In
view of the extremely inflexible and rigid position which the
U.S. Supreme Court has taken in recent years concerning the
raising up of a "wall" between state government and
religion, it is remarkable how
radically
different the Founders' feelings about such matters were.
Take,
for example, the Founders' approval of religious meetings in
tax-supported public buildings. The Founders had no objection
to using public buildings for religious purposes; that was even
to be encouraged. The only question was [page 683] whether or
not the facilities could be made
available
equally to all denominations desiring them. Notice how Jefferson
reflected his deep satisfaction in the way the churches were
using the local courthouse in Charlottesville, near Jefferson's
home:
"In
our village of Charlottesville, there is a good degree of religion,
with a small spice only of fanaticism. We have four sects, but
without either church or meeting-house. The court-house is the
common temple, one Sunday in the month to each. Here, Episcopalian
and Presbyterian, Methodist and Baptist, meet together, join
in hymning their Maker, listen with attention and devotion to
each others' preachers, and all mix in society with perfect
harmony." 33
One
cannot help asking the modern Supreme Court: Where is the wall
of separation between church and state when the courthouse is
approved for the common temple of all the religious sects of
a village?
Of
course, Jefferson would be the first to require some other arrangement
if all of the churches could not be accommodated equally, but
so long as they were operating equally and harmoniously together,
it was
looked
upon as a commendable situation. The fact that they were utilizing
a tax-supported public building was not even made an issue.
Jefferson
Proposes Accommodations for Religious Instructions at a State
School
Not
only did the Congress of the Founders' day provide in the Northwest
Ordinance that the basic tenets of religion and the fundamentals
of morality should be taught in the public schools, but Jefferson
proposed that the University of Virginia extend its facilities
to the various denominations so that each student could worship
and study in the church of his choice. Jefferson wrote:
"Can
the liberties of a nation be thought secure when we have removed
[by eliminating religious instruction] their only firm basis
-- a conviction in the minds of the people that these liberties
are ... the
gift
of God? That they are not to be violated but with his wrath?"
34
To
encourage religious studies by college students of different
faiths, Jefferson proposed the following:
1.
The responsibility for teaching "the proofs of the being
of a God, the creator, preserver, and supreme ruler of the universe,
the author of all the relations of morality, and of the laws
and obligations these
infer,
will be within the province of the professor of ethics."
35
2.
If the university faculty will also teach "the developments
of these moral obligations, of those in which all sects agree,
[together with] a knowledge of the languages, Hebrew, Greek,
and Latin, a basis will be
formed
common to all sects." 36
3.
Encourage "the different religious sections to establish,
each for itself, a professorship of their own tenets, on the
confines [campus] of the university, so near ... that their
students may attend the lectures
there,
and have the free use of our library, and every other accommodation
we can give them; preserving, however, their independence of
us and of each other." 37
4.
Enable "students of the University to attend religious
exercises with the professor of their particular sect, either
in the rooms of the buildings still to be erected [by each denomination
on campus] [page 684]
or
... in the lecturing room of such professor." 38
5.
Urge students to participate in regular religious exercises
but do so without conflicting with the established schedule
of the university. Said he: "Should the religious sects
of this State, or any of them, according to the invitation held
out to them, establish within or adjacent to, the precincts
of the University, schools for instruction in the religion of
their sect, the students of the University will be free, and
expected to attend religious worship at the establishment of
their respective sects ... in time to meet their school in the
University at its stated hour." 39
Summary
of Jefferson's Views
From
these various documented sources it is apparent that Thomas
Jefferson had a number of clearly defined views which he hoped
would become the traditional American life-style with reference
to religion and the Constitution. Perhaps these views might
be summarized as follows:
1.
The First Amendment prohibits the federal government from intermeddling
in religious matters in any way. It is not to take any positive
action which would tend to create or favor some "establishment
of
religion," nor is it to interfere or prohibit the free
exercise of any religion.
2.
The individual state, however, has the responsibility to see
that laws and conditions are such that all religious denominations
or sects receive equal treatment.
3.
There should be a regularly established policy of teaching the
fundamentals of religion and morality in the public schools.
4.
In addition, there should be an opportunity, on the university
level at least, for each denomination to be invited to build
facilities on or adjacent to the campus where the students of
that particular denomination could be expected to attend regular
worship services and receive instructions in their particular
faith.
5.
Professors might also hold special services or classes of religious
instruction in the rooms assigned to them at the university
in order to accommodate the needs of the students belonging
to their particular faith.
6.
Students studying for the ministry at nearby seminaries should
be allowed to have full access to the resources of the university
library.
7.
However, in spite of all of these efforts to encourage religion
indirectly, there must be no use of tax funds to subsidize any
religion directly.
