Separation of Church and State Law

Home » Uncategorized » E. Supreme Court Religion Clause Jurisprudence » Application of the First Amendment to the states: 1868-1947

Application of the First Amendment to the states: 1868-1947

Jerald Finney
Copyright © January 16, 2012
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Note. This is an edited version of God Betrayed, Section V, Chapter 3.

The Supreme Court used the Fourteenth Amendment to open the door for the federal government to get into state government affairs. Since state governments had illegally gotten into the affairs of individual, family, and church governments, the United States Supreme Court was able to intercede into those governments. The purpose of the Fourteenth Amendment, which was ratified after the Civil War, was to protect the status of Black Americans and insure their freedom, but it has been used for other purposes with no regard for its intent.  The Fourteenth Amendment says, in relevant part:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. CONST. amend. XIV, § 1).

Although the Fourteenth Amendment was ratified in 1868, the complete sovereignty of the states in matters of religion was not challenged until well into the twentieth century. When that challenge came, the constitutional prohibition of an establishment of religion was expanded into a prohibition of the reading of the Bible, the recitation of the Lord’s Prayer in public schools, posting the Ten Commandments in public schools of America, and many other prohibitions intended to remove all vestiges of God over civil government. Endless debates continue concerning the limitations imposed by the First Amendment by the Supreme Court through the Fourteenth Amendment. One thing is certain—only a view that allows the Supreme Court to invoke the philosophies and beliefs of the majority on the Court and impose them on the American people can explain the perversion by the Court of the fundamental law of America.

Two “distinct and totally divergent trends” in Supreme Court Fourteenth Amendment jurisprudence emerged. Initially, after the ratification of the Fourteenth Amendment, the Court declared unconstitutional laws passed to uphold the rights of Negroes. At the same time, the Court relied upon the Fourteenth Amendment to control state legislative power over corporations. The Court extended “to corporations by a series of ever widening interpretations of the amendment a measure of freedom from state regulation that accorded with the spirit of the times but hardly with the spirit of the men who framed the amendments and the American people who adopted them.” Thus the amendment became the “Magna Charta of corporation freedom … while its application to its real purpose, the achievement of legal equality for all Americans, was lulled to a fitful slumber” (William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), p. 144). However, the incorporation of the First Amendment into the Fourteenth would be almost eighty years in the future.

The first instance where the Supreme Court may have applied the First Amendment to the states through the Fourteenth was in 1871. The case involved a dispute between majority (who disbelieved in slavery) and minority (who supported slavery) membership in a Presbyterian Church in Louisville, Kentucky, each claiming the exclusive use of the property held and owned by that local church (Watson v. Jones, 80 U.S. 679, 728 (1871)). The Court stated, “The full and free right to entertain any religious belief, to practice any religious principle, and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe on personal rights, is conceded to all. The law knows no heresy, and is committed to support no dogma, the establishment of no sect” (Ibid. at 728). “The statement is not explicit, but in its context this is obviously a declaration of religious freedom for minorities. For over seventy years, the Fourteenth Amendment would be applied for the protection of minority freedom” (Marnell, pp. 145-146).

In 1879, an opinion delivered by Supreme Court Justice Stephen J. Field

“at least intimated that the Fourteenth Amendment was applicable to the protection of religious liberty. He stated, ‘In our country hostile and discriminating legislation by a statute against persons of any class, sect, creed or nation, or whatever form it may be expressed is forbidden by the Fourteenth Amendment’ (Ho Ah Kow v. Numan, 12 Fed. Cas. No. 6546, pp. 252, 256. In 1885 he expanded this doctrine: ‘The Fourteenth Amendment … undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights…’ (Barber v. Connolly, 113 U.S. 27, 31). His point of view was shared in various dissenting opinions by Justice John M. Harlan (1833-1911), but the Supreme Court majority continued to … disregard its possible applicability to cases involving religion” (Ibid., pp. 148-149. See also, Spies v. Illinois, 123 U.S. 166 (1887) and in in re King, 46 F. 905, 912 (a circuit court opinion) for evidence of this viewpoint.).

It took fifty more years for a majority of the Court to imply that the Fourteenth Amendment gave religious liberty to the citizens of the states. In 1923 the Supreme Court in Meyer v. State of Nebraska took another step toward incorporation of the First Amendment into the Fourteenth:

“Defendant, state of Nebraska, enacted a statute that [criminalized] the teaching of languages other than English to any child [in a private, denominational, parochial or public school] who had not completed the eighth grade. Plaintiff teacher was tried and convicted for teaching German to a child who had not yet passed the eighth grade. The state supreme court affirmed the judgment. The Supreme Court reversed, holding that the statute was arbitrary and unreasonable and infringed on the liberty guaranteed by the Fourteenth Amendment to the United States Constitution. [The issue was whether a Nebraska state ‘statute as construed and applied unreasonably infringed upon the liberty guaranteed by the Fourteenth Amendment to the United States Constitution: ‘No state … shall deprive any person of life, liberty or property without due process of law.’] The Court stated that education and acquisition of knowledge were matters of supreme importance that should be diligently promoted. The Court held that the liberty guaranteed by U.S. Const. amend. XIV protected plaintiff’s right to teach and the right of parents to engage plaintiff to teach their children” (Meyer v. Nebraska, 262 U.S. 390, 397; 43 S. Ct. 625, 626; 67 L. Ed. 1042; 1923 U.S. LEXIS 2655; 29 A.L.R. 1446 (1923)(edited)).

The Court “gave an oblique rather than a direct guarantee to religious freedom from state action” (Marnell, p. 150). In defining the liberty guaranteed the Court stated:

“While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men…. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts” (262 U.S. at 397-400). [Emphasis mine.]

