by Ken Burrows

The May 5^th Supreme Court decision in Town of Greece v. Galloway concluded that the practice by the Greece, NY, town board of opening its meetings with predominantly Christian prayer does not violate the Establishment Clause of the Constitution. This despite the fact the practice causes a certain religious imposition on those citizens attending the town board meetings who see themselves as excluded or at least marginalized by being subjected to official governmental prayer, sectarian in nature, that effectively endorses a faith they do not themselves subscribe to.

Justice Anthony Kennedy in writing the Greece opinion insisted it “faithfully reflects the understanding of the Founding Fathers,” which one would assume refers to the Founders’ views on the role of religion vis-à-vis government—the key issue at stake in Greece. But is that claim of fidelity to the Founders as patently true as Kennedy would have us believe?

Today’s two Supreme Court justices most willing to accept church-state entanglement are Antonin Scalia and Clarence Thomas, both of whom concurred in the Greece opinion. They can consistently be found to have virtually no problem with church-state entanglements that tilt in favor of religion. The two Founders most opposed to such entanglements were James Madison and Thomas Jefferson, who incidentally were also the two chief drafters of the Constitution; the former is in fact often referred to as the Father of the Constitution.

If we compare the writings of Madison and Jefferson against the writings and statements of Scalia and Thomas, we find, at a minimum, that today’s justices fall short of the clarity Madison and Jefferson brought to their advocacy for church-state separation and indeed show a willingness to compromise on the very principles these Founders advocated.

It’s ironic because Scalia and Thomas lay claim to also being the two strongest “originalists” on today’s Supreme Court, with Scalia insisting historical inquiry is mandatory to understand the original meaning of the Constitution and what its drafters intended. It’s a reasonable enough position to hold. After all, given the roles Madison and Jefferson played in framing the Constitution, these Founders’ church-state views are, dare we say it, supremely relevant. Whether Scalia and Thomas are faithful to those views will be the subject of this writing

Madison

Madison’s views on the proper relationship between government and religion were most enduringly spelled out in his 1785 Memorial and Remonstrance Against Religious Assessments, a 15-point opposition to Patrick Henry’s proposal to use state funds in Virginia to pay teachers of the Christian religion. Here we find Madison making a number of statements of resounding clarity. For example:

“The religion then of every man must be left to the conviction and conscience of every man.”

“In matters of religion, no man’s right is abridged by the institution of Civil Society and Religion is wholly exempt from its cognizance.”

“Instead of holding forth an Asylum to the persecuted, it [Patrick Henry’s bill] is itself a signal of persecution. It degrades from the equal ranks of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority… the bill implies either that the civil magistrate is a competent judge of religious truths, 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 of all ages and throughout the world; the second an unhallowed perversion of the means of salvation.”

But his Remonstrance was by no means Madison’s only commentary on the subject. In a letter to Edward Livingston in 1822 he opened by saying, “I observe with particular pleasure the view you have taken of the immunity of Religion from civil jurisdiction… This has always been a favorite principle with me.  … in some parts of our Country there remains a strong bias towards the old error, that without some sort of alliance or coalition between Govt and Religion neither can be duly supported. Such indeed is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded against. … 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 and Govt will both exist in greater purity, the less they are mixed together.”

In a post-presidency Detached Memorandum Madison pointed out inconsistencies he saw between government practice and the spirit of church-state separation embodied in the First Amendment. (For one thing, Madison opposed having government monies pay for military or congressional chaplains, calling it unconstitutional.) He refers to attempts that were made by some delegates in Virginia to insert the words “Jesus Christ” after “our Lord” in the preamble to Jefferson’s Statute for Religious Freedom. [Note: In these 18^th and 19^th century times, terms such as “Lord” referred primarily to God in a generic sense and not to any individual such as Christ.] Madison said such an insertion would have implied “a restriction of the liberty defined in the Bill to those professing his religion only,” and applying the name Jesus in such a context would profane it “by making it a topic of legal discussion, & particularly by making his religion the means of abridging the natural and equal rights of all men.”

