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Church and State in America

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The First Amendment to the United States Constitution

 “Because religious belief, or non-belief, is such an important part of every person’s life, freedom of religion affects every individual. State churches that use government power to support themselves and force their views on persons of other faiths undermine all our civil rights. Moreover, state support of the church tends to make the clergy unresponsive to the people and leads to corruption within religion. Erecting the “wall of separation between church and state,” therefore, is absolutely essential in a free society.

Thomas Jefferson in a speech to the Virginia Baptists (1808)

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law.” “All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.”

Thomas Paine in The Age of Reason; The Rights of Man, 1791-1792

“When the government puts its imprimatur on a particular religion it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.”

Supreme Court Justice Harry A. Blackmun in Lee v. Weisman (1992)

 The History[1]:

The relationship between religion, church, and government has been a “hot topic” for thousands of years. Even in the time of Jesus, there was an issue regarding church and state: “Render (ἀπόδοτε, give back, as a due) to Caesar the things that are Caesar's, and to God the things that are God's.” (Mark 12:17; Matt 22:21). Of course, prior to Jesus’ time the relationship between church and state was very different as Judean Jews had been ruled by their High Priest – the church and the state were one and the same. With the establishment of the Holy Roman Empire during the Early Middle Ages (continuing until its dissolution after the American Revolution), the church-state was well known and understood by the American founders. Indeed, American history (as with the Mayflower pilgrims) may be said to have begun with the early “Puritans” and “Separatists” who sought to escape religious persecution in England.

It was perhaps John Calvin, writing in his “Institutes of the Christian Religion” (1536), who provided the foundation for the modern concept of a separate church and state government. He argued that the “spiritual kingdom” and the “political kingdom […] must always be considered separately” due to the “difference and unlikeliness between ecclesiastical and civil power.” Roger Williams, the “founder of Rhode Island” argued for church-state separation and in 1644 spoke of a “wall of Separation between the Garden of the Church and the Wilderness of the world.” Baron Montesquieu’s Spirit of the Laws (1748), which advocated toleration of religious belief and freedom of worship, and the writings of Henry St. John, Lord Bolingbroke, who discounted the divinity of the scriptures and a religious basis of the law were well known by the founders and framers of our government. In particular Thomas Jefferson was a fan of Montesquieu and Bolingbroke as well as James Burgh, author of “Political Disquietations” and “Crito” (1766) where Burgh called for building “an impenetrable wall of separation between things sacred and civil…”

During the decades leading up to the American Revolution, it was common for states, colonies, or nations to pay clergy and for the building and upkeep of churches. There were laws that allowed children to be taken from parents if they did not have them baptized. The right to vote or hold office was commonly premised upon oaths proclaiming certain religious beliefs. And religious persecution was not only common but was sometimes sponsored or organized by the state[2]. Thus, while fair representation, taxation, and other factors were important in triggering the revolution, religious issues were also central to the cause.

One of the founders at the forefront of the religious freedom movement was John Dickinson[3] of Pennsylvania (and Delaware) who wrote in 1768:

“Religion and Government are certainly very different Things, instituted for different Ends; the design of one being to promote our temporal Happiness; the design of the other to procure the Favour of God, and thereby the Salvation of our Souls. While these are kept distinct and apart, the Peace and welfare of Society is preserved, and the Ends of both are answered. By mixing them together, feuds, animosities and persecutions have been raised, which have deluged the World in Blood, and disgraced human Nature.”

In May of 1777, the Continental Congress proclaimed days of fasting and of thanksgiving annually throughout the Revolutionary War. This proclamation by Congress called for a day of humiliation, fasting and prayer throughout the colonies. Congress also urged its fellow citizens to "confess and bewail our manifold sins and transgressions, and by a sincere repentance and amendment of life, appease his [God's] righteous displeasure, and through the merits and mediation of Jesus Christ, obtain his pardon and forgiveness." 

When adopted in July of 1776, the Pennsylvania Constitution provided:

And each member, before he takes his seat, shall make and subscribe the following declaration, viz: I do believe in one God, the creator and governor of the universe, the rewarder of the good and the punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration… all tax-paying freemen and their sons shall be able to vote, and that no "man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship." [Emph. Added].

Of course, that same month, another group approved the Declaration of Independence (July 4th, 1776):

“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.”

There are several more references to God found in the Declaration: “Laws of Nature and of Nature’s God”, “Appealing to the Supreme Judge of the World”, and “With a firm Reliance on the Protection of Divine Providence”. Thus, the founders who signed the Declaration of Independence clearly accepted a role and function of religion in forming their ideas.

Also on July 4, 1776, Congress appointed a committee which included Benjamin Franklin, Thomas Jefferson and John Adams "to bring in a device for a seal for the United States of America." Franklin's proposal adapted the biblical story (from Exodus) of the parting of the Red Sea. Jefferson first recommended the "Children of Israel in the Wilderness, led by a Cloud by Day, and a Pillar of Fire by night. . . ." He then embraced Franklin's proposal and rewrote it. Jefferson's revision of Franklin's proposal was presented by the committee to Congress on August 20, 1776 but was not accepted. Nevertheless, these drafts for the Seal of the United States reveal the religious temper and foundation of the Revolutionary period. And, as we shall see, Franklin and Jefferson were among the most theologically liberal or independent of the Founders.  Here is the seal proposed by the first committee:


The proposed Great Seal which included Franklin’s proposed motto: "Rebellion to Tyrants is Obedience to God."[4]

The final acceptance of the Great Seal didn’t happen until two committees and six years later (after the Revolutionary War. We will return to it momentarily. 

