Religious-Liberty Law Primer

By Dave Haigler* – March 2005

The Founding Fathers

Most of the current debate over the Founding Fathers and religion is polarized into two extremes, one, that the founders were deists or secularists who intended to found a secular state, and two, that the founders were Christians who intended to establish a Christian nation.

Neither is the case. First, let’s debunk the deist/secularist myth: Many of the settlers in this country in colonial times came here for religious reasons and had religious references in their early governmental covenants. Most of those early settlers were steeped in the culture of the protestant reformation, as evidenced by the Baptists’ Philadelphia Confession of 1825, which was substantially the same as the Presbyterians’ Westminster Confession of Protestant Faith of 1648. From these two creeds a strong inference can be drawn that two groups as disparate as the Baptists and the Presbyterians had substantially-similar orthodox protestant core beliefs well into the 19^th century. To say that the Founding Fathers were primarily deists or secularists flies in the face of this overwhelming cultural/religious trend and directly contradicts the findings of Dr. M.E. Bradford’s A Worthy Company, which shows that 96% of the Founding Fathers were orthodox protestant Christians. Those who argue the secular myth cite the First Amendment’s prohibition on “establishment of religion.” But they ignore the historical context. The 13 original colonies, or at least all but Rhode Island, “had their own religious settlements or establishments, [and] the First Amendment simply barred Congress or the Federal Government from entering into an area where jurisdiction was reserved to the states.”[1] Some have viewed the original purpose to "protect the state religious establishments from disestablishment by the federal government."[2] “Only after the Fourteenth Amendment was interpreted by the Supreme Court to apply to all states was there a denial of the power of the states to make such establishments.”[3]

Second, let’s debunk the Christian nation myth: Although the First Amendment originally prohibited any establishment of religion at the federal level, generic Christian values and traditions were reflected at that level, but no kind of narrow sectarianism was established. Most who argue a “Christian nation” today superimpose their own sectarian assumptions upon the Founding Fathers, but that is the very thing the founders sought to prevent. It was not a hostility to Christianity, however, but rather more of a neutrality in the midst of the various competing sectarian trends. And it does not further a “Christian nation” myth to acknowledge generic Christian values and traditions such as the balance of powers in the three branches of government being modeled after the 3 governmental functions of prophet, priest and king of Old Testament Israel, as Rushdoony argues. Nor does it support “Christian nation” sectarianism to recognize that for a century after the founding, whenever inauguration day fell on a Sunday, it was postponed until the following Monday out of respect for the Fourth Commandment and culture’s recognition of Sunday as the Christian Sabbath.

The most-prevalent “Christian nation” proponents of today are people like David Barton of Wallbuilders, and adherents of Eagle Forum’s Court Watch, whose “Constitutionalist” or “Strict Constructionist” beliefs tend to superimpose Fundamentalism and Dispensationalism upon the Founding Fathers, whereas those sectarian beliefs were not only unknown to the founders, but also were the type of establishment that they opposed. See my article, “Constitutionalism or Chaos,” published Jan. 30, 2005, by the Abilene Reporter News. In its critique of Wallbuilders, the Baptist Joint Committee on Public Affairs makes this same point: “any foray into politics with a decidedly sectarian agenda or a ‘God is on our side’ mentality ought to be tempered with a healthy dose of humility. The Kingdom of God cannot be equated with any political party; religious people of good faith can differ on a number of issues.”

Both extremes in this debate argue over the Treaty of Tripoli of 1796-7, which states “As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of (Muslims),-and as the said States never have entered into any war or act of hostility against any (Islamic) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.” The “deist/secularist” side argues that this proves the U.S. was a secular nation. The “Christian nation” side discount this as an incorrect or misleading statement made only to protect our merchant seamen from capture by Tripoli pirates. We were really a Christian nation, they argue, but in effect we lied about that in order to break a diplomatic impasse. The truth is, the historical context shows us that there were Christian nations at that time which were – like the crusades of the Middle Ages – sending Jihads against Muslim nations. The U.S. entered into this solemn treaty saying it was not that kind of nation. Thus this treaty proves neither side’s point.

“Christian Nation” Court Cases

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), as well as Zorach v. Clauson, 343 U.S. 306, 313 (1952), contain language about our “Christian nation” and “religious people.” However, neither of those cases was about whether we were a “Christian nation” or “religious people.” Those were not issues in dispute that were decided by those cases. They were merely passing references to the status quo of generic Christianity, and neither of which establishes Christianity with any kind of legal preference or sectarian establishment.

