The Supreme Court and Religion in American Life

In the sport of religion jurisprudence, the cats sometimes catch the mice. In October 1997, for example, federal district judge Ira DeMent issued an injunction forbidding religious activities in and around public schools in Alabama. Forbidden activities included “Bible and religious devotional or scriptural readings; distribution of religious materials, texts, or announcements; and discussions of a devotional or inspirational nature, regardless of whether the activity is initiated, led by, or engaged in by students.” The injunction set up a system of monitors to enter classrooms, visit athletic events, and observe activities—in order to collect complaints and verify compliance. Public schools were commanded to conduct mandatory “in-service training” sessions, designed to educate school officials in “the general contours of Establishment Clause and Free Exercise principles as the court has explained them.”

For the next four years, the injunction would occupy the attention of the Eleventh Circuit Court of Appeals, which eventually weakened it considerably. Even the federal bench could eventually see that there are more mice than cats and that the mice have clever lawyers.

The DeMent injunction is a token of the sometimes comical plight of the federal judiciary on religious matters. How did the august judicial branch of the American government find itself goaded by teenagers with religious tracts, swamped in litigation that would boggle even the sharpest exegetes, and forced into applying “tests” that seem implausible, contradictory, and, what is worse, contemptible for their weakness? How did it happen that members of the Supreme Court could routinely refer to one another’s opinions as “totally incorrect,” “unsound,” “courting anarchy,” “laying waste venerable customs,” “inherently ethnocentric,” “outright perverse,” “ridiculous,” “pure fantasy,” “pernicious,” “absurd and offensive,” bordering “on paranoia,” and an “Orwellian rewriting of history”?

James Hitchcock’s new study, The Supreme Court and Religion in American Life, provides for the general reader a useful road map through the history and case law. The first of the two volumes tells the history rather comprehensively, with a minimum of interpretive overlay. The second tries to understand the story.

Hitchcock’s work is especially valuable for his extensive coverage of the Court’s religion jurisprudence before the deluge—that is, before the 1940s, when the Court deliberately made itself a tribunal of the nation’s religious disputes. For the first century and a half of the nation’s history, the Court diligently avoided expanding the scope of the religion clauses of the Constitution. Although from time to time the executive and legislative branches (as well as some states) experimented with “separation ism”—attempting even to constitutionalize the doctrine—the Court kept its hands clean. It decided cases, but it was not a purveyor of “doctrine.”

One reason is that religious disputes rarely reached the Court under the rubric of the religion clauses of the First Amendment. As Hitchcock shows, the earliest and most persistent religious issues involved property: land grants, inheritance, trusts and bequests, division of property in parishes and national denominations, legal enforcement of contracts and religious vows to surrender personal property to a religious group, and the rights of foreign missionaries to acquire land.

In one of the earliest cases, Dartmouth College v. New Hampshire (1819), a state governor and legislature tried to dismiss a private college’s trustees in order to make the college a state school and emancipate it from its allegedly “medieval” religious mission. Justice Marshall ruled that the royal charter—which created the school to advance the spread of Christianity and piety—was binding and the state’s attempt to alter the institution was a breach of contract.

Although it usually protected the integrity of church polity, the Court typically did so by applying the ordinary law of contracts, trusts, and corporations. So strong was its reluctance to engage in speculative doctrine in cases touching upon religion that, when necessary, the Court consulted the positive law of foreign jurisdictions. It had to do so in the case of royal grants contested after the colonies became states. But it also did so in two of the era’s more complicated and fascinating pieces of litigation.

One case came out of Louisiana, where it was contended that one of the claimants to a will was illegitimate because his parents contracted a marriage by mere consent when the area was still under Spanish jurisdiction. Although Catholic canon law did not countenance such unions after 1563, it turned out that Spanish colonial law had incorporated the pre-Tridentine canons, according to which the marriage was valid. In a similar case, where a priest had declared a marriage bigamous, the Court discovered that ecclesiastical investigations into bigamy required the permission of Spanish royal courts, and, such permission not having been obtained, the claimant to the will was deemed legitimate. The Court refused to posit historical ruptures in the organic law.