The war with Britain had cut off the supply of Bibles to the United States with the result that on Sept. 11, 1777, Congress instructed its Committee of Commerce to import 20,000 Bibles from "Scotland, Holland or elsewhere." In 1781, Philadelphia printer Robert Aitken was preparing to print the first Bible (including the old and New Testaments) in the United States and he petitioned Congress to officially sanction his publication. As the printing progressed, Congress accepted his petition saying that they "highly approve the pious and laudable undertaking of Mr. Aitken, as subservient to the interest of religion . . . in this country, and . . . they recommend this edition of the bible to the inhabitants of the United States."[5]

The Continental Congress (from a committee led by John Dickinson) produced and approved The Articles of Confederation in November or 1777 (as a precursor to the U.S. Constitution, they were ratified in 1781) which ended with the line: “It has pleased the Great Governor of the World to incline the hearts of the Legislatures we respectively represent in Congress, to approve of and to authorize us to ratify the said Articles of Confederation.”[6]

Meanwhile, Thomas Jefferson wrote the Virginia Statute for Establishing Religious Freedom (which was initially rejected). The proposed statute affirmed the rights of Virginians to choose their faiths without coercion; separated church and state; and, while acknowledging the right of future assemblies to change the law, concludes that doing so would "be an infringement of a natural right." His bill was tabled in the face of opposition among powerful members of the established Church of England. But in 1784 a resolution was introduced in the Virginia General Assembly which called for a tax to support Christian sects within the state. This proposed bill yielded so much opposition that James Madison saw an opportunity to reintroduce Jefferson's bill and it passed with minimal changes. [7]

The Articles of Confederation did not officially authorize Congress to concern itself with religion and there was little objection to such state involvement in religious activities. Some argue that the lack of objection at this early time indicates that both the Congress and the public deemed it appropriate for government to be involved with and even promote a nondenominational, nonpolemical Christianity. This idea gains support in other facts: Congress appointed chaplains for itself and the armed forces, it sponsored the publication of a Bible (as above), it imposed Christian morality on the armed forces, and granted public lands to promote Christianity among the Indians. Congress was openly guided by "covenant theology," a Reformation doctrine especially dear to New England Puritans, which held that God bound himself in an agreement with a nation and its people.

Our nation’s first federal government clearly accepted that "public prosperity" depended on the vitality of its religion and that a "spirit of universal reformation among all ranks and degrees of our citizens," was necessary to "make us a holy, that so we may be a happy people." Thus, while the founders were discussing a need to separate church functions from government functions, they approached such with deeply held religious convictions. A good example of this dichotomy was Ben Franklin, one of the strongest advocates for separation and a professed non-Christian (as with Thomas Jefferson, Thomas Paine, and other founders, he deemed himself a “Deist”).

Franklin argued for separation of church and state saying: “When a religion is good, I conceive it will support itself; and when it does not support itself so that its professors are obliged to call for the help of the civil power, ’tis a sign, I apprehend, of its being a bad one.” But he also publicly proclaimed deeply held religious beliefs: “Therefore I think it seems required of me, and my Duty, as a Man, to pay Divine Regards to SOMETHING”[8]. As always, a practicalist and pragmatist, Franklin found no conflict between religious ideas and framing a government – he just didn’t want a government controlled by any church. This general attitude formed the basis of the framer’s conception of “separation of church and state” (cf. separation of religion and state).

This is further exemplified by early documentary evidence: 

To end the Revolutionary War (and officially establish the United States as a sovereign nation), the Congress sent a delegation to Paris in 1783 to enter into a treaty ending the war Thus, it was the Paris Peace Treaty which actually granted the United States independence from Great Britain and made the United States a nation on September 3, 1783. The preamble to this Treaty states that it is based upon the “Holy and undivided Trinity”, an obvious reference to Christianity. The Treaty ends just like the Constitution and other official documents with the acknowledgement that it is being signed in the “Year of our Lord.” The signing representatives of the United States were John Adams, Benjamin Franklin, and John Jay.

These American founders not only signed their names, they “caused the seals of our arms to be affixed thereto.” The affixing of one’s seal was essential to any formal agreement and the choice of one’s seal was considered profound and highly meaningful personally. Our choice of a national seal was not only of great significance, it was hotly debated.

In 1782, Congress had adopted the “Seal of the United States” with two sides (which are still the same). The obverse has this symbology…

Great Seal of the United States (reverse).svg

We need not resort to “conspiracy theories” regarding Freemasonry or other influences to know the meaning of the most obvious symbol - the radiant “Eye of Providence” overhead. The Eye of Providence was a fairly common Christian symbol used during the Renaissance and period before the American Revolution. The eye and the Motto “Annuit Cœptis” were intended to signify the many “interpositions of providence in favour of the American cause”[9].  “Annuit Cœptis” is translated by the U.S. State Department, the U.S. Mint and the U.S. Treasury as, "He [God] has favored our undertakings".  “Novus ordo seclorum” ("New order of the ages") was taken from the fourth Eclogue of Virgil – a poem that Christians read as a prophecy of the coming of Christ[10]. While it is possible to read these mottoes without Christian or religious meaning, the founders would not have. But what the history of the choice of our “Great Seal” indicates is that the founders compromised between direct expressions of religious bias within government and vagueness sufficient to leave doubt. This methodology has continued ever since.

While some of the founders and framers sought to avoid direct religious expression within our laws, they could not avoid practical and indirect acknowledgement of our religious heritage. Here are a few key examples:

·         “If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law,” US Constitution, Article 1, Section 7 [Emph. Added].

·         The Constitution was signed by the delegates in the “Year of our Lord.” Ibid, Article 7.

The Constitution itself has no provisions regarding religion except that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States". Ibid, Article 6.

During the constitutional debates of 1788 some delegates refused to accept a constitution which didn’t include a “bill of rights” (as was included in the English Bill of Rights of 1689). But rather than hold up the enactment process, a compromise was reached based upon a promise to add a “Bill of Rights” later. By the time the delegates returned to debate these first constitutional amendments, several states had adopted their own list of rights. Most notably was the Virginia Declaration of Rights which included the provision that "all men are equally entitled to the free exercise of religion".

When James Madison first proposed thirty-nine amendments to the Constitution (as would become the foundation of the “Bill of Rights”) he suggested this language: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.” [Emph. Added] (June 8, 1789). However, the ultimate language adopted by Congress was quite different: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (First Amendment ratified on December 15, 1791, the “Establishment Clause” and the “Free Exercise Clause”, respectively). Because of Madison’s proposal, we know that the framers of the Constitution chose to disassociate religious freedom from civil and equal rights.

The actual language of the First Amendment’s religion clauses is both restrictive and conflictive. It is clearly written as a prohibition against two things – laws regarding “an establishment of religion” or prohibiting the free exercise of religion (or perhaps an establishment of religion). Of course, our courts have not read the First Amendment this way (as below) and our common understanding of these clauses is based upon clear misreading of them.

Careful reading shows that the framers were either careless in their wording or intentionally vague. I suggest both. The phrase “respecting the establishment of religion” has three key words and two are   vague:

·         Respecting: about, concerning, regarding, or relating to something. As used here it is apparently meant to be broadly inclusive.

