>Striking the balance between establishment and hostility
By Charles Shreffler
The First Amendment addresses some of our most fundamental individual freedoms: religion, speech, press and assembly. Regarding religion, it states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In 1789, James Madison proposed a bill of rights which included an earlier version of the First Amendment. During Congressional debate on his bill, as recorded in the Annals of Congress, Madison stated 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.”
The Establishment Clause was originally enacted to prevent the federal government from imposing a national religion on the states. When the First Amendment was enacted, half the states had some form of official religious establishment. The First Amendment simply preserved the status quo by guaranteeing to the states that the federal government could not establish a national church.
In this context, it should be clear that the purpose of the Establishment Clause was not to remove religion from the public square. The prohibition against establishment did not, and does not, mean government hostility against religious expressions. As the U.S. Supreme Court observed in 1952, “We are a religious people whose institutions presuppose a Supreme Being.” There is no requirement in the Constitution 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.”
The Founders recognized that religious belief was a requirement for self-government. In order for this society to survive as a self-governing democracy, the Founders understood that individual citizens themselves needed to be self-governing. George Washington, in his Farewell Address, stated “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. …. And let us with caution indulge the supposition that morality can be maintained without religion.” The Founders’ commitment to democratic self-government required of each citizen a level of public virtue beyond that required of the subjects of any monarchy.
Washington eloquently expresses the rationale underlying the Constitution’s accommodation of religion. The First Amendment removes from civil government the power to impose a particular set of religious beliefs or nonbeliefs. In balance with that, the First Amendment implicitly acknowledges that personal morality is fundamental to democratic self-government. Because religion helps foster personal morality, society’s best interest is to accommodate religion.
The phrase “wall of separation between church and state” was originally written by Thomas Jefferson in an 1802 letter written to the Danbury Baptist association:
“Believing with you that religion is a matter which lies solely between man and his God Ö 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.”
Jefferson’s “wall of separation” did not imply government hostility toward religion. It simply acknowledged that civil government cannot restrict citizens’ religious beliefs. Today, the phrase “wall of separation between church and state” evokes strong sentiments from all corners. For evangelical Christians, the phrase may be shorthand for judicial hostility toward religion. For atheists, the phrase may be shorthand for mandated removal of religious references from civic places. Both sides in this debate feel they are on the defensive. Both sets of concerns are legitimate; both are balanced by the First Amendment’s prohibition of establishment and protection of free exercise.
Does the First Amendment require the separation of church and state? That depends on the definition given to this grand phrase. Does it mean government-sanctioned hostility toward religion? Unequivocally, no, the First Amendment does not require this. Does it mean the Constitution does not permit either governmentally established religion or government interference with religion? Yes, such separation is healthy for both the church and the state.
The Founders recognized that the private virtues instilled in citizens by religious belief were an indispensable foundation of the public virtue required for democratic self-government. That is a truth for our day as well.
Charles R. Shreffler is a local attorney and University alumnus. Please send comments to [email protected]
Our Government cannot favor believers or nonbelievers
By Edward Tabash
The framers of our Constitution intended to develop a system in which government could not favor the believer over the nonbeliever. The goal was a society in which, in the words of Supreme Court Justice Sandra Day O’Connor, government cannot treat us differently based upon the god or gods we worship or don’t worship.
James Madison, who was to become the fourth president of the United States, was the main author of the First Amendment in 1789. Four years earlier, he had written a strong opposition to proposed legislation in Virginia that would have taxed people for the support of the clergy, generally. A year later, he and Thomas Jefferson, the future third president of the United States, introduced the Statute for Religious Freedom into the Virginia Legislature. This measure required full equality for all points of view on matters of religion and prohibited the state from discriminating against anyone because of either belief or nonbelief.
In 1787, Jefferson, who was Madison’s principle mentor and ally on church/state separation, wrote, “It does me no injury for my neighbor to say there are 20 gods or no god. It neither picks my pocket nor breaks my leg.”
When the original Constitution, even before the Bill of Rights, was composed in 1787, it had only one reference to religion, a negative one. Article VI, Clause III, prohibited any religious test for public office.
In June of 1789, Madison introduced the first draft of the First Amendment into Congress. It 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.”
Even though Madison had already developed a track record showing his commitment to strict government neutrality in matters of religion, the final version of the First Amendment, emerging at the end of September, 1789, read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Thus, Madison’s language was strengthened by both Houses of Congress to prohibit any law that would even show respect to an establishment of religion.
In response to the argument that our constitutional system was meant to establish a Christian nation, or a nation that can favor believers, generally, over nonbelievers, we have strong contrary history. On Sept. 3, 1789, the Senate, in deliberating on the First Amendment, rejected two proposals. Each of these would have only prohibited favoring one religion over others. Thus, the First Congress had ample opportunity to frame a First Amendment that would have only prevented government from favoring one religion over others. Instead, we were given language that does not allow any law respecting an establishment of religion.
In their subsequent writings, both Jefferson and Madison reinforce their commitment to strict separation, thus shedding further light on their true intentions during the 1780s. Jefferson, as president, refused to issue any Thanksgiving proclamations. Madison later wrote that he thought that paid chaplains in Congress were unconstitutional and further opposed tax exemptions for property owned by religious institutions.
The evidence clearly shows the intent to form a nation in which government cannot favor believers over nonbelievers. The opposite would be horrendous. Imagine a society in which you would be a second-class citizen just because you did not subscribe to any supernatural belief system.
Today, the religious right seriously threatens our liberties. Whether the issue is the right of gay people to express romantic love for each other, the right to reproductive freedom and sexual privacy generally, the right to read the books and see the films of our choice, the right to pursue the cure of major illnesses through stem cell research, or the right to be free from religious coercion in public schools, if we lose the separation of church and state, we will lose our freedom.
An America in which government must treat the believer and nonbeliever equally is a fair and just nation.
Edward Tabash is an attorney on the Board of Trustees for Americans United. Please send comments to [email protected]