Supreme Court arbitrarily took separation of church and state much too far

Michael Gaynor
July 19, 2005


Fiorello LaGuardia, the legendary New York City mayor, acknowledged that when he made a mistake, it was "a whopper."

The same is true of the United States Supreme Court.

Which, unfortunately, as an institution, has been loathe to admit its monumental mistakes: ruling "separate but equal" to be constitutional, creating a constitutional right to abortion, and elevating itself above God in what is supposed to be "one nation, under God" that trusts "in God," by misruling that the United States and the States must be neutral as between religion and irreligion and refrain from supporting "all religions."

Plainly, the United States Supreme Court, by judicial fiat, grossly exceeded the institutional separation between church and state in a way that the religious men of various denominations who drafted and ratified the United States Constitution never envisioned.

Travesties of justice in the name of separation of church and state that would outrage the people who founded the United States of America, drafted its Constitution and adopted its Bill of Rights have followed, from the banning of voluntary nondenominational prayer in public schools to Ten Commandments displays in courthouses.

Did the United States Constitution really require complete separation of church and state, prevent the United States government from acknowledging God and supporting religion generally, and compel the United States government and state governments to be strictly neutral as between religion and "irreligion"?

The answer is no.

The contrary claims are secular extremist myths that need to be exposed.

In 1947, in Everson v. Board of Education, the United States Supreme Court disregarded history and misconstrued the Constitution at the urging of the secular extremist minority and the expense of the overhwehelming religious majority in ruling that neither federal nor state governments "can pass laws which aid...all religions...."

In so ruling, the Court presumptuously substituted its personal view for the views of those who founded the United States, wrote and ratified the Articles of Confederation and the Constitution, and adopted the First Amendment and misued a much-quoted letter in which Thomas Jefferson had described the First Amendment as "building a wall of separation between church and state."

The First Amendment did not create a wall between church and state. It prohibited Congress from making a law "respecting an establishment of religion, or prohibiting the free exercise thereof."

The kind of separation that was intended is suggested by Pierre L'Enfant's plan for a national cathedral. In 1791, Congress selected the site to be the capital of the United States. George Washington, previously President of the Constitutional Convention and then President of the United States, then commissioned L'Enfant to design an overall plan for the future seat of government. That plan included a church "intended for national purposes, such as public prayer, thanksgiving, funeral orations, etc., and assigned to the special use of no particular Sect of denomination, but equally open to all." The Founders and Framers favored governmental neutrality among denominations, but they never expected government to be barred from supporting religion generally to please a tiny Godless minority.

Traditional nonsectarian acknowledgements of God by federal or state government, including the inclusion of "under God" in the Pledge of Allegiance and "In God We Trust" on United States currency, the recitation of a voluntary nondenominational prayer in a public school, and the display of a Ten Commandments monument in both federal and state courthouses, were intended to be constitutionally permissible, and coercive or sectarian governmental acts that establish a religion or prohibit or penalize the free exercise of religion (or personal choice NOT to be religious) were intended to be unconstitutional.

'Construing the Constitution'

In 1823, Thomas Jefferson opined in a private letter how constitutional meaning should be ascertained: "On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it passed."

The initial United States Supreme Court decisions adopted the same approach.

In M'Culloch v. Maryland (1819), Jefferson's cousin, Chief Justice John Marshall, noted that the United States government "is acknowledged by all to be one of enumerated powers," but that "there is no phrase in [the Constitution] which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described."

In Gibbons v. Ogden (1824), Marshall endorsed natural construction of the Constitution, since "the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they said."

In Ogden v. Saunders (1827), Marshall noted that "the intention of the instrument must prevail" and "be collected from its words," "its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended," and "its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them nor contemplated by its framers...."

'Contemplation of the Framers'

The Founding Fathers were Christians, not secular humanists. John Adams wrote in 1813 that "[t]he general principles, on which the Fathers achieved independence, were . . . the general principles of Christianity . . . ." America's greatest chief justice, John Marshall, proclaimed in 1833: "The American population is entirely Christian, and with us Christianity and Religion are identified. It would be strange indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations to it." Marshall's statement was not literally true, of course; Americans were not even then entirely Christian. But Marshall's point was that Americans were a people of faith and their government should recognize it.

When Jesus spoke of rendering unto Caesar that which is Caesar's and rendering unto God that which is God's, He was identifying separate obligations of individuals in society, not requiring complete separation of church and state or absolving states of their duty to God.

This was generally understood and accepted. Therefore, the Declaration of Independence, the Articles of Confederation, and the Constitution each recognized God and the Articles and Constitution were dated "in the year of our Lord."