·         Establishment: This can refer to either an act or a fact, but when preceded by “an” we generally it as referring to being factual  (as “an establishment” ) – referring to something already existing[11]. In contrast, “the establishment of” would normally refer to an act of creating something unless preceded by an identifier as in “the Democratic establishment of the U.S.”).  

·         Religion: “Defining the word ‘religion’ is fraught with difficulty”[12].This word has several meanings that could apply[13]:

o   the belief in a god or in a group of gods

o   an organized system of beliefs, ceremonies, and rules used to worship a god or a group of gods

o   an interest, a belief, or an activity that is very important to a person or group

o   the service and worship of God

o   a personal set or institutionalized system of religious attitudes, beliefs, and practices

o   a cause, principle, or system of beliefs held to with ardor and faith

As used in the First Amendment, it is commonly read as meaning “church” or as an ecclesiastical organization (thus, “separation of church and state”). The word “church” does not appear in the Constitution or its Amendments[14].

There are at least three reasonable ways to read “the establishment of religion”:

1.       As we would say “the religious establishment” – the institution, enterprise, the existing power structure, the dominant religious groups, or the religious authorities. “The Establishment of Religion” – that group of people having institutional authority within religion. Thus, the First Amendment would prohibit Congress from passing any law which relates to any existing established religion or religious institution.

2.       As we might say “to establish a religion” – the act of creating or implementing a religious system or institution. Thus, the First Amendment would prohibit Congress from passing any law which relates to creating or implementing a religion.

3.       Or, as we might say “concerning any act or fact relating to belief or service of God or any set of beliefs and practices which one holds with ardor and faith.” Thus, the First Amendment would prohibit Congress from passing any law concerning God or an individual’s beliefs and service of faith.

Again, the words themselves do not tell us which of these meanings was intended (and there may be other interpretations that are reasonable). The follow-up clause may provide some indication – or it may not.  Prohibiting the free exercise of “an establishment of religion” or a just “religion” leaves us with the same problem. “Religion” is simply not defined for us and whether we are talking about an establishment of religion or just religion in general is also uncertain[15].

Constitutional scholars have identified three competing understandings of  the Establishment Clause:

1.       "Strict separation" which dictates that "to the greatest extent possible government and religion should be separated,

2.       "Neutrality" under which "the government cannot favor religion over secularism or one religion over another, and

3.       "Accommodation" by which the Court should interpret the establishment clause to recognize the importance of religion in society and accommodate its presence in government."[16]

The courts (as below) have used each of these approaches and we simply cannot say which is correct. What seems clear is that some of the founding fathers and framers understood the intent of these words as “separating church and state”. And yet, most of those same persons had no problem with mixing their personal religious views or practices with official state business. Most of the same men who approved the First Amendment also approved this measure:

"Congress ... considering the present critical, alarming and calamitous state ... do earnestly recommend, that Thursday, the 12th of July next, be observed by the inhabitants of all the English Colonies on this Continent, as a Day of Public Humiliation, Fasting and Prayer, that we may with united hearts and voices, unfeignedly confess and deplore our many sins and offer up our joint supplications to the Aliwise, Omnipotent and merciful Disposer of all Events, humbly beseeching Him to forgive our iniquities.... It is recommended to Christians of all denominations to assemble for public worship and to abstain from servile labor and recreations of said day."

Continental Congress, June 12, 1775 (under John Hancock).

On March 16, 1776, the same Continental Congress passed a resolution (without dissent) declaring:

“The Congress … desirous … to have people of all ranks and degrees duly impressed with a solemn sense of God’s superintending providence, and of their duty, devoutly to rely … on his aid and direction … We do earnestly recommend Friday, the 17th day of May be observed by the colonies as a Day of Humiliation, Fasting and Prayer; that we may, with united hearts, confess and bewail our manifold sins and transgressions, and, by sincere repentance and amendment of life, appease God’s righteous displeasure, and, through the merits and mediation of Jesus Christ, obtain this pardon and forgiveness.”

George Washington, as first President (and “Father of the Nation”) implemented national days of prayer and fasting during his first years in office[17]. His successor, John Adams issued this proclamation on March 23, 1798:

“As the safety and prosperity of nations ultimately and essentially depend on the protection and blessing of Almighty God; and the national acknowledgment of this truth is not only an indispensable duty which the people owe to Him, but a duty whose natural influence is favorable to the promotion of that morality and piety, without which social happiness cannot exist, nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent… that Wednesday, the 9th day of May next be observed throughout the United States, as a day of Solemn Humiliation, Fasting and Prayer…”

Except for Thomas Jefferson and Andrew Jackson every president has proclaimed at least one national day of prayer[18]. Even President James Madison, who had written the precursor to the First Amendment, issued such a proclamation (albeit more “generic” than that of John Adams above)[19]. Madison,
who was said to believe in a "perfect separation"" between religion and government, stated that:

"Religious proclamations by the Executive recommending thanksgivings and fasts are shoots from the same root with the legislative acts [known as “the chaplaincies”|."

He regarded such proclamations as violating the Establishment Clause as they “imply and certainly nourish a national religion." But it was also Madison who argued that the intent of the framers of the Constitution was less germane to understanding the law than the intent of the

When, in the First Congress after the adoption of the Constitution, a resolution was offered in the House to request the president to "recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favours of Almighty God," an objection was raised by Thomas Tucker of South Carolina who suggested that "it is a business with which the Congress have nothing to do; it is a religious matter, and as such is proscribed to us. If a day of thanksgiving must take place, let it be done by the authorization of the several states." Tucker's comment is of special interest because it occurred on the same day (the 25th of September, 1789) that the First Amendment and “Bill of Rights” was approved by Congress and submitted to the states for ratification after more than a month of debate in Congressional committees. Tucker’s view at that time was that a thanksgiving proclamation was a "religious matter" and was "proscribed" to Congress. This strongly suggests that he understood the Establishment Clause to prohibit Congress from engaging in religious acts.[20]

But the effort to discern the intent of the framers of the First Amendment has allowed arguments on all sides to claim supporters among the signers. That effort is fundamentally negated by the person primarily responsible for creating the Bill of Rights…

James Madison was probably the primary draftsmen of the Constitution and the Bill of Rights and he argued that future interpreters of these founding documents should not look primarily to the intentions of the framers:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages arc constantly subject. What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense!”[21]

Madison believed that the intentions of the framers are not as significant as the intentions and understanding of the citizens of the various states (and their representatives) who ratified the Constitution. Madison was so emphatic about this that he delayed publication of his notes regarding the Constitutional Convention until after his death:

“till the Constitution should be well settled by practice, and till a knowledge of the controversial part of the proceedings of its framers could be turned to no improper account. ... As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character.”[22]

The First Amendment has been the subject of several significant Supreme Court decisions[23], but the Court’s approach has been conservative, mixed, and not much clearer than the vague wording of the Clauses. Perhaps the most direct and prevalent ruling was that in the 1947 case of Everson v. Board of Education, 330 U.S. 1 where the majority opinion held that”

Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion.  (ibid at 15).

