Separation of Church and State Law

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The 19th Century Supreme Court interpretation of “separation of church and state”

Jerald Finney
Copyright © January 14, 2012
Left click one of the following link for easy access to all articles on this website: Contents

Note. This is a modified edition of Section V, Chapter 2 of God Betrayed. The author makes some controversial statements regarding not only civil court jurisprudence but also some biblical principles. An honest study of the Word of God brought him to his conclusions. He invites anyone to show him where he is wrong as to his biblical pronouncements. If anyone can do so, then he will publically repent and recant. Likewise, if anyone finds that their presuppositions were wrong, he invites them to repent and recant. How can anyone ever hope to get his individual, family, church, and state government correct without being willing to embrace and promote new light when it comes his way?

The religion clause of the First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof.” What did the authors of this clause of the First Amendment to the Constitution of the United States mean? What was meant by “religion” and “the free exercise of religion” or “freedom of religion?” Was the First Amendment intended to create “separation of church and state?” If so, what was meant by “separation of church and state?” Many Christians have addressed this issue, and most of their debating points have been off base, as have the arguments of secularists. This author traced the history of the First Amendment in Section IV of God Betrayed which is reproduced on this website. Historically, the purpose of the First Amendment was to separate church and state (keep the federal government out of church and churches out of civil government—i.e., the meaning was that the church was not to work under, hand and hand with, or over the federal government.).

The Supreme Court, in the nineteenth century, started out reasonably – not historically or biblically – well on this issue; but in the mid-twentieth century, although not yet removing the original meaning of the First Amendment separation of church and state, the Court moved into another area adding a completely perverted twist to the meaning of “separation of church and state,” thereby turning the First Amendment religious clause into a tool that would be used to remove God from any state activity.

The nineteenth Century Court could have done much better had it gone directly to a complete and non-revised history of relevant facts and to the Bible and not to the views of the “Christian” world for its guidelines. In the nineteenth century, the Supreme Court defined “religion,” “the free exercise of religion,” “freedom of religion,” and “separation of church and state” much differently than does our modern Supreme Court. In 1879, the Court wrote in its opinion in Reynolds v. United States:

“The word ‘religion’ is not defined in the constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the [First Amendment to the United States Constitution] was adopted. The precise point of inquiry is, what is the religious freedom which has been guaranteed” (Reynolds v. United States, 98 U.S. 145, 162 (1879))? (Bracketed material added by author.].

According to the Court, “religion” meant “Christianity” and “freedom of religion” meant freedom to practice the one true religion, “Christianity,” or any imposter of the true religion as long as such practice did not violate or conflict with the moral or social laws of Christianity.

The Reynolds Court referred, as did the mid-twentieth century Court (See Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 1947 U.S. LEXIS 2959; 168 A.L.R. 1392 (1947)), to an obscure letter written by Thomas Jefferson. Regarding the First Amendment religion clause:

“Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: ‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.’ Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order” (Reynolds, 98 U.S. at 164).

According to Jefferson, the laws of government could reach actions, but not opinions. What actions could government reach? He desired that those laws should not reach, but rather should restore, the natural rights of man. And “[man] has no natural right in opposition to his social duties” (Ibid.)?

What is the origin of man’s “natural rights” and his “social duties” which cannot oppose one another? Jefferson signed the Declaration of Independence which stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness…. We, therefore, [appeal] to the Supreme Judge of the world for the rectitude of our intentions” (The Declaration of Independence para. 2, 32 (U.S. 1776)).  The Declaration referred to “the separate but equal station to which the Laws of Nature and of Nature’s God entitles them” (Ibid., para. 1).  Thus, according to Jefferson and the other signers of the Declaration of Independence, man’s “natural rights” come from God.