Mormon Polygamy Case

Generic Christianity made free exercise of religion a non-issue for many years after the constitution was set up in 1789 but a major precedent was made in 1878 with the Mormon polygamy case, Reynolds v. U.S., which held that the First Amendment's "free exercise" clause protects religious belief, but that "conduct, however religiously motivated, must conform to valid secular laws"[4] This case held that Mormons were not allowed to practice polygamy despite religious beliefs that they could do so.

Conscientious-objector Cases

During the Vietnam era the court grappled with a series of cases involving people who were drafted into the military but who objected to military service on religious grounds without having some kind of formal denominational stand against war. Such a formal denominational stand had been previously required to be a conscientious objector. The court came up with the concept of “sincerely-held religious beliefs” as a “Free Exercise” standard to protect conscientious objectors who came from fringe or minority religious groups, or even no religious group at all. The most famous of these cases involved the Court's reversal of the government's denial of conscientious-objector status to the world-famous and controversial boxer, Muhammad Ali, who in 1964 had changed his name from Cassius Clay and become a Black Muslim. Clay v. United States, 403 U.S. 698, at 710 (Harlan, J., con. op.). The Court drew the line at selective opposition to particular wars, however. One had to oppose all war on religious or philosophical grounds. Thus the concept of “religion” for free-exercise purposes in these cases was very broad.

Balancing Tests

In the last half century a line of cases set up three “purpose-effect-entanglement criteria” to evaluate “establishment” challenges. These criteria are known as the “Lemon” test, from the case of Lemon v. Kurtzman, 403 U.S. 602 (1971). These 3 criteria were that a law would violate the “establishment” clause: if it did not have a "secular purpose," if it tended to promote or inhibit religion, or if it unduly "entangled" the state with a religion. This case involved a law providing a 15% salary supplement to be paid to teachers in nonpublic schools in which teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion. The court held the cumulative impact of the entire relationship arising under the statute involved excessive entanglement between government and religion, and ruled it unconstitutional.

The Lemon test has had difficulties, such as the concern that it sets up secularism as America’s civil religion. That was the holding in Jaffree v. Wallace, 554 F. Supp. 1104 (S.D. Ala. 1983) (Hand, J., presiding), a federal district court decision that reasoned, "The real object of the First Amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical patronage of the national government." (quoting Justice Joseph Story’s Commentaries on the Constitution). However, the 4^th Circuit U.S. Court of Appeals and the Supreme Court soundly rejected Judge Hand’s challenge of the Lemon case’s “secular purpose” test. Wallace v. Jaffree, 472 U.S. 38 (1985).

A less restrictive “establishment” test, such as a "coercion test," merely prohibiting the government from coercing anyone to accept or relinquish a faith, has been suggested, but the court has more recently tended to decide some of these cases involving state spending for religion on the basis of freedom of speech.[5] E.g., the 1995 decision in Rosenberger v. University of Virginia, 515 U.S. 819, which compelled the university to subsidize a religious magazine out of funds collected from students, on the theory that these religious students had the “free speech” right to express religious views.

School Prayer

Perhaps no more confusing and controversial a subsection of religious-liberty law is the issue of school prayer. In “the Regent's School Prayer case," Engel v. Vitale, 370 U.S. 421 (1962), the New York education system had adopted a school prayer to be said before the start of each day's classes. This prayer allegedly promoted good moral character, provided spiritual training, and helped combat juvenile delinquency. The regents wrote a school prayer that arguably was non-sectarian or denominational. In fact, it was defended as so bland that it became known as the "to whom it may concern prayer." The state-prescribed prayer said: "Almighty God, we acknowledge our dependence upon thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

Justice Hugo Black wrote the following for the majority, "[T]he constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government." Ibid., 370 U.S. 421, 426. This decision did not prevent school prayer. Voluntary prayer was not the issue in the case. The court’s opinion took pains to show that fights over state-mandated prayers in England had been one of the reasons that many religious people emigrated from there to start this country. The court reasoned that it was ironic that many of the same religious people who came here to get away from England’s established religion set up established religions in their colonies.

The Engel case provoked a lot of hyperbolic outcry. E.g., Senator Sam Ervin of North Carolina suggested the “Court has held that God is unconstitutional.” Fundamentalist preachers began to claim that prayer had been banned from the schools.

Murray v. Curlett, (1963), involved another state-mandated school prayer and was brought by Madalyn Murray O'Hair, a militant left wing atheist with ties to the American Communist Party. She filed the lawsuit against the school board of Baltimore on behalf of her son, William Murray, a student there who later became a Christian as an adult. The Supreme Court ruled 8 to 1 in favor of abolishing the state-mandated school prayer. Justice Tom Clark wrote for the majority, on "religious freedom, it has long been recognized, that government must be neutral and, while protecting all, must prefer none and disparage none."