The Court has been forced to confront its earlier rulings which have taken a convoluted approach in applying the Establishment and Free Exercise Clauses. In his majority opinion for Everson, Justice Black reiterates that:

"The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U. S. 105, commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression "law respecting an establishment of religion" probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights.”[24]

“[A state] cannot, consistently with the "establishment of religion" clause of the First Amendment, contribute tax raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion.”

“The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.”

Here the Court confronted the conflicting concepts between the religion clauses of the First Amendment and held that the State of New Jersey could tax a citizen for the cost of “reimbursement of parents for fares paid for the transportation by public carrier of children attending public and Catholic schools.” The problem with this ruling was very well expressed by Justice Jackson in his dissent:

“[T]he effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today. This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to keep religion's hands off the state, and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse. Those great ends, I cannot but think, are immeasurably compromised by today's decision.” (ibid at 26-27).

The conflict inherent between the Establishment and Free Exercise Clauses is clear – the government is not supposed to be involved with religion but has an obligation to protect religious freedom. But the less obvious conflict has similar results – religion is an inherent part of our society “of the people” and the people have chosen to have religion underlie their government while demanding that a “wall” exist between government and religion. This second conflict became clear early in our government regarding chaplaincies.

When the Continental Congress opened its session on September 7, 1774, the Reverend Jacob Duché of Christ Church in Philadelphia offered a prayer – “O Lord our Heavenly Father, high and mighty King of kings, and Lord of lords, who dost from thy throne behold all the dwellers on earth and reignest with power supreme and uncontrolled over all the Kingdoms, Empires and Governments…” (35th Psalm). After some debate regarding whether Congress should have a Chaplain to offer an invocation during the Continental Congress’ early sessions, Jacob Duche was elected Chaplain of Congress on July 9, 1776.[25] Thus, “since the beginning of the Republic, Congress has retained and paid permanent clergy to offer prayers to God on the government's behalf.”[26] This seemingly innocuous " acknowledgment of beliefs widely held among the people of this country”[27] has provided a foundation for governmental chaplains.

The Continental Congress authorized pay for Continental Army chaplains on July 29, 1775 and also authorized chaplains for its ships.[28] But these actions preceded the Bill of Rights. The first congress under both the Constitution and Bill of Rights continued the tradition of opening with morning prayers. Early in their sessions (on April 7, 1789) Congress appointed a committee to devise a method of electing and paying chaplains. James Madison was a member of that committee even though he said that he opposed such a system at that time and he questioned whether paid Chaplains were unconstitutional under the Establishment Clause,[29] he voted with the committee and then with Congress not only to approve the establishment of  military chaplains - they directed military commanders "to take care that divine services be performed twice a day on board, and a sermon preached on Sunday, unless bad weather or other extraordinary events occur."[30] Madison voted to authorize the chaplaincy in 1791, 1794, and 1797(as a member of Congress) and signed such an authorization in 1814 when he was President.[31] Perhaps Madison thought:

"I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and civil authority with such distinctness as to avoid collisions & doubts on unessential points. The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them will be best guarded against by an entire abstinence of the government from interference in any way whatsoever, beyond the necessity of preserving public order & protecting each sect against trespasses on its legal rights by others." (James Madison in a letter to Jasper Adams, September 1833).

The Supreme Court has never taken the opportunity to address the matter of military chaplains, but has expounded the traditional Establishment Clause jurisprudence:

“[I]f the government overtly discriminates in favor of one religion or sect over another, it violates the Establishment Clause.  Absent such overt discrimination, the courts generally, but not always, apply a three-part test set forth in Lemon v. Kurtzman to determine whether a facially neutral governmental program violates the First Amendment. Under such circumstances, a court will uphold governmental action only if: (1) the law has a secular legislative purpose; (2) the law's primary effect is neither to advance nor inhibit religion; and (3) the law does not foster an excessive government entanglement with religion. The U.S. Supreme Court described the "three main evils against which Establishment Clause was intended to afford protection [as]: 'sponsorship, financial support, and active involvement of the sovereign in religious activity’."[32]

The only federal Court of Appeals decision directly relating to the military chaplaincy was Katcoff v. Marsh, 755 F.2d 223 (2nd Cir. 1985)[33] where the Court held that the U.S. Army’s chaplaincy was constitutional because service members have a constitutional right under the Free Exercise Clause to engage in religious worship and that the Army would unduly burden that right if it did not provide chaplains. However, several Supreme Court Justices have mentioned the chaplaincy or the accommodation aspect of the Establishment Clause in related cases[34] (here I mention only two):

“There are certain practices, conceivably violative of the establishment clause, the striking down of which might seriously interfere with certain religious liberties also protected by the First Amendment. Provision for churches and chaplains at military establishments for those in the armed services may afford one such example. The like provision by state and federal governments for chaplains in penal institutions may afford another example. It is argued that such provisions may be assumed to contravene the establishment clause, yet be sustained on constitutional grounds as necessary to secure to the members of the armed forces and prisoners those rights of worship guaranteed under the free exercise clause.” Justice Brennan, concurring, in School District of Abington Township v. Schempp, 374 U.S. 203 (1963).

 “We are a religious people whose institutions presuppose a Supreme Being,.. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups.” Justice Douglas for the majority in Zorach v. Clauson, 343 U.S. 306, 313 (1952).[35]

 

Because the Supreme Court has had a tendency to abandon the test detailed in Lemon or to apply it flexibly gives the courts the opportunity to utilize the “accommodationist” view of the Establishment Clause. Thus, our courts "recognize, accommodate, and even honor the central role that religion plays in society [as] consistent with historical traditions, national expectations, and most importantly, the Establishment Clause.”[36] In short, the government violates the Establishment Clause "only if it literally establishes a church, coerces religious participation, or favors one religion over others.” [37]

It is probably best to view the First Amendments religious clauses as evolving works which are slow to adapt to a changing society. We should recall that states continued to sponsor official state churches until 1833 as the Bill of Rights were not deemed applicable to state action until the adoption of the Fourteenth Amendment (1868) and the Free Exercise Clause was first made applicable to the states in Cantwell v. Connecticut (1940). The Establishment Clause was first found to be “incorporated” and applied to the states in Everson v. Board of Education (1947)[38]. Thus, the “religious freedoms and protections” we now discuss essentially began less than 70 years ago[39].

