manner of discharging it, can be directed only by reason and In his famous "Memorial and Remonstrance on the Religious Rights of Man," James Madison, speaking in opposition to proposed state legislation to levy a tax in order to support teachers of the Christian religion, explained this constitutional text as follows: We remonstrate against said Bill, . . Because we hold it for a fundamental and undeniable truth, 'that religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only be reason and conviction, not by force or violence.' The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men; it is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation to the claims of Civil Society.. This To Madison, and his fellow colleagues (including Jefferson), religious freedom was a God-given right, fixed and recognized by the Constitution. view of religion presupposed a Creator from whom such rights were derived. This creationist world-view, in turn, shaped the definition of religion embraced by Madison and his congressional colleagues in formulating the First Amendment. Hence, to remain true to the original intent of the Framers of the First Amendment, one cannot examine the religious rights guaranteed thereby on the basis of Darwinian, evolutionist methodology. To the contrary, the word "religion" was used to recognize that the Creator had ordained a legal order that pre-existed all civil societies, including the unalienable right to perform those duties owed exclusively to the Creator free from civil government interference. Recognition of this founding faith led naturally to a proper accommodation and even encouragement of those things properly religious. As Justice Stephen Field of the United States Supreme Court pointed out in his opinion in Davis v. Beason, 133 U.S. 333 (1889), some activities fall totally outside the jurisdiction of the civil government. These enjoy the protection of the free exercise clause of the First Amendment. Among the protected areas, to name a few, are opinions and beliefs, worship, evangelization, qualifications of pastors, pastoral counseling, and the tithes and offerings of the people. These are examples of duties owed to God over which Caesar has no jurisdiction because they are matters subject to "reason and conviction" and not to "force or violence" as the 1776 Virginia Constitution reminds us. Early Congresses steered clear from these activities that belonged exclusively to God. As Chief 51 U.S.L.W. 5163 (1983), the same Congress that approved the Bill of Rights authorized the appointment of paid chaplains. Moreover, Article III of the Northwest Ordinance, enacted by Congress on July 13, 1787, included the sentence: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Justice William 0. Douglas' opinion for the U.S. Supreme Court in Zorach v. Clauson 343 U.S. 306 (1952) stands squarely within this early principle: The government...may not make a religious observance compulsory. It As a further example, under guidelines such as these, the government may continue to supply chaplains, to build chapels, and to provide other opportunities for religious worship to members of the armed forces so long as no coercive measures accompany such programs and so long as they are within the jurisdiction of the government to raise, support, maintain, regulate, and discipline those forces. Moreover, the federal government, constitutionally authorized "to coin money," may, therefore, afix the inscription, "In God we Trust", as the official statement of the government's monetary policy, namely, that the people trust in God and not mammon. Given the jurisdictional boundary set by the two religion clauses, the Framers constructed a scheme of civil government which was designed to avoid any conflict between God and Caesar. They allowed no appeal to any "compelling state interest" to justify government interference into any activity that belonged exclusively to God; at the same time, they rejected any argument for "religious neutrality" to prevent government regulation of activities outside that exclusive authority. Thus, a citizen would never be forced to choose between obeying his duty to his Creator or his obligations under the law of the civil authorities. Because the Framers believed that these duties had been forever fixed by an all-knowing and benevolent Creator, they had confidence that America would steer a well-charted course between the Scylla of religious anarchy and the Charybdis of religious totalitarianism. - 7 RELIGIOUS LIBERTY AND THE FAITH OF THE SCHOLARS AND THE JUDGES Beginning with the mid-nineteenth century, America's scholars became increasingly dissatisfied with the legal and political faith of their nation's founders. Under the influence of Darwin's new evolutionary theory about the origin of the universe and of man, American jurisprudence shifted to a new assumption that judges did not discover law, but that they, in fact, made it. This legal philosophy is today's conventional wisdom taught in almost every law school in America. So widely held is this view that Laurence Tribe, professor of law at Harvard, stated with confidence and without discussion in the preface to his treatise on American Constitutional Law: "The Constitution is an intentionally incomplete, often deliberately indeterminate structure for the participatory evolution of political ideas and governmental practices." Under this view, law, having been "liberated" from fixed principles, has become subject to judges who make decisions according to changing social values and changing factual circumstances. The fixed law that originally guaranteed our religious freedoms has been discarded in favor of a new set of evanescent rules invented by judges. Since 1971, the United States Supreme Court has articulated a three-part test governing the constitutionality of religious claims under the First Amendment'. Establishment Clause. Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971). At the heart of this test is the Court's distinction between the "secular" and the "religious." Although the Court has never carefully explained this distinction, it has consistently followed a pattern of decisions that reflects the definition offered by Justice John Paul Stevens in his concurring and dissenting opinion in Wolman v. Waltera, 433 U.S. 263 (1978): distinction between the religious and secular is a fundamental one. from Clarence Darrow's argument in the Scopes case: 'The realm of religion...is where knowledge leaves off, and faith begins. . . "The To quote This evolutionary faith, that the religious freedom clauses separated out two kinds of "subject matters" and allocated one, "science," to the state, and another, "religion," to the church, has led the courts to exclude all God-revealed knowledge from the public school classroom. For example, Justice Tom Clark in Abington School District v. Schempp, 374, U.S. 203, (1963) ruled that the Bible may be taught in the public schools, but only if it is not presented as the Word of God. Following in these footsteps, a lower federal court judge has ruled that the creationist view of the origin of the world and of man may not be taught in the public schools because, based upon revealed truth, it is necessarily religious. McLean v. Arkansas Bd. of Education, No. LRC 81-322 (E.D. Ark. 1982) Moreover, the Supreme Court has held that the posting of the Ten Commandments upon a public school classroom wall violates the Establishment Clause because the first four of those commandments are necessarily "religious," while only the last six could possibly be "secular." Stone v. Graham, 449 U.S. 39, 41-42 (1980). By this decision the Court has suggested that some topics, like belief in God, must be totally excluded from the public school classroom because such a belief is not empirically verifiable. Moreover, the Court has claimed that it must separate the "religious" from the "secular" in order to achieve its own goal of religious neutrality in the public affairs of the nation. That stated goal has invited attacks upon such long-standing practices as legislative and armed services chaplaincies. See, e.g., Marsh v. Chambers, U.S. -----, 51 L.W. 5162 (1983). While the Court has rightfully rejected these efforts to eliminate all religious values from the law, it has pursued its policy of neutrality in the public schools to the complete and total exclusion of this country's Christian heritage from the public schools. A position such as this can be "neutral" only if one adopts the Court's assumption that God need not be consulted in man's search for truth. That was not the faith of our forefathers. This difference of faith has inevitably brought the Court into conflict with the Constitution so that it must disregard the constitutional text and historic meaning of the religious freedom clauses. Thus, Justice Brennan, concluding that the Nebraska legislative chaplaincy practice violated the Establishment Clause, dismissed past presidential practices, past scholarly expositions, and past congressional intentions to the contrary as no longer relevant. Marsh v. Chambers, U.S. 51 L.W. at 5171. Happily, the majority disagreed and sustained the practice, but only after it had refused to apply its own three-part test. While the evolutionary faith of Justice Brennan did not prevail in the Marsh v. Chambers case, his views have dominated "free exercise" cases since he wrote Sherbert v. Verner, 374 U.S. 398 (1963). Armed with the Sherbert formula, namely, that any claim to religious liberty must be subordinated to a "compelling state interest," the Court has sometimes ruled in favor of religious liberty and sometimes against it dependent solely upon its views of "public policy." For example, the Court has ruled in favor of Amish parents who have refused to send their children to school past the eighth grade, but has ruled against an Amish employer who has refused to pay the social security employment tax. Wisconsin v. Yoder, 406 U.S. 205 (1972) and United States v. Lee, 101 U.S. 1051 (1982). While the Court has conceded that both claims were religious, it found the state's interest in preparing a "child for life in modern society" not of such magnitude to require education past the eighth grade when such a child lives in the Amish separated and self-sufficient agrarian community. On the other hand, the Court has found the social security system's need for funds of such a magnitude as to outweigh the Amish claim even when made by those living in that same separated and self-sufficient agrarian community. Rulings such as these are based upon the assumption that the civil government has total jurisdiction over all but a small corner of a few peoples' religious lives that in the Court's estimation will not interfere with important government policies. That is, in fact, the foundation of the Court's recent ruling in the Bob Jones University Case. Indeed, the unstated assumptions of Bob Jones are that tax exemptions are benefits conferred by the civil government, not given by God, and that education belongs to the civil government, not to the people. Both assumptions, if followed in pursuit of the Court's version of "public policy," will inexorably reduce religious freedom in America to that which is found today in the Soviet Union old people may - worship God within the four walls of a church building, but outside those walls a state-endorsed religion of materialism governs everyone. |