Jefferson
Sees Great Advantages in Following These Guidelines
By
leaving it exclusively to the states to work out the equal encouragement
of all religions, at the same time giving them no direct subsidy,
Jefferson felt the goals of the Founders would be achieved.
He
felt
there was a need to fill "the chasm" of religious
ignorance which constituted a Inability to society and at the
same time leave "inviolate the constitutional freedom of
religion, the most unalienable and sacred
of
all human rights." 40
Jefferson,
like other leaders among the Founders, seemed anxious to not
only encourage all religious faiths on a basis of equality,
but also to have them develop a spirit of toleration for each
other. In referring to the university campus and its immediate
environs, where all faiths [page 685] would be invited to provide
facilities, Jefferson wrote:
"By
bringing the sects together, and mixing them with the mass of
other students, we shall soften their aspirates, liberalize
and neutralize their prejudices and make the general religion
a religion of peace,
reason
and morality." 41
How
the Courts Began Building a Wall Between Religion and the State
It
is a well-known principle of substantive law that the Constitution
and the law should be interpreted very strictly according to
the original intent of those who created it. As Chief Justice
Roger B. Taney stated in
Dred
Scott v. Sanford, "It [the Constitution] speaks not only
in the same words, but with the same meaning and intent with
which it spoke when it came from the hands of the framers."
42
In
the case of Barron v. Baltimore, 43 Chief Justice Marshall affirmed
that the Bill of Rights in the Constitution was a series of
prohibitions against the federal government to prevent it from
encroaching on the states.
Applying
this to worship, the court's decision meant that there was a
"wall" between the federal government and any "establishment
of religion," just as Jefferson had said.
However,
in the case of Gitlow v. New York, 44 the Supreme Court used
certain provisions in the federal Bill of Rights and applied
them to the states. The court justified this action on the basis
of the Fourteenth
Amendment,
which provides that "no State shall make or enforce any
law which shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any person
of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection
of the laws."
The
opponents of traditional theistic religion and morality saw
the Gitlow case as an opportunity to invoke the power of the
federal courts to build a wall between each of the states and
any form of religious
encouragement,
even though it was provided indirectly. In other words, they
would reverse the Founders' original policy.
The
case of Cantwell v. Connecticut 45 was the first ruling of the
Supreme Court in which the "Gitlow doctrine" was applied
to religious liberty, and Everson v. Board of Education 46 was
the first time the
Supreme
Court applied the "due process" clause of the Fourteenth
Amendment to make the federal wall of separation apply to religious
matters among the individual states.
What
this amounted to was the actual breaking down of the federal
wall set up by the First Amendment so that the Supreme Court
actually usurped jurisdiction over religious matters in the
states and began dictating what the states could or could not
do with reference to religious questions. Without a doubt, there
has been a severe wrenching of the Constitution from its original
First Amendment moorings ever since this new trend began.
The
Supreme Court Prohibits Teaching Religion in Schools
It
is interesting that in the debates over ratification Madison
stated the position of the Founders when he said: "There
is not a shadow of right in the general government to intermeddle
with religion. Its least
interference
with it would be a most flagrant usurpation." 47 Nevertheless,
in McCollum v. Board of Education, 48 the Supreme Court intervened
in a religious [page 686] question. It used the Gitlow
doctrine
to tell a state board of education that it would not allow children,
even with their parents' consent, to take religion classes in
school. The students had been authorized by the board of education
to sign up for these classes, which were being taught by the
representatives of their own particular faith. They then attended
these classes as part of their regular studies, just as Jefferson
had recommended for the University of Virginia. The court ignored
the fact that there was equality of opportunity for any of the
denominations to provide such classes and used the "wall"
doctrine to outlaw use of tax supported
facilities
for the teaching of religion by any denomination. There was
a strong dissent by Justice Stanley F. Reed.
The
Supreme Court Approves "Released Time" for Religious
Education
It
is of further interest that the Supreme Court took its newly
acquired jurisdiction over religious questions in state schools
to announce in Zorach v. Clauson that it was very solicitous
of religion and would
approve
classes in religion during the regular school day, providing
the classes were held separate from any tax-supported property.