All of this stood in marked contrast to the treatment of church polity and property in Europe, where ecclesiastical institutions were submitted to various Kulturkämpfen supervised by government authorities. Interestingly, the Court had several opportunities to play the role of their European counterparts. In Vidal v. Girard’s Executors (1844), a philanthropist’s descendants sought to overturn his will because it endowed a boys school in Pennsylvania with the strict provision that no clergyman should ever teach there. Daniel Webster argued before the Court that the will embodied the anti-clerical ideas of Thomas Paine, and thus violated the common law strictures against blasphemy. Here, the Court might have succumbed to the temptation to weigh the relative merits of religion and secularism in education; instead, it affirmed that Christianity is part of the state’s common law, and then ruled narrowly that Girard intended no such insult in his will.

Then, in Permoli v. New Orleans (1845), the Court had a chance to extend the scope of the free-exercise provision of the First Amendment. A Catholic priest was convicted of violating a municipal statute forbidding funerals in churches rather than in cemeteries. He argued that the ban breached the First Amendment, the Northwest Ordinance of 1787, which protected religious liberty in the territories, and the state constitution of Louisiana. What better chance to give judicial force to a great principle of liberty? The Court, however, ruled that the Northwest Ordinance ceased to bind Louisiana once it became a state in 1812, and that the Constitution protects religious liberty against Congress, not the states. In the Holy Trinity case (1892), the Court had to consider a Congressional act that limited religious liberty. After Congress passed a law forbidding importation of foreigners to work in the United States, a suit was brought by an Episcopal parish in New York City that wished to hire a British rector. The Court ruled that the law was wrongly applied. Justice Brewer reasoned that because the United States was a “Christian nation” that had no public practices deliberately hostile to religion, Congress could not have intended to forbid the reception of foreign nationals as ministers.

One of the best chapters in Hitchcock’s study is “The Faiths of the Justices,” in which he examines the religious affiliations and ideas of Supreme Court justices from John Marshall to Stephen Breyer. Interestingly, until the 1940s, the religion of the individual justices provides almost no clue to how they will rule on cases involving religion. Justice Bradley—who abhorred religious doctrines, held that the Jewish scriptures are full of “crudities,” and believed that Paul perverted the primitive message of Jesus—not only defended the role of traditional religion in common law, but went so far as to uphold sabbatarian laws by citing ancient Jewish observances. Justice Brewer, a staunch Congregationalist, gave as evidence that the United States is a “Christian nation” the voyages of Christopher Columbus at the behest of “their Catholic majesties, Ferdinand and Isabella.” The second Catholic on the Court, Joseph McKenna, upheld a contract requiring the teaching of Calvinism in a school founded by missionaries in Hawaii. Justice McReynolds, who was vociferously anti-German, and who was deemed one of the most bigoted and racist members of the Court, upheld the rights of parochial schools in Meyer (1923) and Pierce (1925), even though in the Meyer case the issue turned on the teaching of German. Justice Hughes, who led a fight to eliminate Baptist requirements at his alma mater, Brown University, and who had little use for Catholics, upheld the legal enforceability of the monastic vow of poverty insofar as it affected incomes earned by royalties.

But beginning in the 1940s, the personal faith of justices began to influence how they would rule in cases. “In 1947,” Hitchcock writes, “for probably the first time in its history, the Court was composed of a majority who were alienated from the religions of their youth, men who had come to believe that the faiths in which they had been raised were to some extent false and even pernicious.” More, a new philosophy of civil rights and liberties was emerging worldwide, in response to the dictatorships and the war. Religion became an occasion for the more aggressive doctrine of civil liberties. In a seven-year period, from 1940 to 1947, both religion provisions of the First Amendment were “incorporated” against the states through the Fourteenth Amendment.

Incorporation of these clauses removed the old firewall that had allowed justices to treat religious disputes without regard to the First Amendment. Religion in public life now became a fully constitutional issue. Having little case law to guide the new judicial endeavor, the Court had to construct a “doctrine.” One leg of that doctrine was that the Founding Fathers were separationists—a false legend that proved to be a dead end for legal reasoning; it allowed critics to hoist the doctrine of separation on its own “historical” petard.

Hitchcock argues that the new jurisprudence was in search not of a historically grounded position but of a doctrine that made acts of establishment “intolerable in themselves.” In the Flast decision (1968), the Court threw open the gates of litigation by adopting the principle that standing to sue (for violations of the establishment clause) depends not on a showing of injury but solely on one’s status as a taxpayer. Under the Court’s insistence that establishment includes, as Justice Black put it, “religion in general,” huge tracts of territory came open for law suits: not merely churches and specific theological doctrines, but moments of silence, Christmas trees, soup kitchens, and an indefinite array of animate and inanimate things.