Madison’s Memorandum went on to criticize the issuance of religious proclamations by government, saying that although they might be recommendations only, “they imply a religious agency… [and] seem to imply and certainly nourish the erroneous idea of a national religion.” A related problem he saw was that the practice tends to narrow the recommendation to the standard of the predominant sect “and naturally terminates in a conformity to the creed of the majority.” He concluded forcefully that “members of a Govt can in no sense be regarded as possessing an advisory trust from their Constituents in their religious capacities. They cannot…issue decrees or injunctions addressed to the faith or the Consciences of the people.”

Around 1832, Madison penned another Memorandum in which he called upon states that still had formal ties with religious bodies to emulate Virginia’s example of religious freedom through church-state separation. “Make the example of your Country as pure & compleat,” he wrote, “in what relates to the freedom of the mind and its allegiances to its maker, as in what belongs to the legitimate objects of political and civil institutions.” In other words, a pure and complete separation of religion from government.

Jefferson

For his part, Jefferson most famously expressed his church-state views in his Virginia Statute for Religious Freedom, first drafted in 1777 and passed by the General Assembly in 1786. The statute opens with the statement that “Almighty God hath created the mind free.” Only a few lines later Jefferson notes that even the “Holy author” of religion chose not to propagate faith by coercing the mind, and he goes on to castigate “the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions.”

His statute goes on to say “our civil rights have no dependence on our religious opinions” and for a civil magistrate to “intrude his powers into the field of opinion…is a dangerous fallacy, which at once destroys all religious liberty.”

In writing to Dr. Benjamin Rush, a co-signer of the Declaration of Independence, Jefferson said, “Religion is a subject on which I have been most scrupulously reserved. I have considered it a matter between every man and his Maker, in which no other, and far less the public, had a right to intermeddle.”

And, of course, there is the well known response Jefferson sent to the Danbury Baptists in 1802 after they’d expressed concern about the security of their own religious freedom. In this period Baptists were a minority faith and were frequently discriminated against and excluded as a result of collusions between government and majority religions. They wrote to Jefferson to ask that he do what he can as president to ensure their religion would be given fair and equal treatment. In his response Jefferson wrote: “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 solemn 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.”

Scalia and Thomas

Scalia’s insistence on “historical inquiry”—and his and Clarence Thomas’ corollary commitment to honoring the Founders’ original intents—have apparently missed much of what Madison and Jefferson had to say.

Compare the church-state positions of Madison and Jefferson against the Court’s Greece opinion, which tells citizens who see offense in being subjected to governmental prayer that they are free to leave the room, arrive late, or lodge a protest afterward. In short, the majority justices said if government wants to pray and even promote a specific faith, it can.

It’s worth noting as well that the plaintiffs in Greece were not asking the Court to ban town board prayers, but merely to ensure that such prayers are ecumenical and inclusive. This was actually a lesser standard of church-state separation than even Madison and Jefferson would be likely to have accepted, but still the Court said, in effect, sectarian governmental prayer is no problem. Live with it. This hardly qualifies as reflecting the Founders’ intent.

On the contrary, this is the kind of mindset Madison and Jefferson consistently opposed. Indeed, in many ways, it’s a mindset that Founders of many stripes fomented a revolution against. Delegates to the Constitutional Convention underscored this desire to separate church and state by going so far as to reject suggestions to bring prayer into their deliberations. The Greece town board’s public prayer habit thus turns history on its head, no matter Kennedy’s protestation to the contrary. It contradicts Madison’s and Jefferson’s positions, no matter that Scalia and Thomas agree with Kennedy that it is faithful to them.

In their separate concurring opinions in the Greece ruling, Scalia and Thomas move even further away from the clear separation of religion and government Madison and Jefferson called for by saying the Constitution is not violated by “subtle pressures” Greece citizens claimed to have felt with town board praying. The justices insisted it was only the imposing of religion “by force of law and threat of penalty” that the Founders objected to. A more careful read of what the Founders actually said finds their opposition to mingling government and religion to be far more encompassing and far less nuanced than that.