What was not addressed in Meyer “was the fact that training in this school had religious connotations; indeed, Meyer based his defense upon that fact. On the basis of the precedent set in Meyer … there came two years later a finding, much better known…” (Marnell, p. 151).  In Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-535; 45 S. Ct. 571, 573; 69 L. Ed. 1070; 1925 U.S. LEXIS 589; 39 A.L.R. 468 (1925), the Court held that Oregon Compulsory Education Act of 1922, which practically construed required all normal children between ages of 8 and 16 years to attend public schools. The issue in the case was the constitutional right of religious organizations to operate a religious-oriented, alias parochial, school in the face of a contrary state statute affirmed by the voters. The Court held that the Act violated the Fourteenth Amendment in that it deprived parents and children of their rights in matter of selection of schools and … destroys private schools and diminishes the value of their property. The Court said:

“Under the doctrine of Meyer v. Nebraska, 262 U.S. 390, we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations” (Marnell, p. 153 citing 268 U.S. at 534-535; 45 S. Ct. at 573).

Meyer and Pierce gave parochial schools their legal guarantee of existence. “[T]he Court protected a religious minority in the exercise of a right which could hardly be said to have a common border with the corresponding right of the majority” (Ibid., p. 154).

Little by little, the Court used the Fourteenth Amendment to secure the rights of Americans against state infringement, although the Court, in 1937, restricted application of the Fourteenth Amendment to fundamental liberties which included freedom of thought and speech (Palko v. State of Connecticut, 309 U.S. 319 (1937)). In Gitlow a New York Statute prohibited language advocating, advising, or teaching the overthrow of organized government by unlawful means (Gitlow v. New York, 268 U.S. 652, 664-665 (1925)). Although the constitutionality of the statute and the conviction were upheld, the Court stated, “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States (Ibid., p. 666). “It was widely inferred that freedom of speech and of the press carried as an inevitable corollary freedom of religion” (Marnell, p. 155). Justice Cordoza, in a concurring opinion in Hamilton, a case which upheld a law requiring military training at a state university, stated, “I assume for present purposes that the religious liberty protected by the First Amendment against invasion by the nation is protected by the Fourteenth Amendment against invasion by the states” (Hamilton v. University of California, 293 U.S. 245, 265 (1934)).

In 1938 the Court, in a case involving a Jehovah’s Witness arrested convicted, and fined for distributing religious tracts without a permit, held that the ordinance requiring a permit was unconstitutional, ruling that “it strikes at the very foundation of the freedom of the press by subjecting it to license and censorship (Lovell v. City of Griffin, 303 U.S. 444 (1938)). Liberty of circulating is as essential to that freedom as liberty of publishing; indeed, without the circulation, the publication would be of little value” (Ibid., pp. 451, 452).

Soon thereafter, Jehovah’s Witnesses in Connecticut were arrested, tried, and convicted for violating an ordinance requiring approval by a certain public official before one could solicit funds for “any alleged religious, charitable, or philanthropic cause.” The Supreme Court reversed the state court stating:

“We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment…. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus, the Amendment embraces two concepts—freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. It is equally clear that a State may, by general and nondiscriminatory legislation, regulate the times, the places, and the manner of soliciting upon its streets, and of holding meetings thereon, and may in other respects safeguard the peace, good order, and comfort of the community without unconstitutionally invading the liberties protected by the Fourteenth Amendment….
“It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the State; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth” (Cantwell v. Connecticut, 310 U.S. 296, 303-304, 305 (1940)).

For the first time, the Court explicitly held that the Fourteenth Amendment secures the religious guarantees of the Bill of Rights against state infringement. Prior to Cantwell, the few religion-clause cases decided by the Court involved actions against the federal government. After Cantwell, the majority of religion clause cases going to the Supreme Court were aimed at state actions.

Next came two flag-salute cases, Minnersville School District v. Gobitis, 310 U.S. 586 (1940) and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). Barnette reversed Minnersville which upheld a state law that required all public school students to salute the American flag. Jehovah’s Witnesses refused to do so based upon a literal interpretation of Exodus 20.4, 5—they considered the flag an “image.” Minnersville held that the promotion of national cohesion through the compulsory flag salute was an interest more important than the preservation of religious freedom.

Barnette held that the required flag salute was a violation of the first and Fourteenth amendments in the case of students with a conscientious objection to it grounded upon religious belief. Justice Jackson, writing for the majority stated:

“The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual….
“To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind….
“The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement…. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard” (West Virginia State Board of Education v. Barnette, 319 U.S. 624 at 630, 634, 641 (1943)).

The above assertions of the court were biblically correct, but the societal context as compared to that of the founding of the nation had been changed considerably in an unconstitutional and unbiblical manner. For example, the education of the majority of children had been placed in the hands of a public school system. Justice Jackson noted:

“These principles [in the Bill of Rights] grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with few controls and only the mildest supervision over men’s affairs. We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. These changed conditions often deprive precedents of reliability and cast us more than we would choose upon our own judgment. But we act in these matters not by authority of our competence but by force of our commissions” (Ibid., pp. 639-640).

The court also examined the question of power of the civil government versus individual liberty, and then discussed whether the proper place to address the issue was within the legislature:

“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections” (Ibid., p. 638).

As to this assertion, the Court can and does hand down decisions which make law and which go beyond interpretation of the Constitution. Some such decisions are within the Constitutional powers of the Court, but some are not. As it has turned out, many decisions of the Court were correct when judged by the highest law, the Bible, while others were contrary to the principles of the highest law and will contribute to the ultimate destruction of the nation. It is important to note that not just the Court, but all branches of civil government, both state and national, as well as individual government, family government, and church government have steadily declined toward chaos as man acts according to his nature without the proper standards (doing that which is right in his own eyes).


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