The framers were
well aware that religion had been a source of
conflict for centuries, from Roman mistreatment and
prosecution of Jews and Christians, through the
Crusades, thru endless conflict in Europe between
Catholics and Protestants, to the prosecution of
religious dissidents in the American colonies. As
James Madison put it, “Torrents of blood have been
spilt in the old world, by vain attempts of the
secular arm to extinguish Religious discord, by
proscribing all difference in Religious opinions.”
Madison thought he had a better idea. He had
his views, shaped by the Enlightenment mainly, but
others involved in the process of enshrining
protection for religious liberty in the Constitution
had other ideas. Four Main Views
of Religion and State Issues in the 1700s Religious views of the period can
be divided roughly into four groups, who sometimes
used the same words and phrases to mean different
things, complicating the picture. The
four ways of thinking about religion were: Puritan
views, Evangelical views, Enlightenment views, and
Civic Republican views. Puritan views The New England Puritan tradition
saw the church and state as two institutions serving
the same Godly mission. The
church was to preach the word of God, administer the
sacraments, and tend to the needy. The
state existed to enforce the law and promote virtue
and proper religious behavior. For
Puritans, separation of church and state meant a ban
on religious authorities serving on juries, holding
political office, or endorsing candidates. State
officials, on the other hand, could not interfere with
ecclesiastical conduct or perform any functions of the
clergy. Separation for Puritans did not include bans
on material aid to churches. Also
allowed were Sabbath day laws, laws requiring church
attendance, and basic adherence to the tenets of
Puritanism. Evangelical views Evangelical views emerged during
the Great Awakening of 1720 to 1780. Like
the Puritans, the Evangelicals supported the
separation of church and state, but went beyond the
Puritans in their desire to protect the liberty of
conscience for individuals and freedom for all
religious groups to exercise their beliefs as they
desired. They
believed that a plurality of religions should be
allowed to co-exist and that it was up to God to
decide which would flourish and which would not. Evangelicals,
unlike Puritans, did not support material aid from the
state to churches and opposed other laws restricting
freedom of conscience that were tolerated—and even
advocated—in Puritan New England. Enlightenment views Enlightenment thinkers such as
John Locke and David Hume developed political theories
that generally supported the Evangelical views on
religious separation and free exercise of religion. Framers
such as Thomas Jefferson and Benjamin Franklin were
American spokesmen for Enlightenment views. The
main focus of Enlightenment thinkers was less on
theology and more about sparing the state from
religious intrusion into its sphere of concern. They
generally believed in strict separation of church and
state and argued that religious grounds and arguments
should not be the basis for civil laws. James
Madison put the argument this way: “A perfect
separation between ecclesiastical and civil matters”
is the best approach because “religion and government
will both exist in greater purity, the less they are
mixed together.” Civic Republican views Civic Republicans was a group that
included framers such as George Washington, John
Adams, Oliver Ellsworth, and James Wilson. Their
views were in some ways more allied with the Puritan
tradition than with Evangelical views. Although
they shared the view with Evangelicals and
Enlightenment thinkers that religious liberty ought to
be protected, and rejected the idea of a theocracy,
but they did believe, like the Puritans, that the
state should try to imbue its citizens with a proper
ethics that was largely consistent with Puritan (and
more generally, Protestant notions) of what good
ethics should be. George Washington expressed the view
this way: “Religion and Morality are the essential
pillars of civil society.” Government ought to, in the
view of Civic Republicans, promote honesty, diligence,
patriotism, love of God, and public spiritedness. The
Civic Republicans saw no problem with public prayers
by state officials, the appointment of chaplains, or
enforcement of a religiously based morality through
law. The First
Congress Debates the Religion Clauses in the
Proposed Bill of Rights, 1789 Next Page Other Religion Clause Topics: Prayer in the Public Schools Financial Aid to Religious Schools Theocracy Issues: Looking for Secular Purposes Religious Symbols in Public Places Student-Initiated Religious Speech Laws Burdening Religiously-Motivated Conduct |
(In
Marsh v Chambers, the Court uses an originalist
analysis to answer the question of whether
prayers to open legislative sessions violates
the Establishment Clause. The Court looks
to the remarks of framers and to the practices
of the First Congress.) Ernie Chambers, the legislator who challenges prayer in the Nebraska Legislature 1. Note that both the
majority and the dissent employ originalist
arguments in Marsh. Which side has
the stronger case in your opinion?
Questions2.. If the Court in Marsh applied the Lemon test, would the practice of beginning legislative days with prayers be constitutional? Do prayers serve the secular purpose of solemnizing legislators and making them think about ethical and public policy considerations that ought to guide their deliberations? Reynolds
v. United States (US, 1878)
The Supreme Court's first encounter
with a Free Exercise Clause claim came when a
Mormon polygamist in the Utah Territory
challenged his conviction under a federal
anti-polygamy law in Reynolds v U. S.
(1878). The Supreme Court rejected the
appellant's claim that his religious beliefs
necessitated, and therefore excused, his
violation of federal law. The Court read
the Free Exercise Clause as protecting
religious beliefs, not religious practices
that run counter to neutrally enforced
criminal laws. Given that the Free
Speech Clause has been read to fully protect
beliefs, if the Court's narrow interpretation
had stood, the Free Exercise Clause would mean
very little. But, as we'll find out, the
Court's views on the meaning of the Free
Exercise Clause changed in the twentieth and
twenty-first centuries.
