This front has been extended from the news media into the courts with the recent effort by the A.C.L.U. and others to stop this Congress and the Pres ident from proclaiming 1983 as "The Year of the Bible." While this particular effort has not met with success, these same protagonists have successfully won the fight in the courts to keep the Bible as the Word of God not only out of the public school classroom but off public school grounds altogether.

In the name of freedom from the "establishment of religion," these enemies of true religious freedom call for total exclusion of religion from all public life. That call for total exclusion rejects the original purpose of the Establishment Clause. The first United States Congress, author of the First Amendment of the Constitution, without hesitation asked President George Washington to issue a national declaration of a public day of "Thanksgiving and Prayer." In response, and approximately six months into his first term of office, President Washington issued the first National Thanksgiving Proclamation which reads, in part:

Whereas it is the duty of all nations to acknowledge the providence
of Almighty God, to obey His will, to be grateful for His benefits,
and humbly to implore His protection and favor... Now, therefore, I
do recommend and assign Thursday, the 26th day of November next, to
be devoted by people of these States to the service of that great and
glorious Being... And also that we may then unite in most humbly
offering our prayers and supplications to the great Lord and Ruler of
nations, and beseech Him to pardon our national and other
transgressions.

Both our first Congress and our first president knew that proclamations and other statements that encouraged religion did not constitute an "establishment" of religion prohibited by the Constitution.

On the second battlefront, we face an enemy who, in the name of compelling state interest, seeks to reduce religion and religious liberty to a puny self-centered claim of conscientious objection. Just recently this Congress repealed its fifty year commitment that exempted non-profit organizations from the social security employment tax. Now churches, religious organizations, and other like employers must pay a tax on the "privilege" of hiring people to assist them to proclaim the truth and otherwise to carry out their ministries. Allowing an exemption favoring only a few who are conscientiously opposed to the social security system, Congress, because of a so-called "compelling interest" to find additional money to save a financially ailing social security system, has for the first time in its history levied a direct tax on the churches of America.

This drive toward total control has not been confined to Congress nor to economic matters. In state after state, legislatures have steadily expanded their control over education. Just this year, for example, the Virginia House of Delegates enacted a law extending state regulation of education into the home allowing for only one exception favoring those few students and parents whose religious beliefs require home education without such control. In the name of a "compelling interest" to mold its citizenry as it thinks best, Virginia seeks to capture the hearts and minds of the children from their parents.

Yet in the early history of the American Republic, men like Madison and Jefferson fought for freedom from just this kind of state control. In their famous statements against the efforts in Virginia to establish tax-supported schools, they called for a rule of law that kept man's mind free from the coercive power of the civil authorities. Jefferson's speech before the Virginia General Assembly is illustrative:

Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishment or burdens, or by
civil incapacitations, . . . are a departure from the plan of the
Holy Author of our religion, who being Lord both of body and mind,
yet chose not to propagate it by coercions on either, as was in his
Almighty power to do; that the impious presumption of legislators and
rulers,. who,... have assumed dominion over the faith of
others, setting up their own opinions and modes of thinking as the
only true and infallible, and as such endeavoring to impose them on
others, hath established and maintained false religions over the
greatest part of the world, and through all time; that to compel a
man to furnish contributions of money for the propagation of opinions
which he disbelieves is sinful and tyrranical.

If this war on these two fronts is to be won by those who believe in the heritage of religious freedom left by our forefathers, then we must decisively reject the political and legal faith that today dominates the courts, the legislatures, the executive offices, the media, and the classrooms in America, and return to the faith of our fathers.

RELIGIOUS LIBERTY AND THE FAITH OF OUR FATHERS

At the heart of religious liberty as understood by our nation's Fathers was their definition of religion and the declaration of its jurisdictional immunity from state interference as exemplified by section 16 of the June 12, 1776, Virginia Bill of Rights:

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....

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 alienable
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
However, in those areas where they clearly had

exclusively to God.
jurisdiction, they did not hesitate to make religious preferences.

U.S. ----

As Chief

51

Justice Berger pointed out in Marsh v. Chambers,
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
may not coerce anyone to attend church, to observe a religious
holiday, or to take religious instruction. But it can close its
doors or suspend its operations as to those who want to repair to
their religious sanctuary for worship or instruction.

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

totalitarianisa.

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's 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. Walters, 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

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