'Scope of First Amendment'

The First Amendment did not prohibit government from acknowledging God or supporting religion generally. Only coercive or sectarian governmental acts that establish a particular faith or prohibit the free exercise of any faith were barred. And Jefferson's "wall" was to keep government from interfering with that religious expression without excluding religious expression from public life.

Justice William Douglas put it well in Zorach v. Clauson (1952), in upholding a public school "released time" program: "We are a religious people whose institutions presuppose a Supreme Being. . . . When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. . . . [W]e 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."

Now Chief Justice William Rehnquist rightly asserted in dissent in Wallace v. Jaffree (1985) that the establishment clause was intended only to stop the federal government from establishing a national church or preferring one sect over another, and certainly not to require governmental neutrality between religion and "irreligion."

Justices Scalia and Thomas agree.

So did the leading legal commentators of the nineteenth century.

Thomas Cooley, in Constitutional Limitations, stated that recognition of God and general support for religion were governmental prerogatives: "[T]he American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires. . . . Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws."

Cooley concluded, "No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures; or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation."

Cooley emphasized that government needs to "foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." "Public recognition of religious worship," he wrote, is based on "the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction."

This attitude prevailed when the first Congress passed both the First Amendment and the Northwest Ordinance of 1787, which explicitly integrated religion and public education. Article III of the ordinance states: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Two years later George Washington warned, "Let us with caution indulge the supposition, that morality can be maintained without religion."

The signers of the Declaration of Independence, the Framers of the Constitution, and the members of the first Congress and the state legislatures that enacted and ratified the First Amendment humbly recognized their dependence upon God. In lamenting the absence of daily prayers during the Constitutional Convention, Benjamin Franklin asked: "[H]ow has it happened . . . that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? . . . [H]ave we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth — that God governs in the affairs of men. . . . We have been assured . . . in the sacred writings, that 'except the Lord build the House they labour in vain that build it.' "

The Declaration humbly appeals to "the Supreme Judge of the world" and proclaims "a firm reliance on the Protection of Divine Providence," as well as referring to "the Laws of Nature and of Nature's God" and a "Creator" who endowed "all men . . . with certain inalienable Rights."

The Constitution not only refers to "the Blessings of Liberty" in its preamble, but excludes Sundays in calculating the time in which a presidential veto must be issued. Further, it deliberately integrates religion into public affairs, while not compelling the unreligious to practice faith, by providing for oaths or affirmations. If the Framers had intended to separate church and state completely and embrace secularism, then they would have provided only for affirmations.

The First Amendment was adopted to afford atheists a right to not recognize God, to be sure, but not to give them a right to preclude government from doing so or from supporting religion generally — as the seminal Commentaries on the Constitution (1833) by Justice Joseph Story show.

Justice Story explained that the First Amendment's object was "to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment...." "[T]he duty of supporting religion," Story emphasized, was "very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner which, they believe, their accountability to him requires."

Story conceived of governmental support for religion as a responsibility, rather than a prerogative, and not less important than respect for private religious beliefs. In his words, "it is the especial duty of government to foster" religion, and this duty is "wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one's conscience."

The current notion that public recognition of God and support for religion generally must yield to "the right of private judgment" surely would have been absurd to Justice Story. In his view, "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."

According to Justice Story, "Probably at the time of the adoption of the Constitution, and of the amendment to it . . . , 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," and that "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 Supreme Court's Egregious Error'

This generally unappreciated historical record reveals the error of the Supreme Court's ways. In its zeal to purge the public square of endorsements and even accommodations of religion, the Court has construed the Constitution's ban on "an establishment of religion" much too broadly and thereby paved the way for lower courts to strike down the Pledge of Allegiance and to order the removal of a Ten Commandments monument from the lobby of an Alabama courthouse (while leaving undisturbed the United States Supreme Court's own Ten Commandments display).

After World War II, the United States Supreme Court arbitrarily extended the First Amendment's establishment clause, by judicial invention, to separate church and state in a way that inhibits the free exercise of religion required by the First Amendment's free exercise clause but provides freedom from religion to the unreligious minority. THAT surely was not contemplated by the men who drafted and ratified the Constitution and the First Amendment, and would not have been comprehensible to them.

America was not conceived of by those men as a theocracy or a secular state, but as "one nation, under God." The notion that under the Constitution the United States government cannot acknowledge God and instead must maintain a strict neutrality between religion and irreligion would have been considered absurd by virtually all the Founders, Framers, members of the First Congress and members of the state legislatures that ratified the First Amendment.