What defined man’s social duties? What was to tell us the meaning of good order? What actions violated social duties and subverted good order? From Reynolds one can certainly conclude that the Mormon religion, the ways of the Asiatic people, and the ways of the African people were not to be the guide America (98 U.S. at 164). Instead, social duties and good order were to be defined by looking at the laws of the northern and western nations of Europe, especially England (Ibid., pp. 164-65). In England the ecclesiastical (church) courts punished polygamy, and presided over testamentary causes and the settlement of the estates of deceased persons (Ibid., p. 165). Marriage was declared to be a “sacred obligation,” and a “civil contract … regulated by law” (Ibid. This last statement of the Court concerning marriage was flawed. Contract law is based upon enlightenment, not biblical, principles. Marriage as defined in the Bible is a covenant between God, man, and woman. Marriage, according to Enlightenment thought, is a contract between two equal people and the state; the state, not God, is alleged to be the controlling party to marriage. The contract clause—Article 1, Section 10 of the United States Constitution—was ultimately used to reconstruct marital law, family law, criminal law, and other areas of the law including relationship of church and state according to enlightenment principles of contract law. See Section VI of God Betrayed which is published in this blog in edited form.).

What did Jefferson mean by “separation between church and state?” The Reynolds Court stated:

“’[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty. [I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what belongs to the church and what to the state” (Ibid., p. 163). [Emphasis mine.]

The Court did not correctly articulate what belongs to a church and what to the state. Sections I through IV of God Betrayed explain the jurisdictions of church and state according to the Word of God. Nonetheless, the court is correct in asserting that church and state have different jurisdictions.

The Court went on to further clarify the intended meaning of the phrase by explaining that “the scope and effect of the [First Amendment religion clause] was to deprive Congress of all legislative power over mere opinion, while leaving Congress free to reach actions which were in violation of social duties or subversive of good order” (Ibid., p. 164). The Court referred to Thomas Jefferson’s letter to the Danbury Baptist Association as quoted above. They could have reinforced this with the Virginia Act for Religious Liberty, drafted by Jefferson and made law in Virginia in 1786 (quoted on pages 281-282 of God Betrayed which is reproduced on this website in the chapter entitled “To Virginia”), with James Madison’s famous “Memorial and Remonstrance” (quoted on pages 278-279 of God Betrayed and reproduced on this website in the chapter entitled “To Virginia”), and with other historical facts.

Reynolds held that laws criminalizing polygamy did not violate the First Amendment even though the offender practiced polygamy because of his religious beliefs (Ibid.).  The Court said that the act of polygamy violated social duties and subverted good order (Ibid., pp. 164-167). True enough, but still not proper authority to criminalize polygamy, since the Bible made clear that God intends marriage to be under Him only, not under the state.

Mr. Justice Field, who was appointed to the Supreme Court by President Abraham Lincoln in 1863, more clearly explained why, according to the Court, bigamy and polygamy are actions which violate social duties and subvert good order and why laws against bigamy and polygamy are constitutional:

“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.
     “The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. The first amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question (The Court failed to point out that the spiritual atrocities were continued in the colonies, in the conflict between the established churches and the dissenters.)It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by  him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation. There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the Constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance…” (Davis v. Beason, 133 U.S. 333, 341-43, 345 (1890). In Davis, a man was convicted of a crime under Idaho law and filed a writ of habeas corpus claiming that the law under which he was convicted violated the First Amendment “free exercise of religion” clause. The law prohibited one who belonged to a church organization that holds or teaches bigamy and polygamy as a doctrine of the church from voting or holding office.). [Emphasis mine].
“Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract [The Court was wrong in pronouncing that marriage is a civil contract. Section VI of God Betrayed deals with the fallacy that marriage is a civil contract. Although polygamy is contrary to the will of God, where does the Bible teach that polygamy should be subject to criminal sanctions?], and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal” (Ibid., pp. 343-344. Although one can argue as to whether the Bible prescribes a criminal penalty for bigamy, it is certain that God’s Word commands one husband with only one wife.).
“Whilst legislation for the establishment of religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion” (Ibid., p. 345).
     “Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement” (Ibid., citing Murphy v. Ramsey, 114 U.S. 15, 45. The court is right that marriage and family are important to the well-being of a nation. But, as has been pointed out, the God-given goal of a nation should be the glory of God. If the glory of God is the goal, correct marital and familial principles will follow. Nowhere in Scripture can one infer that the civil government has the authority to legislate and enforce laws dealing with marriage and familial relationships. A civil government does have the God-given authority to criminalize sexual sins which include sodomy, fornication, and adultery.).

