Saturday, August 21, 2010

The Historical Development of the Religion Clauses of the Constitution

Historical context is necessary to properly understand the religion clauses of the Constitution. This article will focus on the relevant history accepted and relied upon by the Supreme Court in its cases involving religion.

The history of religion and government in America starts with the colonies. The first colonies were established on land grants that were clear about establishing the Christian religion. For example, the first charter of Virginia granted by King James I in 1606 included the words: "[B]y the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government."

The Mayflower compact in 1620 includes the words: “Having undertaken for the Glory of God, and [the] Advancement of the Christian Faith, and the [Honor] of our King and Country, a Voyage to plant the first Colony in the northern Parts of Virginia.”

During the colonial era, many of the old world practices of religious persecution took root in America. At various times, Catholics, Quakers, Baptists and various minority faiths found themselves persecuted because of their persistence in worshipping God according to the dictates of their own conscience. The various minority faiths were also forced to pay tithes and taxes for government sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by preaching hatred against others.

From the beginning, the Anglican Church was the established church of Virginia. In 1776, Baptists, Presbyterians and Lutherans worked together to pass a provision on religion for the state’s Bill of Rights. The provision as originally drafted by George Mason called for “toleration in the exercise of religion” except when it disturbed the “peace, the happiness, or safety of society.” James Madison, who was 26 years old at the time and had just completed his studies at the Presbyterian College of Princeton, argued that “toleration” applied under a system of “an established Church, and where a certain liberty of worship was granted, not of right, but of grace.” He argued that this right should only yield when the “preservation of equal liberty, and the existence of the State” are “manifestly endangered.” In the end, the legislature adopted the amendment in the following form:

"That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other."

This Declaration of Rights is considered the precursor of both the Free Exercise and Establishment Clauses. Yet Virginia continued its practice of opening legislative sessions with prayer.

Also in 1776, Thomas Jefferson expressed his philosophy on religion when he drafted the Declaration of Independence. The Declaration justified revolution on “self-evidence” rights given by God: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

The movement continued in Virginia to end tax support for Christian teachers and it reached its climax in 1784-86. During this time, James Madison fought to defeat a bill authorizing a tax to support teachers of Christianity in the Virginia General Assembly and pass Thomas Jefferson’s “Bill for Establishing Religious Freedom.” In the process of opposing the first bill, he wrote his historic “Memorial and Remonstrance.” The Remonstrance begins by quoting the beginning of the Virginia Declaration of Rights as a “fundamental and undeniable truth.” Madison then argues that because our duty to God can only be directed by reason and conviction, each person has a right and a duty to worship God according to the dictates of his own reason and conscience. Because duty to God is superior and comes prior to the duty towards civil society, civil society has no authority to legislate in the area of religion. Religion cannot be made subject to the Legislative body because the legislature has a “derivative and limited” power derived from society which does not have authority over man’s duty to God. Any legislative attempt to establish a religion must be rejected because, “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.”

He further argues that it is a contradiction “to the Christian Religion itself” to imply that the religion needs government support. Historically, when the religion was separate from government and even opposed by government it flourished. However, the past fifteen centuries of government established religion has offered up, “[m]ore or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution.” What has been the influence of ecclesiastical establishment on Civil Society? Sometimes they have created a “spiritual tyranny on the ruins of Civil authority.” In many instances they have provided the justification and support of “political tyranny.” Never have they been seen as “the guardians of the liberties of the people.”

In one of his concluding arguments, Madison argues that a public tax to support teachers of Christianity is contrary to the spreading of the “precious gift” of the “light of Christianity.” He explained that “[i]nstead of leveling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defense, against the encroachments of error.”

Madison’s opposition was successful at defeating the bill and in 1786 the “Bill for Establishing Religious Freedom” was enacted which reads:

"Well aware that Almighty God hath created the mind free; … that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; … We, the General Assembly, do enact, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or [burdened] in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief.”

On June 8, 1789, Congress began to consider amendments to the Constitution which ultimately became the Bill of Rights. The day after the First Amendment was proposed, Congress urged President Washington to proclaim “‘a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts, the many and signal favors of Almighty God.’” On September 25, 1789, three days after Congress, including James Madison, authorized the appointment of paid legislative chaplains, final agreement was reached on the language of the Bill of Rights.

With this context in mind, it was James Madison who first proposed the language that ultimately became the religion clauses of the First Amendment. His proposed language 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 pretext, infringed.

This language was referred to a select committee of Congress which included Madison and they revised his proposal to read, “[N]o religion shall be established by law, nor shall the equal rights of conscience be infringed.”

The Committee’s proposal was debated in the House of August 15, 1789. Several representatives thought that the language might be understood in a manner “hurtful to the cause of religion” and might be used to “abolish religion altogether.” One was concerned that it would limit the federal courts to hear claims relating to the legal obligations of religious organizations to pay for a minister. He said that he hoped the rights of freedom of religion could be established without supporting those who believe in no religion at all. Madison responded saying that he understood the words to mean 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.” He said that some of the states were concerned that Congress might use the Necessary and Proper Clause of the Constitution to infringe the rights of conscience or to establish a national religion.

Madison proposed adding the word “national” before the word “religion.” Representatives complained that the word “national” hit on a touchy subject because in the ratification debates a strong feeling was expressed that the Constitution created a federal government, not a national government. The House then voted to alter the language to read: “Congress shall make no laws touching religion, or infringing the rights of conscience.” The next week, they altered the language again to read: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”

On September 3, 1789, the Senate approved the following language of a religion amendment: “Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion.” After some debate the final language was accepted as part of the First Amendment by both the House and Senate and ultimately became part of the Constitution, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

Thomas Jefferson was in France when the First Amendment was passed by Congress and ratified by the States. Madison wrote to him saying that he did not see the importance of the Bill of Rights but because others felt it was important, he was going to support it because it was not going to harm anything. Fourteen years after it was passed by Congress, Jefferson wrote a short courtesy note to the Danbury Baptist Association saying, “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”

Thomas Jefferson was the Rector and one of the founders of the University of Virginia which was established in 1819. The school was completely governed, managed and controlled by the State of Virginia. Yet in his capacity as Rector, he proposed extending an open invitation to all religious sects to establish a center for religious instruction on campus or near it. His proposal was ultimately passed in the form of university regulations in 1824 and Mr. Mr. Madison was one of those who approved it. The regulations stated in relevant part: “[T]he students of the University will be free, and expected to attend religious worship at the establishment of their respective sects” before there regular classes. Thomas Jefferson felt this complete integration of religious and secular education in a non-coercive environment was better for both. In a letter to a friend he commented on his proposal saying: “by bringing the [religious] sects together, and mixing them with the mass of other students, we shall soften their asperities, liberalize and neutralize their prejudices, and make the general religion a religion of peace, reason and morality.”