This explains how Congress passed a statute requiring that all regimental chaplains be "ordained Christian clergymen" in 1861 (Act of July 22, 1861, 12 Stat. 270)[40] and the words “In God We Trust” first appeared on U.S. coins in 1864. (It became the official motto of the United States via a Joint Resolution passed by the 84th Congress (P.L. 84-140) and approval by President Eisenhower on July 30, 1956). And even after “incorporation”, it seems clear that the courts have "prevented a judicial inquiry into the constitutionality of maintenance of chaplains in the armed forces and in the Congress"[41] and have bounced between accommodationist and strict interpretationist views depending upon the nature of the ruling.

This seems most clear in the Supreme Court cases dealing with marriage. Marriage has long been a religious celebration of lifelong heterosexual monogamy, but it also has social, legal, moral, and rights implications. Thus, marriage has long been an odd intersection between state and religion. Our failure to separate “church and state” in regards to marriage has pointed to some of the best reasons for maintaining a wall between them. If marriage had been a religious ceremony and spousal union a private civil agreement, we would have readily avoided many issues and problems.

In the tradition of English common law (from which many of our legal doctrines and concepts were adapted), a marriage was a contract (a private agreement) between a man and a woman to become husband and wife. From a religious perspective, marriage was a public commitment viewed as the basis of the family unit vital to the preservation of morals and continuation of civilization. From our state government perspective, marriage was an important legal and civil contract which served to identify those eligible for certain social benefits[42], privileges[43], recognitions[44], and protections[45].  From the beginning of our nation, marriage was fully within the purview of the state and most states gave full control over marriage to either the state sponsored religion or the religious authorities chosen by the couple. Under the Constitution (Article IV, Section 1), states were requires to give “full faith and credit” to the "public acts, records, and judicial proceedings of every other state" and therefore conflicts were sure to arise wherever marriage laws and policies differed between states.

The federal government also needed to develop policies which gave specific interpretation to “marriage” and some agencies, such as the US Citizenship and Immigration Services (who qualifies for immigration status), the IRS (federal spousal tax benefits) and the US Office of Personnel and Management (federal employee benefits where a spouse works for the federal government), and  the Social Security Administration (Social Security benefits under a spouse's work history) offered specific definitions or requirements for qualification as a spouse. The Constitution does not require the federal government to give “full faith and credit” to state law, policy, or practice so it was again clear that conflicts would arise.

The Full Faith and Credit Clause was not interpreted so as to require a state to recognize a marriage it did not wish to recognize. This created problems for certain divorcees, inter-racial spouses, and “unusual” sexual spouses (e.g. transsexuals, homosexuals, and bi-sexuals)[46]. Until the Supreme Court struck down all laws banning interracial marriage in 1967, a number of states banned interracial marriage and did not recognize marriage certificates issued in other states for interracial couples. Many states had laws making homosexual sex unlawful – even after same-sex marriages started becoming legal in other states. Over 30 states had constitutional amendments or state laws that restricted marriage to one man and one woman. The evolution of First Amendment religious freedom laws has occurred over a bumpy road.

We are still in the midst of perhaps the greatest single jump in this evolution – the legalization of same-sex marriage across the nation. In June of 2015, the Supreme Court made same-sex marriage legal in all U.S. states and territories (Obergefell v. Hodges 576 U.S. ___ (June 26, 2015)). However, the Court in its ruling did not rely on the Full Faith and Credit Clause, but said instead that same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State merely because of its same-sex character.

A common issue brought forward in the same-sex marriage debate has been one of “morality”. Some argue that religion provides a moral foundation which the government cannot… especially when it comes to the most basic family structure[47]. It is logical to say that the government (and society in general) has a profound interest in the integrity and well-being of marriage because there is a profound public significance in the welfare of children. In addition, "[t]here is scarcely a dollar that state and federal government spends on social programs that is not driven in large part by family fragmentation: crime, poverty, drug abuse, teen pregnancy, school failure, mental and physical health problems."[48]

One of the great ideas of Western civilization has been the power of the state to enforce “profound and deep convictions accepted as ethical and moral principles” through the criminal code. However, the state’s obligation is to treat its citizens equally, not to “mandate [its] own moral code.”[49] “[M]oral disapproval, without any other asserted state interest, has never been a rational basis for legislation.”[50] . As it stands, for some it seems that many moral, theological, and spiritual questions about marriage and separation of church and state are every bit as open and unconstrained as they were before. By using an argument to legalize same-sex marriage built from a “fundamental right” instead of “religious freedom”, our highest court has left us with many unanswered questions.

And so we see that there is no “wall” or even a small moat between church and state. The small creek dividing them has numerous bridges and our courts and lawmakers are free to build new ones as they please. I close with the following assessment because it is “right on”…

A strict separationist view is not supported by the Constitution. Indeed, such an approach would contradict other parts of the First Amendment, in important ways. Most obviously, it would be at war with the protection of the “free exercise” of religion. The correct understanding of the First Amendment is not that it forbids contact—and even voluntary cooperation—between church and state. Rather, it protects private religious liberty, but does so in two complementary ways. In a nutshell, government may neither compel nor prohibit religious exercise.”[51] 

(Unless it wants to). (RVW).

Some of my Favorite Quotes Regarding Religious Freedom and the Government

 “...legitimate powers of government reach actions only, & 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 & 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 to man all his natural rights, convinced he has no natural right in opposition to his social duties.” 
 
Thomas Jefferson, Letters of Thomas Jefferson

“The purpose of separation of church and state is to keep forever from these shores the ceaseless strife that has soaked the soil of Europe in blood for centuries.

[Letter objecting to the use of government land for churches, 1803]” 
 
James Madison

“As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen [Muslims],—and as the said States never entered into any war or act of hostility against any Mahometan [Mohammedan] nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

[Adams submitted and signed the Treaty of Tripoli, 1797]” 
 
John Adams, Thoughts On Government Applicable To The Present State Of The American Colonies.: Philadelphia, Printed By John Dunlap, M,Dcc,Lxxxvi

 “The fundamental basis of this nation’s laws was given to Moses on the Mount…If we don’t have a proper fundamental moral background, we will finally end up with a totalitarian government which does not believe in rights for anybody except the State.” 
 