To summarize what the Court said, the First Amendment religion clause gave us freedom of religion, freedom of conscience (Ibid., p. 342).  It separated church and state. However, when an act violated the criminal laws of the nation, the perpetrator was to be punished even if the act were in conformity with the beliefs of his sect (Ibid., pp. 341-347).  The Court declared that the criminal laws of this nation were founded on alleged “Christian” (not biblical) principles. In other words, the Court incorrectly stated that the United States looked to God for its principles (Ibid.). The Court made this clear although it did not use these exact words. For example, on page 343 of the opinion the Court said, “Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.” Notice that the Court went to the views of the “Christian” world, not to the Word of God to determine the issues addressed. In other words, the Court got its principles from rules made by church-state combinations, not from the Bible. The sect which the Court referred to was the Mormon “church” and the crime designated as a practice of a sect or “religion” was polygamy and bigamy (Ibid., pp. 334-335).  Thus, according to the Court, the First Amendment gave the Mormon “church” the right to exist in America (Ibid., p. 342);  the First Amendment gave those who belonged to the Mormon “church” the right to practice what was designated by their “church” as “religion” (Ibid.); but the First Amendment did not give those who belonged to the Mormon “church” the right to put into practice the duties imposed by their sect when those duties were recognized by the general consent of the Christian world as proper matters for prohibitory legislation (Ibid., p. 343).

The Court spoke ofMaker,” of “acts recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation,” and of “morals of a [nation’s people]” (Ibid. pp. 342-343). As correctly declared by the Court, the United States of America got its guidelines for what was criminal and for what is moral and what is immoral from looking at the “Christian world,” not by looking at the Bible. Thus, although the jurisprudence purported to be Christian, it was polluted to a degree (Ibid. pp. 341-345), since the rules the Court looked at were made by “churches” working with, over, or under the state. As is stated in these teachings, when the holy is combined with the unholy, the unholy always corrupts the holy (the holy never purifies the unholy). Bigamy was practiced by men in Israel as recorded in the Old Testament. However, no law under God in the theocracy of Israel was ever passed to criminalize bigamy. Of course the Bible teaches one man and one wife under God; but nowhere (Old and New Testament) does the Bible teach that either bigamy or polygamy, although sin in God’s eyes, should be criminalized. All crimes are also sins, but not all sins are to be criminalized according to the Word of God.

In Rector, Etc., of Holy Trinity Church: v. United States in 1892, the court stated a somewhat flawed history of Christianity within the United States:

“[The … charters of the original colonies, the Mayflower Compact, governing documents of early colonies, the Declaration of Independence, the constitutions of the various states, and the Constitution of the United States] are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. [They declare that this is a Christian nation]. While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in Updegraph v. Com. 11 Serg & R 394, 400, ‘It was decided that, Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; … not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men.’ [The Court was not entirely accurate in its historical assessment.] And in People v. Ruggles, 8 Johns 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as chief justice of the Supreme Court of New York, said: ‘The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but even in respect to the obligations due to society, is a gross violation of decency and good order…. The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors.’ And in the famous case of Vidal v. Girard’s Ex’rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: ‘It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania.’
“If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and society, we find everywhere a clear recognition of the same truth. [The laws, business, customs, and society of America, including the Constitution, were not entirely Christian but a blend of Christian and other thought.] Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ‘In the name of God, amen;’ the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation” (Rector, Etc., of Holy Trinity Church v. United States, 143 U.S. 457 at 471-472, 12 S. Ct. 511 at 516 (1892)). [Emphasis mine. Bracketed sentence added by this author. Christopher Columbus was a Catholic, and regardless of his declarations that his journey to the New World was inspired by God, Catholicism in the part of the New World dominated by that religion has produced entirely different and substantially inferior consequences than those seen in America prior to the denunciation of God by the American government.]