As Justice Stanley Reed related in rejecting the overbroad meaning given to the "Establishment Clause":

"When the First Amendment was pending in Congress in substantially its present form, 'Mr. Madison said, 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.'"

To be sure, the Constitution explicitly proscribed any religious test as a requirement for holding an office or a position of public trust under the United States government. But the Constitution was framed by Christian men who recognized the dependence upon religion of the government created by the Constitution as well as God. Rightly or wrongly, these people strongly believed that religion was essential to good government. As President John Adams put it:

"We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."

Framer Gouvernor Morris explained why: "Religion is the only solid Base of morals and Morals are the only possible Support of free governments." On that basis, Morris called for education to "teach the precepts of religion, and the duties of man to God."

The Continental Congress drafted the Articles of Confederation in 1777. They went into effect in 1781. Article II specified that Congress obtained only those powers and rights "expressly delegated" to it. The only express reference to religion was in Article III, which bound the Confederation to defend any state attacked "on account of religion...." But the Articles did state that "it has pleased the Great Governor of the world [God] to incline the hearts of the legislatures [represented by the drafters] to approve of, and to authorize [them] to ratify the said Articles...."

Notwithstanding the absence of express authority to concern itself with religion, the Continental/Confederation Congress did so without objection. It promoted a nondenominational Christianity. In 1777 the Congress ordered 20,000 Holy Bibles for distribution among the states. It appointed chaplains for itself and the armed forces (in a manner designed to prevent any denomination from monopolizing government patronage), granted public lands to promote Christianity among the Indians, and periodically proclaimed national days of thanksgiving and of "humiliation, fasting and prayer" as the Revolutionary War proceeded. In 1776, it called for the people, "by a sincere repentance and amendment of life, to appease [God's] righteous displeasure, and through the merits of Jesus Christ, [to] obtain his pardon and forgiveness." Six years later, it issued a Thanksgiving proclamation calling on the people "to testify their gratitude to God for his goodness, by a cheerful obedience to his laws, and by promoting, each in his station, and by his influence, the practice of true and undefiled religion, which is the great foundation of public prosperity and national happiness." Earlier that year, it had officially recommended a Bible edition prepared by Robert Aitken (the first English language Bible published in North America) "to the inhabitants of the United States."

The First Congress envisioned an institutional separation of church and state, but it did not expect complete separation of church and state. The state was not to interfere with religion, but religion was expected to be part of public life. The First Congress resolved that the chaplain policy of the prior Congress be continued. It approved the First Amendment's religious clauses to prohibit the establishment of a national church or the disestablishment of any church and to protect the right of conscience of all individuals, not to turn away from God and embrace secular humanism.

In 1789 the First Congress also re-passed the Northwest Ordinance, originally adopted two years earlier under the Articles of Confederation. The first article of that ordinance set forth the guarantee of religious freedom that was intended under the First Amendment as well: "No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory." The third article expressly encouraged public schools, because "[r]eligion, morality, and knowledge [are] necessary to good government and to the happiness of mankind." Patently, religious freedom was conceived of as a shield for all peaceful people and not as a sword for any minority to use to block the government from recognizing God and supporting religion generally.

In the mid nineteenth century, Congress rejected a secular extremist challenge to the constitutionality of the military chaplaincy. After careful study, the Senate Judiciary Committee issued a report explaining the establishment clause:

"The clause speaks of 'an establishment of religion.' What is meant by that expression? It referred, without doubt, to the establishment which existed in the mother country, its meaning is to be ascertained by ascertaining what that establishment was. It was the connection with the state of a particular religious society, by its endowment, at public expense, in exclusion of, or in preference to, any other, by giving to its members exclusive political rights, and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided...."

The report further stated that the Founders were "utterly opposed to any constraint upon the rights of conscience" and therefore they opposed the establishment of a religion in the same manner that the church of England was established. But, the Founders "had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people....They did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of 'atheistic apathy.' Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted."

A similar House Judiciary Committee report explained that "an establishment of religion" was a term of art with a specific meaning:

"What is an establishment of religion? It must have a creed, defining what a man must believe; it must have rights and ordinances, which believers must observe; it must have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests for the submissive, and penalties for the nonconformist. There never was an establishment of religion without all these."

'Washington's First Thanksgiving Proclamation'

The person most likely to know what the First Amendment was intended to mean probably was George Washington, the Father of the Country, President of the Constitutional Convention and first President of the United States under the Constitution.

In 1789, at the urging of Congress, President Washington issued a Thanksgiving Proclamation. It stated that "it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor." There was no caveat to the effect that there was a higher duty to refrain if an atheist claimed that his or her sensibilities would be offended by such actions and he or she would feel like a second-class citizen.