The History Behind
the Religion Clauses of the First Amendment
Constitution
Annotated (Congress.gov): https://constitution.congress.gov/browse/essay/amdt1_1_1/ Madison’s original proposal
for a bill of rights provision concerning
religion read: The civil rights of none shall be
abridged on account of religious belief or
worship, nor shall any national religion be
established, nor shall the full and equal rights
of conscience be in any manner, or on any
pretence, infringed. The language was altered in
the House to read: Congress shall make no law
establishing religion, or to prevent the free
exercise thereof, or to infringe the rights of
conscience.[1] In the Senate, the section
adopted read: Congress shall make no law
establishing articles of faith, or a mode of
worship, or prohibiting the free exercise of
religion. . . .[2] It was in the
conference committee of the two bodies, chaired
by Madison, that the present language was
written with its somewhat more indefinite
respecting phraseology.[3] Debate in
Congress lends little assistance in interpreting
the religion clauses; Madison’s position, as
well as that of Jefferson, who influenced him,
is fairly clear,[4] but the intent,
insofar as there was one, of the others in
Congress who voted for the language and those in
the states who voted to ratify is subject to
speculation. Scholarly
Commentary The explication of the
religion clauses by scholars in the nineteenth
century gave a restrained sense of their
meaning. Story, who thought that the right of a
society or government to interfere in matters of
religion will hardly be contested by any
persons, who believe that piety, religion, and
morality are intimately connected with the well
being of the state, and indispensable to the
administration of civil justice, looked upon the
prohibition simply as an exclusion from the
Federal Government of all power to act upon the
subject. The situation . . . of the different
states equally proclaimed the policy, as well as
the necessity of such an exclusion. In some of
the states, Episcopalians constituted the
predominant sect; in others presbyterians; in
others, congregationalists; in others, quakers;
and in others again, there was a close numerical
rivalry among contending sects. It was
impossible, that there should not arise
perpetual strife and perpetual jealousy on the
subject of ecclesiastical ascendancy, if the
national government were left free to create a
religious establishment. The only security was
in extirpating the power. But this alone would
have been an imperfect security, if it had not
been followed up by a declaration of the right
of the free exercise of religion, and a
prohibition (as we have seen) of all religious
tests. Thus, the whole power over the subject of
religion is left exclusively to the state
governments, to be acted upon according to their
own sense of justice, and the state
constitutions; and the Catholic and the
Protestant, the Calvinist and the Armenian, the
Jew and the Infidel, may sit down at the common
table of the national councils, without any
inquisition into their faith, or mode of
worship. Probably, Story also wrote,
at the time of the adoption of the constitution
and of the amendment to it, now under
consideration, the general, if not the
universal, sentiment in America was, that
Christianity ought to receive encouragement from
the state, so far as was not incompatible with
the private rights of conscience, and the
freedom of religious worship. An attempt to
level all religions, and to make it a matter of
state policy to hold all in utter indifference,
would have created universal disapprobation, if
not universal indignation. The object, then, of
the religion clauses in this view was not to
prevent general governmental encouragement of
religion, of Christianity, but to prevent
religious persecution and to prevent a national
establishment. Not until the Supreme Court
held the religion clauses applicable to the
states in the 1940s did it have much opportunity
to interpret them. But it quickly gave them a
broad construction. In Everson v. Board of
Education, the Court, without dissent on this
point, declared that the Establishment Clause
forbids not only practices that aid one religion
or prefer one religion over another, but also
those that aid all religions. With respect to
the Free Exercise Clause, it asserted in
Wisconsin v. Yoder that only those interests of
the highest order and those not otherwise served
can overbalance legitimate claims to the free
exercise of religion. . . . 1 The committee
appointed to consider Madison’s proposals, and
on which Madison served, with Vining as
chairman, had rewritten the religion section to
read: No religion shall be established by law,
nor shall the equal rights of conscience be
infringed. After some debate during which
Madison suggested that the word national might
be inserted before the word religion as
point[ing] the amendment directly to the object
it was intended to prevent, the House adopted a
substitute reading: Congress shall make no laws
touching religion, or infringing the rights of
consciencr, [t]here can be little doubt that
this was written by Madison. I. Brant, James
Madison: Father of the Constitution 1787–1800 at
271 (1950). 2 It was at this
point that the religion clauses were joined with
the freedom of expression clauses. 3
The Senate concurred the same day. 4 During
House
debate, Madison told his fellow Members that he
apprehended the meaning of the words to be, that
Congress should not establish a religion, and
enforce the legal observation of it by law, nor
compel men to worship God in any Manner contrary
to their conscience. That his conception of
establishment was quite broad is revealed in his
veto as President in 1811 of a bill which in
granting land reserved a parcel for a Baptist
Church in Salem, Mississippi; the action,
explained President Madison, comprises a
principle and precedent for the appropriation of
funds of the United States for the use and
support of religious societies, contrary to the
article of the Constitution which declares that
‘Congress shall make no law respecting a
religious establishment.’ Madison’s views were
no doubt influenced by the fight in the Virginia
legislature in 1784-1785 in which he
successfully led the opposition to a tax to
support teachers of religion in Virginia and in
the course of which he drafted his Memorial and
Remonstrance against Religious Assessments
setting forth his thoughts. Acting on the
momentum of this effort, Madison secured passage
of Jefferson’s Bill for Religious Liberty. The
theme of the writings of both was that it was
wrong to offer public support of any religion in
particular or of religion in general. Famous
American Trials Raising Issues of Religion Anne Hutchinson, convicted for her religious views in 1637 The
Trial of Anne Hutchinson (1637) Salem
Witchcraft Trials (1692) Carthage
Conspiracy (Joseph Smith Murder) Trial
(1845) 2. If it were to be satisfactorily demonstrated that a majority of those voting to propose and ratify the First Amendment had a narrow view of the application of the Establishment Clause, should the Court reverse course and overrule many of its established precedents in this area? |