The majority of the justices at that time were Christians or at least men who respected Christianity. However, they obviously were weak spiritually since they relied upon man’s reasoning instead of the Word of God. They handed down opinions which attempted to honor God. Even though the Church of the Holy Trinity, the plaintiff in the case, was a corporation and therefore out of the perfect will of God, the Court still recognized some biblical principles in its decision. Obviously, they did not know and understand the true history of the First Amendment. They were influenced more by the theology of churches which had historically taught and practiced union of church and state than they were by historic Baptist (biblical) theology which had inspired men to stand against church-state establishments in both the Old World and in the American colonies; and consequently to be persecuted for (including being burned at the stake, drowned, drawn and quartered, drowned, buried alive, etc.) for their stand which included a stand for separation of church and state. Sadly, neither no justices (including Supreme Court Justices), nor the lawyers who argued to them, ever expressed the facts about the true foundation of the First Amendment.

The suit in Holy Trinity Church arose because the church, a corporation, hired an Englishman to serve as pastor. A federal law made it unlawful for “any person, company, partnership, or corporation” to bring in an immigrant into the United States “under contract or agreement” “to perform labor or service of any kind in the United States, its Territories, or the District of Columbia” (Ibid., p. 458, 12 S. Ct. at 511).

The Court noted that “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers” and that “[t]he reason of the law in such cases should prevail over its letter” (Ibid., p. 459, 461, 12 S. Ct. at 512). The Court then stated, in examining the intent of the legislature in making the law:

“Obviously the thought expressed in this reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms labor and laborers does not include preaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning. So whatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penal provisions of all contracts for the employment of ministers, rectors and pastors” (Ibid., p. 463, 12 S. Ct. at 513).

The Court further examined the intent of the statute, then stated:

“But beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true” (Ibid., p. 465, 12 S. Ct. at 514).

From there, the Court proceeded to give a flawed history of the nation concluding that this is a Christian nation.

Many of the quotations in Holy Trinity Church use the word “religion” in referring to Christianity. The opinion traces the Christian heritage of America, although the Court failed to point out the theological conflict that resulted in the First Amendment (Ibid., pp. 465-470, 12 S. Ct. at 514-516).  Christianity and religion were synonymous to the majority of Americans, including the majority on the Supreme Court. This had been so universally accepted as truth that the courts had seldom addressed it (Ibid., p. 470, 12 S. Ct. at 516)!

From God’s perspective as reflected in His Word, the reasoning in even these nineteenth century opinions was flawed. For example, the Court referred to Jefferson’s obscure letter to the Danbury Baptists. In that letter, Jefferson used deistic terms and enlightenment reasoning. He referred to “restoring man to all his natural rights, convinced that he has no natural rights in opposition to his social duties.” The Court referred to “the laws of all civilized and Christian countries” and not to the Bible or to God and His principles. The history given was definitely modified and revised to a degree. Although the reasoning was far better overall than that of the Court in the mid-twentieth century and thereafter—which would successfully attempt to remove God from all public affairs—it was still a compromise in God’s eyes. The holy had been mixed with the unholy, and the holy was thereby corrupted and on its way out.

A time would come during the twentieth and twenty-first centuries when the majority on the Court, and the majority of Americans, were not born-again Christians. When that happened, the failure of the Constitution to declare the sovereignty of God and the proper goal for the nation–the glory of God—and the inclusion of enlightenment principles in the Constitution (and the Declaration of Independence) would make the undermining of Christian values and the removal of the nation from “under God” much easier.


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