide in interpreting the Religion Clauses.

In the Holy Trinity case (1892), holding that a federal law prohibiting bringing foreigners into the United States for purposes of employment did not apply to churches, Justice Brewer cast his net much wider than merely the Constitution, going back to the voyages of Christopher Columbus, which had been commissioned under an explicitly religious mandate, and to the establishment of the various English colonies. The Founders were invoked in connection with their reference to "the Creator" in the Declaration of Independence and in the fact that the Constitution (Article I, Section 7) exempted Sunday as a day of official government business. Various state constitutions contained explicitly religious expressions, and the official form of oaths ("so help me God"), legislative chaplains, sabbath laws, and other customs demonstrated the Christian character of the nation, Brewer argued.

But for almost fifty years after the Holy Trinity case, the Court again virtually ignored the thought of the Founders as it sorted out the meaning of the Religion Clauses, failing to allude to the subject in dealing with, for example, public aid to religious institutions or conscientious objection to military service.

In the 1940 Gobitis case requiring Jehovah's Witnesses to salute the flag, Justice Frankfurter made merely a passing reference to the subject, observing that freedom of religion as guaranteed by the First Amendment had never been intended to imply an exemption from general laws binding all citizens.

Three years later, in a case challenging licensing fees imposed on distributors of religious literature, Justice Reed (albeit that his summary was only three paragraphs in length) made the fullest examination to date of the intentions of the Framers with respect to the Religion Clauses.

Several states, he recalled, had objected to the absence of a Bill of Rights from the proposed Constitution, whereupon a bill was drafted. Its chief drafter, Madison, was called upon at one point to explain the meaning of the Religion Clauses, and he stated that they meant that "no religion shall be established by law, nor shall the equal rights of conscience be infringed." Reed then found that there was no evidence Madison intended that this should grant an exemption from taxes. The Founders were well aware of the unpopular taxes that the royal government had imposed on the press, and they would have explicitly banned such fees had they intended to outlaw them.

When, also in 1943, the Court reversed its position with respect to the flag salute, Justice Murphy quoted the Virginia Statute for Religious Freedom as an apt summary of the meaning of freedom of religion.

On the opposite side of the same case, Frankfurter repeated his 1940 claim that the writings of the Founders provided no evidence whatever that religious freedom implied an exemption from generally applicable laws. Jefferson understood, Frankfurter insisted, that religious minorities could be disruptive forces in society and that it "never would have occurred to them [the Framers] to write into the Constitution the subordination of general civil authority to sectarian scruples."

Frankfurter also made an argument with implications vastly wider than the Religion Clauses themselves, when he insisted that the Founders did not intend for the courts to have any role in the legislative process.

In the 1944 case overturning the conviction of the leaders of the I Am Movement for mail fraud, Justice Douglas stated for the majority that the "Fathers of the Constitution" were aware of the variety of religious sects and their propensity for strife, and therefore they fashioned a document providing "the widest possible toleration of conflicting views." Each man was granted the right to worship as he chose and was to be answerable to no one for his beliefs.

The 1947 Everson case laid down the principles of the modern jurisprudence of the Establishment Clause, and an integral part of that jurisprudence was a particular reading of the intention of the Founders. In their various opinions the justices made the most extensive summary of those intentions yet undertaken from the bench.

The Establishment Clause, Black reported in his majority opinion, reflected the determination by "early Americans" to prevent the recurrence of certain "evils, fears and political problems" that existed in colonial times. The immediate background to the colonization of America had been rampant religious persecution in Europe, the use of government power to enforce conformity. But, even though many people came to America to escape such persecution, such occurrences were often replicated in the New World, with Catholics, Quakers, and Baptists, among others, often being subject to discrimination or persecution.

These practices eventually shocked the consciences of many Americans, and the Religion Clauses were enacted to prevent them, Black asserted, and he proceeded to summarize the events leading to Jefferson's and Madison's successful fight to defeat the proposed tax in support of religion, and their enactment of the Statute for Religious Liberty.

The Court, according to Black, had previously recognized that these sentiments underlay the Religion Clauses. Some states at the time practiced religious discrimination, but the Fourteenth Amendment extended to them as well.

In recent years, Black warned, the greatest threat to religious freedom had been attempts to offer some kind of public support to church schools and to introduce religious teachings into public schools. For the first time since 1878, the Court, through Black, now invoked Jefferson's metaphor of the "wall of separation of church and state" as defining the meaning of the Religion Clauses.

Justice Jackson, in dissenting from the majority conclusion that the reimbursement of bus fares to students in religious schools was constitutional, did not find it necessary to refer to the intentions of the Founders.

However, in his own dissent Justice Rutledge addressed an argument often made by critics of strict separationism, when he recalled that Madison intended to prohibit not merely an official state church but any form of public aid to religion. It was the Religion Clauses' aim "to create a complete and permanent separation of the spheres of religious activity and civil authority" by comprehensively forbidding every form of public aid or support for religion. Just as "religion," with respect to its free exercise, was to be understood in the broadest possible sense, so it was to be understood with respect to establishment as well.

