The CASES

Lee v. Weisman

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Government-Endorsed Religion
Sponsored by the Government that Wrote the Constitution

Before America declared its independence from Britain, the Church of England was the officially established church in many jurisdictions. This fact had long bothered many Baptists and Presbyterians, and they were especially annoyed at state support for the Church of England after we declared our independence from the mother country. Thus from 1776-1785 America disestablished the Church of England. But rather than establish some other church, every state in the Union ended the existence of state churches. Before they would ratify the new Constitution, the states demanded guarantees that their post-Revolution disestablishment would remain untouched by the new federal government. This was the purpose of the First Amendment.

The purpose of the First Amendment was not to terminate America's status as a nation "under God." The purpose was not to make America a secular nation. In 1892 the U.S. Supreme Court declared that the First Amendment protected America as a Christian nation with no established church.

The modern Supreme Court has turned the First Amendment on its head. What originally was designed to keep the federal government from imposing a particular Christian church on the states, is now used to deny the Founders' belief that government is an ordinance of God, that America is a nation "under God," and that America is specifically a Christian nation. Today, the Court holds that all of the Founding Fathers were wrong to endorse Christianity. They were wrong to forbid atheists from saying "so help me God" in a court of law. They were wrong to make any distinction between religion and atheism.

In Allegheny v. ACLU, the Court condemned a nativity scene depicting the birth of Christ based on the "separationist" mythology first set forth in Everson v Bd of Education (1947). In Allegheny, the Court

squarely rejects any notion that this Court will tolerate some government endorsement of religion. Rather, [we] recognize[] any endorsement of religion as "invalid," id., at 690, because it "sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community," id., at 688.

Allegheny County v.Greater Pittsburgh ACLU,
492 U.S. 573, 595 (1989)

By speaking of "true" religion and "false" religion, the Founders clearly endorsed one and relegated the other to at least a "second place." By requiring a profession of faith before allowing anyone to take an oath to God, the Founders made atheists feel like "outsiders." By proclaiming days of prayer and national humiliation, the Founding Fathers implied that those who would not humble themselves before God were "not full members of the political community."

By making polygamy a crime, the U.S. Supreme Court, following Thomas Jefferson, endorsed Christian ethics over non-Christian ethics. By criminalizing acts which are approved by certain South American and Asian religions, The Supreme Court of the 19th century endorsed Christianity and restricted the religious freedom of non-Christian religions. The Decalogue (the Ten Commandments) was the basis of America's legal system, and a Christian interpretation of the Commandments at that.

Recent Supreme Court cases have reversed everything the Founding Fathers believed about America as a nation "under God." As the Court described these cases in its Allegheny opinion:

Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S., at 70 (O'CONNOR, J., concurring in judgment) (emphasis added).

• Accord, Texas Monthly, Inc. v. Bullock, 489 U.S., at 27, 28 (separate opinion concurring in judgment) (reaffirming that "government may not favor religious belief over disbelief" or adopt a "preference for the dissemination of religious ideas");
• Edwards v. Aguillard, 482 U.S., at 593 ("preference" for particular religious beliefs constitutes an endorsement of religion);
• Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion").

Moreover, the term "endorsement" is closely linked to the term "promotion,"

• Lynch v. Donnelly, 465 U.S., at 691 (O'CONNOR, J., concurring), and this Court long since has held that government "may not . . . promote one religion or religious theory against another or even against the militant opposite,"
• Epperson v. Arkansas, 393 U.S. 97, 104 (1968). See also Wallace v. Jaffree, 472 U.S., at 59-60 (using the concepts of endorsement, promotion, and favoritism interchangeably.

The Court in Allegheny said official mention of Christianity violates the First Amendment, just as the Engel Court struck down a school prayer which no more created a denominational establishment than the theistic language of the Declaration of Independence. Justice Stewart, dissenting, pointed out this inconsistency:

I do not believe that this Court, or the Congress, or the President has by the actions and practices I have mentioned established an "official religion" in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation - traditions which come down to us from those who almost two hundred years ago avowed their "firm Reliance on the Protection of divine Providence" when they proclaimed the freedom and independence of this brave new world. [Note 10: The Declaration of Independence ends with this sentence: "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." ]
[370 U.S. 421, 451]

But Justice Stewart was outnumbered by the Everson decision, which had set the basic framework for all subsequent First Amendment cases:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' Reynolds v. United States, supra, 98 U.S. at page 164.
[330 U.S. 1, 15-16]

The Court in Torcaso echoed this mythology:

The power and authority of the State of Maryland thus is put on the side of one particular sort of believers - those who are willing to say they believe in "the existence of God."
[367 U.S. 488, 495]
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers,10 and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.11

(Footnote 11 mentions the religion of Secular Humanism.) Torcaso overturned the beliefs of every single person who signed the Constitution. They believed that the government should distinguish between "religious beliefs or disbeliefs." If a person had no religious beliefs, he would not be allowed to take an oath to God. (They also believed that if the State of Maryland in their state constitution chose to exclude atheists from public life, the federal judiciary had no constitutional power to amend the Maryland constitution.)

The Declaration of Independence was written by and appeals to and endorses those who believe in God. Every State that endorsed the Declaration prohibited atheists from holding public office, and some of them (e.g., Rhode Island) even denied citizenship to atheists.

There can be no doubt that the Founders endorsed Christianity over atheism. They also believed that good government would promote religion, not atheism. Read the words of the Founders.

      Here in the religious-freedom clause of the First Amendment, then, was no philosophe's Deistical declaration, and no Encyclopedist's rationalistic denunciation of Christianity. What the few words of the clause intended to convey was the essence of the article on religion drafted by George Mason for the Virginia Declaration of Rights in 1776, as modified then by Madison:

"That Religion or the duty we owe to our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the free exercise of religion, according to the dictates of conscience, unpunished, and unrestrained by the magistrate, unless the preservation of equal liberty and the existence of the State are manifestly endangered. And that it is the mutual duty of all, to practice Christian forbearance, love and charity toward each other."

      The First Amendment established no "wall of separation" between State and Church; that phrase and that concept appear nowhere in the Constitution, or in any other official national document. Thomas Jefferson, in 1802, wrote a letter to an assembly of Baptists in which he argued that the First Amendment was intended to construct "a wall of separation between Church and State." But though doubtless that is what Jefferson desired from the First Amendment, it is by no means what Congress—and particularly the Senate—had in mind when it passed the Amendment in 1789; nor was the phrase "wall of separation" employed by Madison or any other notable advocate of the Amendment.

      Justice Joseph Story, in his Commentaries on the Constitution (1833), offered a fuller and more adequate explanation of the purpose of this religious-freedom clause. It was adopted, Story wrote, because different sects predominated in different [p.438] states; and

it was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power...Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, 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. 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."[17]

      Careful examination of the opinions of members of the Congress in 1789, and of the public press of that time, confirms Story's opinion: the Americans approved religious toleration, and left the field of religious establishments solely to the separate states; but Americans generally endorsed the idea of a religious foundation for their political order. This stand was reaffirmed by Justice William O. Douglas, distinctly liberal in his principles, in the Zorach case (1952), when he wrote the Supreme Court's majority opinion:

"We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a 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...To hold that government may not encourage religious instruction 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...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."[18]

Russell Kirk, The Roots of American Order, p.436-438.

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