Harry S. Truman

“When the government puts its imprimatur on a particular religion it conveys a message of exclusion to all those who do not adhere to the favored beliefs. A government cannot be premised on the belief that all persons are created equal when it asserts that God prefers some.” 
 
Harry A. Blackmun

The fact is that far more crime and child abuse has been committed by zealots in the name of God, Jesus and Mohammed than has ever been committed in the name of Satan. Many people don’t like that statement, but few can argue with it.” 
 
Carl Sagan, The Demon-Haunted World: Science as a Candle in the Dark

“Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations… The danger of silent accumulations and encroachments by ecclesiastical bodies has not sufficiently engaged attention in the U.S.” 
 
James Madison

“[T]here remains [in some parts of the country] a strong bias towards the old error, that without some sort of alliance or coalition between Govt. & Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both parties, that the danger cannot be too carefully guarded agst.” 
 
James Madison, James Madison: Writings

“Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing that religion & Govt. will both exist in greater purity, the less they are mixed together.

[Letter to Edward Livingston, 10 July 1822 - Writings 9:100--103]” 
 
James Madison, James Madison: Writings

“Therefore I think it seems required of me, and my Duty, as a Man, to pay Divine Regards to SOMETHING”. . Articles of Belief and Acts of Religion Benjamin Franklin November 20, 1728

Jan.1.1802 “Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & 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 to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

Jefferson's Letter to the Danbury Baptists (1802)

“The last Assembly, in their Supply Bill, provided for a chaplain to our regiment, for whom I had often very unsuccessfully applied to Governor Dinwiddie. I now flatter myself, that your Honor will be pleased to appoint a sober, serious man for this duty. Common decency, Sir, in a camp calls for the services of a divine, and which ought not to be dispensed with, altho’ the world should be so uncharitable as to think us void of religion, and incapable of good instructions.” an excerpt from a letter dated April 17, 1758, in which George Washington–then an officer in the British Army–asks that a chaplain be appointed to serve over his regiment.

Colonel Washington requested during the French and Indian War that Virginia create a chaplain corps that could minister to the varied faith-specific needs of his troops. Anson Phelps Stokes, Church and State in the United States 268 (1950).

 

“Of all the animosities which have existed among mankind, those which are caused by a difference of sentiments in religion appear to be the most inveterate and distressing, and ought to be deprecated. I was in hopes that the enlightened and liberal policy, which has marked the present age, would at least have reconciled Christians of every denomination so far that we should never again see the religious disputes carried to such a pitch as to endanger the peace of society.”
George Washington, letter to Edward Newenham, October 20, 1792

“We have abundant reason to rejoice that in this Land the light of truth and reason has triumphed over the power of bigotry and superstition … In this enlightened Age and in this Land of equal liberty it is our boast, that a man’s religious tenets will not forfeit the protection of the Laws, nor deprive him of the right of attaining and holding the highest Offices that are known in the United States.”
George Washington, letter to the members of the New Church in Baltimore, January 27, 1793

“We should begin by setting conscience free. When all men of all religions … shall enjoy equal liberty, property, and an equal chance for honors and power … we may expect that improvements will be made in the human character and the state of society.”
John Adams, letter to Dr. Price, April 8, 1785, quoted from Albert Menendez and Edd Doerr, The Great Quotations on Religious Freedom (1991)

“In every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot, abetting his abuses in return for protection to his own. It is error alone that needs the support of government. Truth can stand by itself.”
Thomas Jefferson, in a letter to Horatio Spofford, 1814

“Christianity neither is, nor ever was a part of the common law.”
Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814

“It is only when the people become ignorant and corrupt, when they degenerate into a populace, that they are incapable of exercising the sovereignty. Usurpation is then an easy attainment, and an usurper soon found. The people themselves become the willing instruments of their own debasement and ruin. Let us, then, look to the great cause, and endeavor to preserve it in full force. Let us by all wise and constitutional measures promote intelligence among the people as the best means of preserving our liberties.”
James Monroe, First Inaugural Address, March 4, 1817

“As this will be the last annual message which I shall have the honor of transmitting to Congress before my successor is chosen, I will repeat or recapitulate the questions which I deem of vital importance which may be legislated upon and settled at this session: 
        First. That the States shall be required to afford the opportunity of a good common-school education to every child within their limits. 
        Second. No sectarian tenets shall ever be taught in any school supported in whole or in part by the State, nation, or by the proceeds of any tax levied upon any community. Make education compulsory so far as to deprive all persons who can not read and write from becoming voters after the year 1890, disfranchising none, however, on grounds of illiteracy who may be voters at the time this amendment takes effect. 
        Third. Declare church and state forever separate and distinct, but each free within their proper spheres; and that all church property shall bear its own proportion of taxation (emphasis added).

Ulysses S. Grant in his seventh annual address (State of the Union address) to the Congress, December 7, 1875 from A Compilation of the Messages and Papers of the Presidents. Vol. X. New York: Bureau of National Literature, Inc., 1897, p. 4310.

[52]Thomas Paine – Like most of the Founders, he was a Deist who rejected orthodox Christianity. He said, instead, that his religion was “to do   good.”

“As to religion, I hold it to be the indispensable duty of government to protect all conscientious protesters thereof, and I know of no other business government has to do therewith. ” ~~ Common Sense, 1776.

“Persecution is not an original feature in any religion; but it is always the strongly marked feature of all religions established by law.”  ~~ The Rights of Man, 1791-1792

“All national institutions of churches, whether Jewish, Christian or Turkish, appear to me no other than human inventions, set up to terrify and enslave mankind, and monopolize power and profit.”

 

Thomas Jefferson – Jefferson was a Deist, though he did have respect for Jesus as a teacher of moral truths. He did not attend church and rejected the Bible’s teachings. Many of his contemporary Christians dismissed Jefferson as a heretic.

“… 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.” ~~ Letter to the Danbury Baptists, January 1, 1802

“[E]very one must act according to the dictates of his own reason, and mine tells me that civil powers alone have been given to the President of the U.S. and no authority to direct the religious exercises of his constituents.” ~~ Letter to Rev. Samuel Miller, January 23, 1808

“The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg.” ~~ Notes on the State of Virginia , 1781 – 1785

“History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance of which their civil as well as religious leaders will always avail themselves for their own purposes.” ~~  letter to Alexander von Humboldt, December 6, 1813

 

John Adams –  Adams was a Trinitarian Unitarian. He did not attend other churches and considered himself outside of orthodox religion.

