Eversons Role in the Separation of Church and State Debate?

Posted by Adam

Jul 8

Extract from Rachael J. Denhollander’s article “If the foundations be destroyed” inVol. 24(1) 2010 of the “Journal of Creation” publication.

The “beginning of the end” for teaching creation science or Intelligent Design (ID) in the public school classroom came in 1947, in Everson vs Board of Education, a case which, interestingly enough, addressed no issue of science at all, and was actually decided in favor of the more “conservative” client. What Everson did do, however, is completely reshape the understanding of the First Amendment to the United States Constitution, ultimately providing the framework for banning creation science and ID in the classroom.

The Establishment Clause in the U.S. Constitution simply states that “Congress shall make no law respecting an establishment of religion.” Thus, in every Establishment Clause challenge, the Plaintiff must prove two essential elements: 1) That the government is involved in religion, and 2) that such involvement has the effect of establishing a religion. Currently, there are a myriad of tests the court may apply in determining whether an establishment of religion has taken place, the most popular of which is known as the Lemon Test. The Lemon Test arose from the case Lemon vs Kurtzman, and requires a three-prong analysis which holds that the Establishment Clause has been violated if any of the following are true:

a) There is no valid secular purpose for the government’s action.

b) The primary effect of the action is not secular.

c) The government action fosters excessive entanglement with religion.

While other tests have occasionally been used or suggested, these have generally all been merely “revisions” of Lemon, rather than entirely new tests themselves. It is generally the Lemon test which has been used to rule out ID and creation science as unconstitutional, and it is Lemon which also finds its roots in the Court’s reshaping of history in Everson vs Board of Education.

Everson signaled the beginning of this paradigm shift by reinterpreting two key words in the Establishment Clause: “establish” and “religion”. Until Everson, the term establish was generally interpreted to have the same meaning ascribed to the Amendment by its author, James Madison, which was simply that Congress could not “enforce the legal observation of [religion] by law, nor compel men to worship God in any manner contrary to their conscience.”1 Both history and early case law support an interpretation of the Establishment Clause that defines “establishment” as actual, legal compulsion to engage in an act of worship. Indeed, “establishment” was defined in the first American dictionary as “the act of establishing, founding, ratifying or ordaining,” such as in “[the] Episcopal form of religion, so called, in England.”2 It was this history that led Justice Scalia to conclude that, “The coercion that was hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty.”3

Everson, however, while acknowledging the element of compulsion, extended this definition of “establish” to require that the government be “neutral” in its relations to religious organisations and faith, thus broadening the First Amendment beyond simply prohibiting the ordination of official government religion, to the requirement that the government maintain complete neutrality toward religion. This neutrality principle was explained as meaning that the government was prohibited from showing any preference whatsoever to either a specific religion, or even religion in general, over non-religion. Thus, the state was no longer simply prohibited from legally coercing observation of a religion, they were likewise barred from any activity, however slight, that could be viewed as showing favor towards any religious idea. Since Everson, this has been held to include school-sponsored, or even school-allowed prayer, Bible readings, governmental displays of the Ten Commandments, Nativity Crèches, and the teaching of ID, or creation, in the public school, under the theory that, when the government takes any official action towards religion, even if only to acknowledge the existence of a deity, they have shown a preference for religion and are no longer neutral.

Everson also began the reinterpretation of the word “religion” as well, signaling yet another titanic shift from the historical interpretation of the First Amendment. Up until the point of Everson, the definition of religion was also found in James Madison’s Memorial and Remonstrance Against Religious Assessments (1785), and held to mean “the duty which we owe to our Creator and the Manner of discharging it.” Religion, thus, was historically the convictions of a duty owed to God, and the active practice of fulfilling that duty, not merely the acknowledgment of a Deity. Thomas Jefferson shared Madison’s view, interpreting the Establishment Clause to prohibit “intermeddling with religious institutions, their doctrines, discipline, or exercises.”4