Justice William O. Douglas wrote the opinion from the following
frame of reference:
"We
are a religious people whose institutions presuppose a Supreme
Being. We guarantee the freedom to worship as one chooses. We
make room for a wide variety of beliefs and creeds as the spiritual
needs of man deem necessary. We sponsor an attitude on the part
of government that shows no partiality to any one group and
that lets each flourish according to the zeal of its adherents
and the appeal of its dogma." 49
Justice
Douglas went even further to state, "We find no constitutional
requirement which makes it necessary for government to be hostile
to religion and to throw its weight against efforts to widen
the effective scope of religious influence." 50
The
Cultural Vacuum Created by the Court: So-Called "Neutrality"
However,
in the case of Everson v. Board of Education, 51 the Supreme
Court made it clear that neither the federal government nor
a state government could encourage religion in any way. Justice
Hugo L. Black spoke for the court and declared in his opinion,
"Neither a State nor the Federal government ... can pass
laws which aid one religion, aid all religions, or prefer one
religion over another." 52
The
Founders would have heartily endorsed Justice Black's "no
preference" doctrine, but they would, no doubt, have objected
vigorously to outlawing indirect aid for, and encouragement
to, "all religions." In
the
final analysis, it was "all religions" the Founders
had said they were relying upon to undergird society with those
moral teachings which are "necessary to good government
and the happiness of mankind." 53
No
doubt they would have further objected to the court's presumptive
usurpation in taking jurisdiction over a religious question
which had been specifically reserved, by the First and Tenth
Amendments, to the states themselves.
The
Founders seemed fully aware that failure to encourage "all
religions" in their important role of teaching fundamental
morality would leave a void or cultural vacuum in their formula
for a great new
civilization
of freedom and prosperity. It seems that all empirical evidence
of history [page 687] and human experience sustains their position.
Then why did the court take the position it did?
All
of the cases from then until now suggest that the court considered
its position of "neutrality" more fair and more correct
in administering true justice. What some legal scholars are
beginning to point out,
however,
is that the position of so-called neutrality has not achieved
what the court said it intended. It has indeed given "secularism,"
or the emphasis of nonspiritual and nonmoral principles, the
clear advantage of a virtual monopoly in the arena of public
education and the administration of public institutions. 54
The
Supreme Court Outlaws Prescribed Prayers in Schools
In
the case of Engel v. Vitale, 55 the issue was that the New York
regents had prepared a nondenominational prayer for use in the
public schools. The New York Court of Appeals upheld the prayer,
but the Supreme Court once more intermeddled in a religious
question of a state by ruling
that
a nondenominational prayer prescribed by the officials of the
state was "establishing" a religion.
However,
contrary to popular belief, the court did not say that prayers
were unlawful, providing they were voluntary and not prescribed
or set by the state. Nevertheless, this case gave the advocates
of secularism an excuse to push through rulings in many states
that prayer would not be allowed in the schools.
The
Supreme Court Outlaws the Lord's Prayer and Bible Reading in
the Public Schools
In
Abington School District v. Schempp, 56 the Supreme Court ruled
that opening exercises at the high school involving the recitation
of the Lord's Prayer, as well as reading Bible verses, were
unconstitutional. The court rejected the proposition that the
opening exercises had a secular purpose, namely, the "promotion
of moral values, the contradiction to the materialistic trends
of our times, the perpetuation of our institutions and the teachings
of literature."
It
was pointed out to the court that "unless these religious
exercises are permitted, a 'religion of secularism' is established
in the schools," but the Court rejected this argument.
57
At
this point it appears that for all intents and purposes the
design of the founding Fathers to have the public schools teach
the fundamental principles of religion and morality is dead.
Need
for an Amendment
The
intent of the Founding Fathers (and the desires of the vast
majority of American parents) to have these ideals taught in
the schools will probably never be restored without a constitutional
amendment, which must further define the right of the states
to have exclusive jurisdiction over the determination of religious
questions. At the same time it would undoubtedly be the desire
of the overwhelming majority of Americans that the states be
required to give equal encouragement to all religions on a non-preference
basis.
Daniel
Webster Describes the Founders' Traditional Goal
In
our own day of accelerating rates of crimes of violence, narcotics
addiction, billion-dollar pornography sales, hedonistic sexual
aberrations, high divorce rates, and deteriorating family life,
the American people might well recall the stirring words of
Daniel Webster, which he spoke to the New York Historical Society,
February 22, 1852:
[page
688]
"Unborn
ages and visions of glory crowd upon my soul, the realization
of all which, however, is in the hands and good pleasure of
Almighty God; but, under his divine blessing, it will be dependent
on the character and virtues of ourselves and of our posterity....
If we and they shall live always in the fear of God, and shall
respect his commandments ... we may have the highest hopes of
the future fortunes of our country.... It will have no decline
and fall. It will go on prospering.... But if we and our posterity
reject religious instruction and authority, violate the rules
of eternal justice, trifle with the injunctions of morality,
and recklessly destroy the political constitution which holds
us together, no man can tell how sudden a catastrophe may overwhelm
us, that shall bury all our glory in profound obscurity. Should
that catastrophe happen, let it have no history! Let the horrible
narrative never be written!"
Unfortunately,
unless the present generation of American leadership returns
to fundamental values, that history is being written right now.