Hitchcock shows how the quest for a new, comprehensive First Amendment doctrine destroyed the obvious, inherited foundations: strong historical continuity with the founding era and subsequent case law, civil religion, and the idea of a “higher law.” Aware of the free-floating nature of the project, the Court in the 1970s attempted to translate the big doctrine into little ones, spelled out in “tests.” The Lemon decision (1971), for instance, held that state actions must avoid unnecessary entanglement with religion, must have a predominately secular purpose, and must have a primary effect that neither advances nor inhibits religion.

This presupposed, however, that the Court would be able to pick out, non-arbitrarily, what counts as “secular” or “religious” in entanglements, purposes, and effects. Beginning with the Lynch decision (1984), justices endeavored to apply yet another “test”—the reasonable-observer test, in which the Court would decide whether a hypothetical person would detect the presence or absence of forbidden religious “effects” in public places. This test, in turn, led the justices to distinguish between a “reasonable person” and a “casual passerby.”

All of this, despite the Court’s insistence that religion is essentially subjective or tribal. According to Justice Brennan, the Court itself can be blinded by “ethnocentric” interpretations of religion. “It can hardly be doubted,” averred Justice Blackmun, that secular things “take on a religious nature” when promoted theologically by “religious figures.” The perspective of some observers renders the “effect” religious.

In short order, religion jurisprudence became just what John Courtney Murray had warned against: “articles of faith” masquerading as “articles of peace.” In Allegheny (1989), Justice Blackmun asserted that it is the “purpose” of the Establishment Clause to protect “the logic of secular liberty.” What about religious liberty? In his discussion of the McCollum decision (1948), Felix Frankfurter asserted, “In this country, the church is subordinate to the state.” This premise would have been acceptable to many nineteenth-century European regimes, but the struggle over subordination is precisely what the Court avoided in its first century and a half. Hitchcock concludes: “The modern Court sees religious liberty as a conditional freedom only, not merely in the obvious sense that society cannot tolerate everything done in the name of religion but in the sense that believers may claim freedom for themselves only to the extent that they adhere to the separationist understanding.”

In Everson (1947), Justice Rutledge insisted that religious believers must be the ones to retreat from any conflict. “Like St. Paul’s freedom, religious liberty with a great price must be bought. And for those who exercise it most fully, by insisting upon religious education for their children mixed with secular, by the terms of our Constitution the price is greater than for others.” Hitchcock wryly notes that Rutledge, the son of a Baptist minister, must have known that in Acts 22:28 Paul answered a similar charge with the claim: “But I was born free.” This passage illuminates the hapless work of Judge DeMent, who tried to make the teachers and teenage students in Alabama submit to First Amendment “values.” A reasonable observer would no doubt conclude that the First Amendment was not meant to be a platform for ritually reenacting Paul’s colloquy with the Roman magistrate.

Russell Hittinger is the Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.

Religious moral instruction is illegal in public schools. Conversely, secular moral instruction is legal. Thus, public schools may not teach specific religious morals associated with any religion. Public schools may teach or promote secular morals and values such as abortion, birth control, homosexuality, environmentalism, multiculturalism, etc. etc.. What is wrong with this picture? In a nutshell, public schools promote socialist or atheist values, but not religious ones. Fair and balanced? I think not. Our courts have abondoned the first amendment, and using the fourteenth amendment as cover, along with a push from the secular left and the ACLU, are attempting to remove all references to religion from public life. This results in some peculiar contrasts, such as in the Senate and House, opening with a prayer from various religious figures, where as with many other civil meetings it is prohibited by law. When the phrase "do you swear to tell the truth, and nothing but the truth, so help you God," is amended to remove the last word, the radical secularists will cheer, and we will be a Nation the lesser for it. I am not a fan of Ted Koppel, but he made a comment about the Ten Commandments some years ago I agree with, as many may remember; "they are not the ten suggestions." Unfortunately, it seems to be turning out that way, in terms of public life in America.

So Help Me God

Chief Justice Roy Moore maintains that government must acknowledge the God upon whom America's moral principles were founded and that it is constitutional and ethical to do so. During the last fifty years, federal judges have misconstrued and abused the concept of “separation of church and state,” censoring God from the public square and depleting the moral fiber of our nation.