“The Government of the United States is not in any sense founded upon the Christian Religion.” 1797, The Treaty of Tripoli, initiated by President Washington, signed by President John Adams, and approved by the Senate of the United States

The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or in America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses. ~~ “A Defence of the Constitutions of Government of the United States of America,” 1787-88

Thirteen governments [of the original states] thus founded on the natural authority of the people alone, without a pretence of miracle or mystery, and which are destined to spread over the northern part of that whole quarter of the globe, are a great point gained in favor of the rights of mankind. ~~ “A Defence of the Constitutions of Government of the United States of America” 1787-1788

 

George Washington – He occasionally  attended churches as an adult, including the Episcopalian/Anglican church, a Roman Catholic church, and at least one Quaker meeting. Washington never espoused a formal religious affiliation as an adult, considering himself a Deist.

“We have abundant reason to rejoice, that, in this land, the light of truth and reason has triumphed over the power of bigotry and superstition, and that every person may here worship God according to the dictates of his own heart. In this enlightened age, & in this land of equal liberty, it is our boast, that a man’s religious tenets will not forfeit the protection of the laws, nor deprive him of the right of attaining & holding the highest offices that are known in the United States.” ~~ Letter to the members of The New Church in Baltimore, January 1793

“If I could conceive that the general government might ever be so administered as to render the liberty of conscience insecure, I beg you will be persuaded, that no one would be more zealous than myself to establish effectual barriers against the horrors of spiritual tyranny, and every species of religious persecution.”
~~ Letter to the United Baptist Chamber of Virginia, May 1789

 

Benjamin Franklin – Baptized and raised as an Episcopalian, he became a Deist as an adult. He seldom attended church. He professed belief in a “Creator” but not in the divinity of Jesus.

“I cannot conceive otherwise than that He, the Infinite Father, expects or requires no worship or praise from us, but that He is even infinitely above it.” ~~Articles of Belief and Acts of Religion,  1728

“When a religion is good, I conceive it will support itself; and when it does not support itself so that its professors are obliged to call for the help of the civil power, ’tis a sign, I apprehend, of its being a bad one.”

 

James Madison – A Deist, Madison sometimes attended an Episcopalian/Anglican church. He strongly opposed efforts by church leaders to make the new nation a theocracy. Instead, he worked with Baptists to ensure religious liberty for all and to maintain the separation of church and state.

“The members of a Govt as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot form an ecclesiastical Assembly, Convocation, Council, or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever, in the same manner as any other individuals might do. But then their recommendations ought to express the true character from which they emanate.”  ~~ Notes on Government Issued Religious Proclamations

“[T]he number, the industry, and the morality of the Priesthood, & the devotion of the people have been manifestly increased by the total separation of the Church from the State.” ~~ -Letter to Robert Walsh, March 2, 1819

“The civil government … functions with complete success … by the total separation of the Church from the State.”
~ Writings, 1819

“Because the Bill [to institute an assessment to fund teachers of Christianity] implies either that the Civil Magistrate is a competent Judge of Religious Truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation.” ~~ Memorial and Remonstrance Against Religious Assessments, 1785

 

 



[1] Without specific citation or quotation, I have relied heavily upon the following in this section… http://americanhistory.oxfordre.com/view/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-29

 

[2] Which was particularly at issue in the colonies with official “state” religions: New York, Virginia, North Carolina, South Carolina, and Georgia were officially Church of England. See http://americanhistory.oxfordre.com/view/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-29.

[3] Dickinson was considered the author of the Articles of Confederation (approved by Congress in 1777 and ratified in 1781) and was one of the five people to sign both the Articles of Confederation and the United States Constitution.

[4] Drawing. by Benson Lossing, for Harper's New Monthly Magazine, July 1856. General Collections, Library of Congress (106). Jefferson liked Franklin's motto so much he ended up using it on his personal seal.

[7] As one of the most eloquent statements of religious freedom ever written, Jefferson’s statute influenced both the drafting of the First Amendment to the U.S. Constitution and the United States Supreme Court's understanding of religious freedom. See http://www.encyclopediavirginia.org/Virginia_Statute_for_Establishing_Religious_Freedom_1786.

[8] “Articles of Belief and Acts of Religion” by Benjamin Franklin, November 20, 1728.

[9] Annuit Cœptis (“Providence favors our undertakings”) replaced Deo Favente (“with God’s favor”). The particular pyramid used in the Great Seal was derived from Pyramidographia, a book published in 1646 in London by John Greaves. See http://greatseal.com/mottoes/coeptis.html.

[10] See “Medieval Allegory and the Building of the New Jerusalem” by Ann Raftery Meyer, DS Brewer (2003), pp. 13-14 citing “The Allegorical Epic: Essays in its Decline and Fall” by Michael M. Murrin, U of Chicago Press (1980).

[11] See http://dictionary.reference.com and the note that “established church" is used as early as 1731 referencing the Online Etymology Dictionary, Douglas Harper (2010).

[14] According to my search in http://constitutionus.com/

 

[15] While President, James Madison vetoed a bill relating to the Establishment Clause and quoted it as:”Congress shall make no law respecting a religious establishment.” At least one Constitutional scholar, Leonard Levy, believes: "[Madison's] use of ‘religious establishment’ instead of ‘establishment of religion’ shows that he thought of the clause in the Frist Amendment as prohibiting Congress from making any law touching or ‘respecting’ religious institutions or religions.” “The Establishment Clause: Religion and the First Amendment” by Leonard Levy, MacMillan (1986) , p. 119.

[16]  “Constitutional Law” by Erwin Chemerinsky, Wolters Kluwer Law & Business (3d ed. 2006), pp. 1192-96.

[17] On October 3, 1789, President Washington called for a national day of prayer and thanksgiving to be observed on Thursday, November 26, 1789… the basis of our “Thanksgiving”.

[18]Religion and the Continental Congress, 1774–1789: Contributions to Original Intent” by Derek H. Davis, Oxford University Press (2000). p. 90. Note that the First Amendment only mentions “Congress” and not the Executive or Judicial branches.

[19] Ibid.

[20] Ibid, p. 89.