Each of the aspects which Jefferson found to be protected by the Constitution involved the active practice of a particular faith, those things which Madison referred to as the methods of discharging one’s duty to God. Early Court opinions adopted this definition as well, with the Court holding in Davis vs Beason that the term religion referenced one’s personal views of his own relations to God, the obligations those views imposed, and obedience to the perceived will of God. The Court further explained that the religion protected by the First Amendment was the right to hold to one’s own beliefs regarding the duties he owed to God, and act freely to fulfil those duties. It is these original definitions of “establish” and “religion” that allowed the Court in Scopes to rule that the mention of God in a science classroom was no different than the mention of God in America’s political documents-neither statement could be held unconstitutional, because neither statement had the effect of compelling a person to engage in a specific act of worship.

As Everson began reinterpreting the First Amendment to require neutrality towards religion, however, holding that even the acknowledgement of a deity showed religious preference, the Constitutional and historical framework for a proper understanding of the Establishment Clause was all but destroyed, and set the stage for the battle that was to follow.

Footnotes:

1. 1 Annals of Congress 730.

2. 1 Webster, N., American Dictionary of the English Language, 1st ed. 1828.

3. Lee vs Weisman, 505 U.S. 577, 640 (1992) (Scalia, J. Dissenting).

4. 11 Jefferson’s Writings 428-430 (Monticello ed. 1905).

Reproduced with permission of Creation Ministries International and will probably be available on-line in the near future at http://creation.com/journal-of-creation-241

The above excerpt is not meant to spark the ID debate but rather the Separation of Church and State debate. This excerpt is meant to show that claims of government involvement in anything religious as unconstitutional, are essentially baseless. Rather the cry should be “It’s unEversontutional.

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Filed under: Creation/Evolution, Education, Origins of Life, Politics, Religion, Science, Society & Culture

Doug Indeap

In response to a question, Madison stated that his understanding of the proposal before the First Congress was that Congress could not “enforce the legal observation of [religion] by law, nor compel men to worship God in any manner contrary to their conscience.” Madison uttered those words, though, to describe his understanding not of the First Amendment, but rather of a precursor then under consideration ("no religion shall be established by law, nor shall the equal rights of conscience be infringed"). He proposed adding the term "national," thinking that would address the expressed concerns of some. Following his motion, others expressed misgivings about the wording and scope of the proposal. Mr. Livermore suggested that it be altered to state "Congress shall make no laws touching religion, or infringing the rights of conscience." Madison withdrew his motion, and the House then considered and passed Livermore's motion. The Annals of Congress reveal little more other than that over the next several weeks, the proposal went through several more iterations and emerged as what we now know as the First Amendment ("Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof . . . .").

In keeping with this legislative history, the courts have long understood the First Amendment to mean at least what Madison stated regarding the narrower precursor of which he spoke.

As it happens, Madison later offered a detailed discussion of his understanding of the First Amendment as actually adopted. He confirmed that he understood the Constitution and First Amendment to "[s]trongly guard[] . . . the separation between Religion and Government." Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., "the appointment of chaplains to the two houses of Congress" and "for the army and navy" and "[r]eligious proclamations by the Executive recommending thanksgivings and fasts"), he considered the question whether these actions were "consistent with the Constitution, and with the pure principle of religious freedom" and responded: "In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion." What then, Madison further inquired, should be made of these various actions already taken in the nation's then "short history" inconsistent with the Constitution? Ever practical, tacitly conceding the political infeasibility of reversing these actions at that time, he answered not with a demand that they be undone, but rather with an explanation to circumscribe their ill effect: "Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature]."

It warrants noting that the Supreme Court's interpretation of the historical evidence of the framers' intent with respect to separation of church and state was unanimous in Everson v. Board of Education. All nine justices agreed on that much. They split 5-4 on how to apply the principle to the facts of the case, with the majority (led by Black) holding that it did not prevent the state from funding transportation of students to religious schools.
http://intensedebate.com/people/AristoAdam Adam

Thanks Doug,

I'm not sure that your point of order that Madison was talking about the precursor somehow nullifies his definition of the word "establish" as applied to the First Amendment. His definition of "establish" will be the same for both right?