Abington Township School District v. Schempp, (1963) involved the Pennsylvania school system complying with a state law that required ten verses of scripture be read every day. The readings were to be without comment and the law allowed any student to request to be excused. This case came to the Supreme Court at the same time as the Murray v. Curlett case, and the court ruled on them together. In a nutshell, the court's ruling said that state-mandated school prayer and Bible reading were violations of the Establishment Clause of the First Amendment.

Adding fuel to the fire of the outcry over Engel’s perceived declaration of God and prayer as unconstitutional, the hue and cry that O’Hair’s supposed communist connection made this a communist plot to establish atheism as our national religion. Ironically, O’Hair’s attempt to emigrate to the Soviet Union was rejected because her son had been born out of wedlock and the Russians found her to be “an immoral woman.”

Forty years later, fundamentalist preachers and their followers are still saying the Supreme Court outlawed prayer and Bible reading in the public schools, but that is not the case. They outlawed state-mandated prayer and Bible reading. They said the state should not dictate our prayers for us or our Bible readings. What’s wrong with that?

Cultural effects

Fundamentalism grew up in the early 1900s as a reaction to the Social Gospel, which had taught that we should focus on the good works of Jesus, like caring for the poor, and not be bothered with the supernatural. Fundamentalists went to the opposite extreme, saying all that was important was the supernatural and the need for people to be “born again” with a spiritual renewal, and they threw out the baby of social works with the bathwater of rejecting the supernatural. See my piece, “The Cultural Irrelevance of Fundamentalism & Dispensationalism.”

The school prayer cases of 1962 and ’63 were the beginning of Fundamentalism’s cultural wake-up call, and the legalization of abortion in Roe v. Wade in 1973 was the end of the snooze alarm.

Having abandoned culture for about 70 years by 1973, Fundamentalism’s only substantial influence was the hyperbole that the court had “abolished prayer & Bible reading” in the public schools. The public perception adopted Fundamentalism’s hyperbole. Many schools did in fact react to this perception by preventing children from praying voluntarily and other voluntary faith-related exercises. These hindrances, not really mandated by the court’s decisions, but publicly perceived as such, have led to a spate of hundreds of court challenges to allow such voluntary exercises, most of which have been successful.

Such hyperbole has also led to many attempts to overcome the perceived ban of prayer and Bible reading by mandated “voluntary” religious exercises, such as in the Jaffree case cited above, which all have failed as, again, a state-mandated religious exercise.

The state of the law now is ambiguous, with voluntary graduation prayers allowed, but voluntary prayer at athletic events not allowed, but this conflict can be reconciled in terms of which ones have reached the Supreme Court and which ones have not.

The Fundamentalist hyperbole has also resulted in some ironic results contrary to the motivations of the Fundamentalist sponsors, such as with the Equal Access law. This law was designed to allow Christian groups to meet in public facilities on the same basis as any other groups. At least four times, the Supreme Court has upheld this law. E.g., in Lamb’s Chapel v. Center Moriches School District (1993), the issue was a Focus on the Family film series that addressed parenting issues from a Christian perspective. The U.S. Supreme Court ruled that the church group had the right to rent a school facility, on the same terms as other groups, to show the film. The “Equal Access Act,” passed in 1984 by the U.S. Congress, states that when a public school district allows secondary students to form extracurricular clubs, it cannot deny Bible or Christian clubs the same opportunity or access to facilities. But there was nothing in the school-prayer decisions that prevented such meetings in the first place, only the public perception driven by the fires of Fundamentalist hyperbole. Now, the Equal Access Act is being used by gay-rights activists and minority-fringe religious groups to wedge their meetings into public facilities as well, to the chagrin of the Fundamentalists who got this law passed. The truth is, they shot themselves in the foot by all the hyperbole over “outlawing prayer and Bible reading.”

The real answer is – Christians should become integrated fully into the culture again and have a credible influence over how public policy is settled, as they did prior to Fundamentalism’s origins in the early 1900s. And they should do so without trying to establish any kind of narrow sectarianism in government, contrary to the Founding Fathers’ original intent in passing the First Amendment.

*Dave Haigler is a religious-liberty and bankruptcy attorney, who serves as Taylor County Democratic Chair. He and his wife Becky are life-group leaders at a local evangelical church, whose leaders have Fundamentalist leanings and thus do not necessarily agree with his political views.