[21] From Madison’s letter to H. Lee in June of 1824 quoted from “Letters and Other Writings of James Madison, Vol. 3”, by James Madison, J. B. Lippincott & Company (1884), p. 442. See “Religion and the Continental Congress, 1774-1789: Contributions to Original Intent” by Derek H. Davis of Baylor University, Oxford University Press (2000), p.4, and “The First Freedoms: Church and State in America to the Passage of the First Amendment” by Thomas J. Curry, Oxford University Press (1986).

[22]  “James Madison and the Creation of the American Republic” by Jack N. Rakove, Scott,Foresman/Little, Brown Higher Education (1990), p. 170 citing “The Constitutional Convention of 1787: A Comprehensive Encyclopedia of America's Founding, Vol.1” by John R. Vile, ABC-CLIO (2005), p. 439.

[23] The Supreme Court has addressed the Establishment Clause in many cases, including: McCreary County, Ky. v. ACLU of Ky., 545 U.S. 844, 875 (2005); there can be no favoritism "between religion and irreligion,"; Board of Educ. v. Grumet, 512 U.S. 687, 703 (1994), or "between religion and nonreligion,"; Epperson v. Arkansas, 393 U.S. 97, 104 (1968). that the government cannot "aid all religions as against non-believers,"; Torcaso v. Watkins, 367 U.S. 488, 495 (1961), that "the First Amendment embraces the right to select any religious faith or none at all,"; Wallace v. Jaffree, 472 U.S. 38, 53 (1985), that the state must "be a neutral in its relations with groups of religious believers and non-believers,"; and Everson v. Bd. of Educ., 330 U.S. 1, 18 (1947) where the “neutrality principle” was first articulated.

[26] From “The Congressional Chaplaincies” by Christopher C. Lund, 17 Wm. & Mary Bill Rts. J. 1171 (2009), p. 2 at

http://scholarship.law.wm.edu/wmborj/vol17/iss4/6.

[27] From Marsh v. Chambers, 463 U.S. 783, 792 (1983).

[28], “The History of the US Navy Chaplain Corps”, Vol.1 by Clifford Drury, NAVPERS 15807 at 3-4.

[29] He was also concerned that the provision of chaplains by a majority vote was a violation of civil rights since it seemed unfair to minorities. "Madison's ‘Detached Memoranda': Then and Now" by Leo Pfeffer in “The Virginia Statue for Religious Freedom, Its Evolution and Consequences in American History”, edited by Merrill D. Peterson and Robert C. Vaughan, Cambridge University Press (1988) pp 288-95. “Church and State in the United States”, Vol. I, by Anson Phelps Stokes and Leo Pfeffer, Harper (1950), page 456.See http://founders.archives.gov/documents/Madison/04-01-02-0548   http://press-pubs.uchicago.edu/founders/documents/amendI_religions64.html.

[30], "Religion and the Military: A Growing Ethical Dilemma," by Capt. Lawrence P. Greenslit, U.S. Army War College Strategy Research Project,  U.S. Army War College (2006), p.4.

[32] From “KATCOFF V. MARSH at Twenty-Two: The Military Chaplaincy and the Separation of Church and State” by Richard D. Rosen at http://repository.law.ttu.edu/bitstream/handle/10601/378/Rosen%20Toledo.pdf?sequence=1 (page 1139) citing Larson v. Valente, 456 U.S. 228, 245 (1982), Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), and Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327,339 (1987).

[34] For a full review of the Court’s decisions relating to government sponsored chaplains see http://www.firstamendmentcenter.org/madison/wp-content/uploads/2011/03/vol5ch4.pdf.

[35] See also “Governmental Proprietaries in Religion: Chaplaincies” in “The Law of Church and State in America: Shelters for Religion”, Vol. V, by the Reverend Dean M. Kelley, Lenore Hervey (2008) at http://www.queenschurches.org/Programs/Resources/LOCS.htm and “Instruments of Accommodation: The Military Chaplaincy and the Constitution” by Robert W. Tuttle & Ira C. Lupu, GW Law Faculty Publications, 110 W. Va. L. Rev. 89 (2007) at http://scholarship.law.gwu.edu/cgi/viewcontent.cgi? article=2149&context=faculty_publications.

[36] “Evaluating the Supreme Court's Establishment Clause Jurisprudence in the Wake of Van Orden v. Perry and McCreary County v. ACLU” by Christopher B. Harwood 71 Mo. L. Rev. 317, 323 (2006).

[37] Chemerjnsky, supra note 13, at 1196.

[38] The landmark case of Everson v. Board of Education has certainly impacted the subsequent interpretation of the separation of church and state in regard to the state governments, but has still left much unsettled. Everson v. Board of Education, 330 U.S. 1 (1947).

[39] “Our national obsession with God in politics is actually a recent phenomenon and would seem completely alien to any of our founders.” Jeff Schweitzer, former White House Senior Policy Analyst from http://www.huffingtonpost.com/jeff-schweitzer/founding-fathers-we-are-n_b_6761840.html.

[40] “Some Considerations on the Constitutionality of the United States Military Chaplaincy” by Klaus J. Herrmann, 14 AM. U. L. Rev. (1964), pp. 25-26.

[41] Establishment According to Engel” by Arthur E. Sutherland, Jr., , 76 HARV. L. REv. 25, 41 (1962).

[42] Such as the social security transfer and beneficiary benefits.

[43] Such as the spousal privilege which protects a spouse from having to testify against the other.

[44] Such as the “next of kin” recognition in estate and medical events.

[45] Such as the protection a spouse is given in divorce proceedings.

[47] For a thorough discussion of morality and the law see “Beyond Gay Rights: Lawrence v. Texas and the Promise of Liberty” by Philip Chapman, 13 Wm. & Mary Bill Rts. J. 245 (2004) at http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1248&context=wmborj.

[48] Maggie Gallagher in “Why we need marriage” at http://www.nationalreview.com/article/207483/stakes-maggie-gallagher.

[49]  From Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 850, (1992) from “Constitutional Interpretation” by Craig Ducat, Cengage Learning (2012), p. 1130.

[50] Lawrence v. Texas, 539 US 558 (2003) at 582 (O’Connor, J, concurring).

[51] Michael Stokes Paulsen (University Chair & Professor of Law at the University of St. Thomas) from “Where in the Constitution is ‘Separation of Church and State’?” at http://www.thepublicdiscourse.com/2010/10/1920/.

[52] The following are from http://aattp.org/twenty-quotes-from-the-founding-fathers-on-the-separation-of-church-and-state/  (Americans Against the Tea Party).

 

 

 

 

 

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