Rutledge became the first justice to refer explicitly to the personal views of Jefferson and Madison to explain the meaning of the Religion Clauses. Both, he noted, showed in their various writings that they intended to prohibit all forms of public aid to religion, such aid being subversive of liberty and good order, and Rutledge summarized in some detail the events culminating in Jefferson's Statute for Religious Liberty.

Because of Madison's efforts in the Constitutional Convention, the Virginia struggle, according to Rutledge, became "part of the warp and woof of our constitutional tradition." Madison saw religion as "a wholly private matter" beyond the state's power to support or coerce, and "he sought to tear out the institution [establishment] not partially but root and branch, and to bar its return forever."

Tithes had been the life blood of the colonial religious establishment, and thus it was crucial to the Founders' vision that all such financial support be prohibited. By the time the issue reached the Constitutional Convention, it was so well understood, because of the Virginia debates, that it required little discussion and was readily enacted.

The Everson decision was anomalous in that the majority and the minority agreed broadly on principles but disagreed sharply on their application. For Rutledge the use of tax money to support the busing of children to religious schools was precisely the kind of activity Jefferson and Madison opposed. Religion could not be free unless it was wholly independent of the state. Even indirect aid led to the kind of religious strife that the Founders above all sought to prevent. Rutledge's dissent, even more than Black's majority opinion, laid out the broad arguments concerning the Founders that the later Court would come to accept as virtually self-evident.

In the McCollum case the following year, terminating a program of religious instruction in public schools, Frankfurter, in a concurring opinion, noted that the "wall of separation" was a metaphor that could only be understood historically. Most colonial education had been religious in nature, but Madison's Remonstrance, "an event basic in the history of religious liberty," was called forth in part by a proposal for state support of such education in Virginia. Jefferson's wall was thus to be taken quite seriously, as a line that could not be breached.

Jackson also concurred but found the issues troublesome, threatening as they did to flood the Court with various kinds of divisive questions. In conclusion he predicted that the Court's attempts to deal with these issues would lead to a "'wall of separation between church and state' as winding as the famous serpentine wall designed by Mr. Jefferson for the university [Virginia] he founded."

In his dissent Reed proposed the argument often made by opponents of strict separation-that in referring to an "establishment of religion," the Founders may have meant merely an official state church, which Madison himself had indicated was his intention. Reed reviewed some of the evidence showing that Madison and Jefferson were not always strict separationists.

But in nullifying a state law against sacrilege in 1953, Frankfurter dismissed the importance of the Founders' intentions:

It would startle Madison, Jefferson, and George Mason, could they adjust themselves to our day, to be told that the freedom of speech which they espoused in the Bill of Rights authorizes a showing of the film 'The Miracle' from windows facing St. Patrick's Cathedral in the forenoon of Easter.

The principle of free expression, he insisted, "must be put in historical and legal contexts. The Constitution, we cannot recall too often, is an organism, not merely a literary composition."

But, despite Frankfurter's prestige on the Court, his dismissal was largely ignored. When the Court again began to turn its attention to the Religion Clauses after 1960, it had already sketched out, at least embryonically, a view of the Founders' philosophy, and a reverence for their authority, that would serve as the foundation of the new jurisprudence.

In striking down in 1961 a Maryland law requiring all public officials to affirm the existence of God, Black, speaking for the Court, noted the prevalence of religious persecution in colonial times but also the fact that "wise and farseeing men" had spoken against it and had framed the Constitution to prevent all forms of discrimination.

In upholding sabbath laws the same year, Chief Justice Warren found that the Establishment Clause was not merely designed to protect the free exercise of religion but also reflected Madison's fear that the establishment of religion would lead to tyranny and the subversion of civil authority. However, Warren also argued that the prohibition of commerce on Sundays was not incompatible with the Bill of Rights, as shown by the fact that Madison himself approved a bill for punishing "sabbath-breakers," and at no time was it suggested that this was incompatible with Virginia's Statute for Religious Liberty.

Frankfurter believed that the purpose of the Establishment Clause was to:

assure that the national legislature would not exert its power in the service of any purely religious need; that it would not, as Virginia and virtually all of the Colonies had done, make religion, as religion, an object of legislation. The Establishment clause sought to withdraw the whole subject of religion from the competency of the legislature.

However, Frankfurter too could acquiesce in the Court's judgment, because neither Jefferson nor Madison had regarded the sabbath laws as repugnant to religious freedom.

Justice Douglas dissented in the case, without challenging the majority's reading of the Founders' intentions.

(Continues...)

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Excerpted from The Supreme Court and Religion in American Life by James Hitchcock Copyright © 2004 by Princeton University Press. Excerpted by permission.
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