"He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion."

Really? Can you please cite where he makes this clear?

Are you saying that Madison, and every other Church and State separatist agree that; prayer, Bible readings, Govt displays of the 10 commandments, Nativity Creches etc, are examples of the Government forcing observation of the Christian religion, and that as a law, non-observance carries with it a threat of punishment? I've never heard of a punishment for breaking this law being talked about in this debate.
Doug Indeap

Adam,

Nothing I said suggests nullifying Madison's words. Nor should it be supposed that he was speaking about "his definition of the word 'establish.'" Rather Madison was offering his understanding of the proposal then before the Congress, which stated ""no religion shall be established by law, nor shall the equal rights of conscience be infringed." The pertinent passage in the Annals of Congress reads: "Mr. MADISON said he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. Whether the words are necessary or not, he did not mean to say, but they had been required by some of the state conventions, who seemed to entertain an opinion, that under the clause of the Constitution, which gave power to Congress to make all laws necessary and proper to carry into execution the constitution, and the laws made under it, enabled them to make laws of such a nature as might infringe the rights of conscience, and establish a national religion; to prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit."

As I noted, that proposal was not adopted, and the more broadly worded one we now call the First Amendment was. Some quote Madison's statement, presume or assert he was speaking of the First Amendment, insert an "only" or "merely" somewhere in the mix, and pronounce that that is all the First Amendment means and nothing more. It is entirely illogical to suppose that Madison's brief description of a more narrowly phrased proposal somehow circumscribes the meaning of the more broadly phrased First Amendment. It is logical, though, to recognize that the Amendment means at least what Madison saw in its narrower precursor.

With respect to Madison making plain that he understood the First Amendment to guard against more than just laws creating state sponsored churches or imposing a state religion, his statements to that effect, portions of which I quoted, are found in his Detached Memoranda. Note, too, that as President he vetoed two bills, neither of which would form a national church, on the ground that they were contrary to the establishment clause.

Finally, you ask: "Are you saying that Madison, and every other Church and State separatist agree that; prayer, Bible readings, Govt displays of the 10 commandments, Nativity Creches etc, are examples of the Government forcing observation of the Christian religion, and that as a law, non-observance carries with it a threat of punishment?" Hardly. I'm hard put to imagine how anything I said could bring such an idea to mind.

Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx
http://intensedebate.com/people/AristoAdam AristoAdam

Well then, it seems like we are in agreement. Unless I'm missing something.

While Madison may have been addressing the precursor, his comments also apply to the First Amendment.

This was the point of the original post; that the First Amendment was understood in light of this definition by Madison until Everson where it was re-interpreted to mean that the government is violating the constitution whenever it expressed any favour or opinion in the religious arena. Contrasting this to pre-Everson where Madison's definition was understood to mean the government can't enforce any religion on the people or sanction an official state religion.

Your two comments: "It is logical, though, to recognize that the Amendment means at least what Madison saw in its narrower precursor." and "Hardly. I'm hard put to imagine how anything I said could bring such an idea to mind. " seem to support this. Unless, of course, like I said above, I am missing something in your reply. Your response now seems to be a point of order as to the source of Madison's comments and not in disagreement with Rachael's article?

Thanks for the link. The article provides many examples of the very thing Rachael was talking about i.e. in point 19 where it says that nativity scenes are unconstitutional. This is an example of where the word "endorsement" has been equated with "establish" which has only happened since Everson, serving the point I was making in the first place.
Doug Indeap

I haven't made my meaning clear. I largely disagree with what Denhollander says in the excerpt of his article.

1. He says Everson reinterpreted two words "establish" and "religion." I disagree. The court did not focus on those two words and did not offer definitions of them. Rather, it addressed the scope of the establishment clause as a whole.