As a judge, Roy Moore was sworn to uphold the Constitution of the United States. Some critics have claimed that he violated the law by disobeying the order of a federal judge to remove a monument of the Ten Commandments. But chief Justice Moore brilliantly argues that by refusing to follow the unlawful demands of a federal judge, he denied the rule of man and upheld the Constitution of the United States, the true rule of law, and his oath required.

So Help Me God explains why elected and appointed government officials have not only the right but also the duty to acknowledge God as the moral foundation of American law and government.

So Help Me God by Moore, Roy So Help Me God
Moore, Roy

Federal judges who hypocritically open their courts with a prayer and yet prohibit public displays that acknowledge the sovereignty of God have placed themselves above the law, making their opinions the new standard of right and wrong - and leading us as a society to deny the very existence of God. But Judge Roy Moore has had enough. The courageous Alabama Supreme Court Chief Justice who was removed from the bench for his refusal to take down a display of the Ten Commandments from the Alabama Judicial Building tells his story in So Help Me God: The Ten Commandments, Judicial Tyranny, and the Battle for Religious Freedom.

In this no-holds-barred account of his battles to restore the proper place of religion in the public sphere, Judge Moore recounts his bare-knuckle fight with the ACLU; his efforts to combat Leftist disinformation and restore a proper understanding of the Establishment Clause; his trial in federal court - by turns farcical and deadly serious -- and its implications for the rule of law in the United States; his battle to protect the Ten Commandments monument in the Alabama court building (including a full explanation of why he felt bound to disobey the order to remove it); his controversial and politically motivated removal from his post as Alabama Chief Justice, and much more.

Judge Roy Moore reveals:

Why the greatest danger we face today is from those who in the name of freedom tell us that we must turn our backs on God
The critical and much-overlooked difference between the rule of law and the rule of man
How Judge Roy worked hard while serving on the Alabama bench to uphold the moral foundations of our laws
The ACLU: how it is built on deception, and is neither "American" in its mission nor dedicated to true "civil liberties"
The famous civil rights leader who declared: "A just law is a man-made code that squares with the moral law or the law of God"
How many of Moore's most tenacious opponents manifested an appalling ignorance of American law and history
The U.S. Supreme Court that forthrightly affirmed that Americans are a Christian people, "acknowledging with reverence the duty of obedience to the will of God"
How, by ordering Moore to remove the Ten Commandments monument, a lower federal court actually intended to force him to deny the sovereignty of God
The ridiculous 1980 U.S. Supreme Court decision that declared that leading schoolchildren to "read, meditate upon . . . venerate and obey" the Ten Commandments was "not a permissible state objective"
How the ACLU's case against Moore was shown to be absurd and ill-founded from the very opening of courtroom proceedings
"Moore 1, ACLU 0": how Judge Roy defeated the first assault against his defense of the Ten Commandments -- and why he was unable to overcome the next onslaught
How both the first Chief Justice, John Jay, and the first President, George Washington, demonstrated that they realized that belief in God was the foundation of all oaths, as well as of all properly functioning legal structures
Revealed: the true agenda of the Alabama Freethought Association, which challenged Moore's Ten Commandments monument
How Moore's struggle threatened the philosophy of judicial supremacy -- thus earning him the enmity of judges who didn't want to be reminded that there is a God (or a Constitution)
How the court order to Moore to remove the Ten Commandments monument violated both the U.S. and the Alabama Constitutions
The absurdity of the grounds on which Moore was found guilty of violating the Alabama Canons of Judicial Ethics
How even judges today do not understand what all American schoolchildren were taught in past ages: that our religious freedom is not freedom from religion, but actually comes from God
How Moore sought to operate according to the principle enunciated by the Founding Father who thundered: "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?"
Why it is not true that our government must be neutral toward God for all citizens to have freedom of conscience (and no, the Constitution doesn't say so, either)

Says Judge Moore: "There is a spiritual battle raging across our land -- a battle between good and evil, right and wrong, light and darkness. This is a struggle between those who acknowledge Almighty God and those who deny His sovereignty." So Help Me God is an indispensable handbook to help you take your places with the forces of light, and fight the crucial struggle to return America to the knowledge of God, upon which our laws are founded.

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