Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Before America’s religious divide grows any wider, let’s recognize and return to the Constitution our Founding Fathers intended: The government should be free to acknowledge God and support religious belief generally, but must always respect the private right of conscience of individual Americans. The U.S. Supreme Court can begin by correcting the egregious error it made in holding that the First Amendment’s establishment clause bars direct governmental support of religion. As a result, voluntary nondenominational public school prayer has been forbidden, the words “under God” in the Pledge of Allegiance have been declared unconstitutional, and a host of other interactions between church and state have been barred based on the sensibilities of a tiny minority not content to abstain. In fact, as American history makes clear, acknowledgement of God and general support of religion by the government is fully consistent with the Constitution. ‘ESTABLISHMENT OF RELIGION’ The First Amendment forbids Congress from making a law “respecting an establishment of religion, or prohibiting the free exercise thereof.” The Supreme Court in Everson v. Board of Education (1947) interpreted that to mean that neither federal nor state governments “can pass laws which aid one religion, aid all religions, or prefer one religion over another.” In so ruling, the Court substituted its view for the views of those who founded the United States, wrote and ratified the Articles of Confederation and the Constitution, and adopted the First Amendment. In so ruling, the Court also misunderstood a much-quoted letter in which Thomas Jefferson described the First Amendment as “building a wall of separation between church and state.” The Declaration of Independence, the Articles of Confederation, and the Constitution all recognize God. The latter two are dated “in the year of our Lord.” The First Amendment cannot therefore be interpreted to prohibit government from acknowledging God or supporting religion generally. Only coercive or sectarian governmental acts that establish a particular faith or prohibit the free exercise of any faith are unconstitutional. And Jefferson was not contemplating a wall that bars religious expression from public places; his wall simply keeps government from interfering with that religious expression. As Justice William Douglas explained in Zorach v. Clauson (1952), upholding a public school “released time” program: “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. That would be preferring those who believe in no religion over those who do believe. . . . [W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” More recently, Chief Justice William Rehnquist rightly asserted in dissent in Wallace v. Jaffree (1985) that the establishment clause was intended only to stop the federal government from establishing a national church or preferring one sect over another, and certainly not to require governmental neutrality between religion and “irreligion.” A leading 19th century commentator, Thomas Cooley, contended in his treatise, Constitutional Limitations, that recognition of God and general support for religion were, indeed, governmental prerogatives: “[T]he American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires. . . . Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws.” Most specifically, wrote Cooley, “No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures; or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation.” Cooley emphasized that government needs to “foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order.” “Public recognition of religious worship,” he wrote, is based on “the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction.” ‘DIVINE PROVIDENCE’ This was the prevailing attitude when the first Congress passed the First Amendment and also the Northwest Ordinance of 1787, which explicitly integrated religion and public education. Article III of the ordinance states: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Two years later, George Washington warned, “Let us with caution indulge the supposition, that morality can be maintained without religion.” The Founding Fathers were Christians, not secular humanists. John Adams wrote in 1813 that “[t]he general principles, on which the Fathers achieved independence, were . . . the general principles of Christianity.” America’s greatest chief justice, John Marshall, proclaimed in 1833: “The American population is entirely Christian, and with us Christianity and Religion are identified. It would be strange indeed, if with such a people, our institutions did not presuppose Christianity, and did not often refer to it, and exhibit relations to it.” Marshall’s statement was not literally true, of course; Americans were not even then entirely Christian. But the larger point is clear: Men such as Adams and Marshall recognized that Americans were a people of faith and that their government should not fear to recognize that. The signers of the Declaration of Independence, the Framers of the Constitution, and the members of the first Congress and the state legislatures that enacted and ratified the First Amendment humbly recognized their dependence upon God. In lamenting the absence of daily prayers during the Constitutional Convention, Benjamin Franklin asked: “[H]ow has it happened . . . that we have not hitherto once thought of humbly applying to the Father of lights to illuminate our understandings? . . . [H]ave we now forgotten that powerful friend? or do we imagine that we no longer need his assistance? I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth — that God governs in the affairs of men. . . . We have been assured . . . in the sacred writings, that ‘except the Lord build the House they labour in vain that build it.’ “ The Declaration explicitly appeals to “the Supreme Judge of the world” and proclaims “a firm reliance on the Protection of Divine Providence,” as well as referring to “the Laws of Nature and of Nature’s God” and a “Creator” who endowed “all men . . . with certain inalienable Rights.” The Constitution not only refers to “the Blessings of Liberty” in its preamble, but excludes Sundays in calculating the time in which a presidential veto must be issued. Further, it deliberately integrates religion into public affairs, while not compelling the unreligious to practice faith, by providing for oaths or affirmations. If the Framers had intended to separate church and state completely and embrace secularism, then they would have provided only for affirmations. And the First Amendment was adopted to afford atheists a right to not recognize God, but not to give them a right to preclude government from doing so or from supporting religion generally — as the seminal Commentaries on the Constitution (1833) by Justice Joseph Story show. ‘ESPECIAL DUTY OF GOVERNMENT’ Justice Story wrote authoritatively and extensively about the First Amendment. He explained that its real object was “to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” He also stressed that “the duty of supporting religion” was “very different from the right to force the consciences of other men, or to punish them for worshipping God in the manner which, they believe, their accountability to him requires.” Story conceived of governmental support for religion as a responsibility, rather than a prerogative, and not less important than respect for private religious beliefs. In his words, “it is the especial duty of government to foster” religion, and this duty is “wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship according to the dictates of one’s conscience.” Plainly, the current notion that public recognition of God and support for religion generally must yield to “the right of private judgment” would have been almost incomprehensible to Justice Story. He wrote that “the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice.” According to Justice Story, “Probably at the time of the adoption of the Constitution, and of the amendment to it . . . , the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship,” and that “an attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.” This unappreciated historical record reveals the error of the Supreme Court’s ways. In its zeal to purge the public square of endorsements and even accommodations of religion, the Court has construed the Constitution’s ban on “an establishment of religion” much too broadly and thereby paved the way for lower courts to strike down the Pledge of Allegiance and to order the removal of a Ten Commandments monument from the lobby of an Alabama courthouse (while leaving undisturbed the Supreme Court’s own Ten Commandments display). Our Founding Fathers envisioned a government that looked favorably on religious belief, that viewed it as a force for good, and that not merely accommodated faith but encouraged it. Those whose consciences dictate otherwise should never be forced to personally engage in religious expression. But neither should fear of offending their sensibilities prevent others from publicly expressing their faith. The nonreligious minority should not be persecuted, but neither may they impose their nonreligion on the religious majority. Michael Gaynor is an attorney in private practice in Greenlawn, N.Y. He can be reached at [email protected].

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.