2. He says the term "establish" was generally interpreted to have the same meaning ascribed to the Amendment by Madison in the quotation you and I have been discussing. For the reasons noted in my previous comments, I disagree. First, Madison did not purport to define the term "establish," rather he described his understanding of the entire proposal. Second, he described his understanding NOT of the First Amendment, but rather of a narrowly worded proposal that was rejected in favor of the broadly worded clause we now see in the First Amendment. Third, Madison did not say or suggest, as Denhollander asserts, that the proposal means "simply" or "only" what Madison summarized. Put simply, Madison did not ascribe to the First Amendment the meaning Denhollander says he did.

3. Indeed, Madison flatly rejects the limited scope of the First Amendment that Denhollander attributes to him. See his Detached Memoranda and his veto messages.

I note too that Denhollander invokes Jefferson in dubious fashion as well. He quotes Jefferson to the effect that the establishment clause prohibits "intermeddling with religious institutions, their doctrines, discipline, or exercises" and asserts that each of the aspects Jefferson found protected by the Constitution "involved the active practice of a particular faith," which he evidently distinguishes from "merely the acknowledgement of a Deity." From whence he derives this distinction, he does not say. Certainly, religious "doctrines" commonly encompass religious "teachings" and matters presented for acceptance or belief, e.g., the existence of god(s), so there is no reason to suppose Jefferson's words have the limited meaning Denhollander gives them.
http://intensedebate.com/people/AristoAdam AristoAdam

Doug,

1. How is it relevant whether or not Everson provided definitions to those words as if it were writing a dictionary? It's the context in which the words are used which determines meaning. And the meaning Everson ascribed those words were different to what Madison meant them to be. All cases up until Everson reflect this.

2 & 3. The problem with your argument that Madison's definitions extend past his earlier remarks on the precursor to something more consistent with Everson is that you don't support your argument with much meat. When I asked you to provide further evidence of this view, because your initial response was lacking, you reply with "It's in his Detached Memoranda….go look it up" (Paraphrase).

Your initial quote of his Detached Memoranda "strongly guard … the separation of church and state" could quite as easily be interpreted in light of his "precursor" comments and be in support of Rachael's view (she btw). And your second quote "In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion." is exactly the same. If you come to the debate with the baggage of Everson then you will interpret these words (separation and establish) as we see today. But If you come to the debate with Madison's initial "precursor" comments then you can come to the conclusions that Rachael does in her article.
Doug Indeap

1. The fact is that neither Madison nor Everson purported to define these individual terms as Denhollander said. I agree that the "context," i.e., the entirety of the establishment and free exercise clauses, is what matters. That was my point. It may seem but a semantic quibble, but I called it out because Denhollander spoke as if Madison had defined the word "establish" in some standalone sense that could be transferred–regardless of context–from one proposal to the next. As review of his words reveals, he did nothing of the sort.

2 & 3. You are too sharp for me to have to lay this logic out in baby steps, but here goes (all the elements of which, by the way, are presented in my earlier comments): (a) In his Detached Memoranda, Madison asked the question: "Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?" (b) He answered: "In strictness the answer on both points must be in the negative. The Constitution forbids everything like an establishment of a national religion." Madison explained his understanding at some length and noted that the same goes for "Chaplainships for the army and navy" and for "Religious proclamations by the Executive recommending thanksgivings & fasts." (c) You will observe that the appointment of such chaplains and the issuance of such religious proclamations does not charter a church nor does it "enforce the legal observation of [a religion] by law, nor compel men to worship God in any manner contrary to their conscience." (d) Therefore, Madison made plain in his Detached Memoranda that, contrary to Denhollander's assertion, he understood the Constitution to prohibit more than simply chartering a church or enforcing the legal observation of a religion by law or compelling men to worship God in a manner contrary to their conscience.

I have no problem coming to the debate with Madison's comments in the debates leading to development of the First Amendment. My problem is with Denhollander's interpretation of those comments–for the reasons, repetition of which I'll spare you, explained in my earlier comments.