The joint purpose of Washington and the First Congress was "to recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness:" The Pledge of Allegiance had not yet been written, but Washington and the First Congress obviously perceived the United States as a nation "under God."

Accordingly, Washington designated a day for devotion to God, acknowledged God as "that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be," and called upon all Americans to "unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been able to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us."

Washington and the First Congress would have been incredulous to learn that their actions ever would be considered to be unconstitutional. After all, the Constitution had been established to secure "the Blessings of Liberty" and the federal government was calling upon all Americans to "unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations" for the purpose of having God "pardon our national and other transgressions," "enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually," and "render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws discreetly and faithfully executed and obeyed" as well as "to protect and guide all sovereigns and nations (especially such as have show[n] kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best."

'Thomas Jefferson'

In misinterpreting the establishment clause, the United States Supreme Court misused a statement by Thomas Jefferson in an 1802 letter to a Baptist group that "the whole American people...declared that their legislature should make no law respecting an establishment of religion, or prohibit the free exercise thereof, thus building a wall of separation between church and state." Jefferson's much quoted statement has been misinterpreted as a prohibition against government acknowledging God and supporting religion generally instead of only a protection of churches from governmental interference. But the "wall of separation" that Jefferson contemplated was a wall that keeps government from interfering with religious freedom, not a wall that keeps any religious expression out of schools, courthouses and other public places. Jefferson's own preamble to the Virginia Statute of Religious Freedom explicitly acknowledged "Almighty God" as "the Holy Author of our religion" and "Lord both of body and mind."

Jefferson did not envision that the institutional separation he had in mind would ever be expanded to prohibit the United States from making reasonable accommodations to religion and recognizing God on its currency, in its courts or in its classrooms. Jefferson's own actions as President demonstrate that his words were misinterpreted. As President, Jefferson attended voluntary and nondiscriminatory religious services held at the Capitol (as did President Madison). In 1803, Jefferson called on Congress to approve a treaty with the Kaskaskia Indians that provided for the United States to pay a Catholic missionary priest $100 a year. It was not an oversight. Jefferson later recommended two other Indian treaties with similar provisions. Jefferson also extended three times a pre-Constitution act that had designated lands "[f]or the sole use of Christian Indians and the Moravian Brethen missionaries for civilizing the Indians and promoting Christianity." If the United States Supreme Court was right, then Jefferson himself repeatedly violated the establishment clause. But, as the House Judiciary Committee report set forth in detail, "an establishment of religion" requires much more.

The Adamses of Massachusets knew what they were talking about.

John Adams declared that America's independence "ought to be commemorated, as the Day of Deliverance, by solemn acts of devotion to God Almighty. It ought to be solemnized with pomp and parade, with shows, games, sports, guns, bells, bonfires and illuminations, from one end of this continent to the other, from this time forward forever.

"You will think me transported with enthusiasm, but I am not. I am well aware of the toil and blood and treasure that it will cost to maintain this Declaration, and support and defend these States. Yet through all the gloom I can see the rays of ravishing light and glory. I can see that the end is worth more than all the means; that posterity will triumph in that day's transaction, even though we (may regret) it, which I trust in God we shall not."

Samuel Adams was more succinct, but equally enthusiastic and devout:

"We have this day restored the Sovereign to Whom all men ought to be obedient. He reigns in Heaven and from the rising to the setting of the sun, let His Kingdom come."

And John Quincey Adams, on July 4, 1837, the 61st anniversary of the Declaration of Independence, showed that he too expected religious values to inform public policy and religious expression to be welcome in the public square:

"Why is it that, next to the birthday of the Savior of the World, your most joyous and most venerated festival returns on this day.

"Is it not that, in the chain of human events, the birthday of the nation is indissolubly linked with the birthday of the Savior? That it forms a leading event in the Progress of the Gospel dispensation?

"Is it not that the Declaration of Independence first organized the social compact on the foundation of the Redeemer's mission upon earth?

"That it laid the cornerstone of human government upon the first precepts of Christianity and gave to the world the first irrevocable pledge of the fulfillment of the prophecies announced directly from Heaven at the birth of the Savior and predicted by the greatest of the Hebrew prophets 600 years before."

The faithful Founders and Framers probably would revolt against the faithless United States Supreme Court majority if it were within their power!

But there is another solution: President Bush and his successors should nominate judges who are faithful to the Constitution instead of faithless secular extremists who shamelessly claim the mainstream for themselves and ignore the will of the vast majority of Americans.


The U.S. Supreme Court arbitrarily took separation of church and state much too far