What else can it mean to assert there is no public right to intermeddle with an individual’s religion? What else does “a perfect separation between ecclesiastical and civil matters” mean?

The Founders’ Faith

It’s no secret that Madison and Jefferson in their personal lives practiced the independent thinking about religion that they brought to their public advocacy. While they were scrupulous in not attempting to foist their private faith convictions onto others by law or policy, understanding their personal religion aids understanding what they sought to achieve in something like the Constitution.

They were certainly not in the mold of today’s “religious right” with its constricted faith tenets and maneuverings for political influence, frequently on nonreligious issues. But they were just as certainly not atheists. They cherished their faith. They regularly made references to God, the Creator, the Holy Author, the Supreme Lawgiver. Both men were Deists, believers in a God who set things in motion and then did not intervene in the activities of humankind.

Jefferson believed Jesus to be a model teacher with wisdom worth sharing but did not believe in his divinity. He saw the Bible as holding some sound moral advice but also errors and superstitions, and he thought Christians as a group had by and large actually corrupted Jesus’ teachings. He dismissed the entire Old Testament and made his own “bible” by stripping out New Testament accounts of miracles and supernatural happenings. He was confident a society could be moral without being Christian and that human conscience and reason, rather than divine revelation, was the path to what he termed “true religion.” No wonder he once wrote: “Difference of opinion is advantageous in religion. … What has been the effect of coercion? To make one half the world fools and the other half hypocrites.” And “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.”

Madison was fairly reticent about his religious views. He grew up Episcopalian but never formally joined a church. He is thought to have been greatly affected, and offended, in watching his father enforce laws against dissenting preachers, especially the Baptists. He is known to have opposed anti-Catholic prejudices, which were extensive in his time; Catholics in fact, also referred to as papists, were often the only religious group formally prohibited from holding public office. Madison was seen as someone open-minded and sympathetic on religious questions. In his famed Remonstrance he spoke of “the duty which we owe to our Creator” but immediately said the manner of discharging it “can be directed only by reason and conviction.” He included the statement: “Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man.”

Though they advocated tirelessly for keeping government and religion apart, it is obvious neither Madison nor Jefferson was anti-religion. On the contrary, they viewed church-state separation as indispensable to protecting religious liberty, and especially protecting religious minorities, accommodating even nonbelievers. They were suspicious of any attempts to compromise on separation because doing so imperiled the religious freedom of anyone not in the faith or sect predominantly favored by government.

Scalia and Thomas vs. Madison and Jefferson

Compare these views and advocacies of Madison and Jefferson to Clarence Thomas’ astonishing contention, stated in past cases and stated again in his joint Greece concurrence with Scalia, that the Constitution restricts only Congress from establishing religion, but the individual states should be free to do so. Wrote the two justices: “The First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States.”

Whatever linguistic parsing they have managed to twist out of the Constitution to draw this conclusion, there is no rational basis to see it as being consistent with what the Founders’ intent was.

Madison and Jefferson were also defenders of religious pluralism. In his autobiography, Jefferson looked back on the vote by Virginia delegates to not include specifying “Jesus Christ” as “the Holy Author” referred to in his Statute for Religious Freedom, and said this was “proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, The Christian and the Mahometan, the Hindoo, and Infidel of every denomination.”

And now once more compare this to a Scalia dissent in the 2005 McCreary County v. ACLU case dealing with Ten Commandments displays on government property. In his dissent, he said the Establishment Clause does not protect religious minorities or nonbelievers from majoritarian sentiment and said it is a “demonstrably false principle that the government cannot favor religion over irreligion.” In addressing the conflict between adherents of minority religions and nonbelievers, and the majority believing in the religious precepts in the Ten Commandments, Scalia said, “Our national tradition has resolved that conflict in favor of the majority,” and the Establishment Clause “permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” (By contrast, Justice Sandra Day O’Connor, concurring with the majority, said, “We do not count heads before enforcing the First Amendment.”)

So according to Scalia, the Constitution gives a green light to “disregard” citizens who embrace faiths that majorities disapprove of. It must be asked: Not only does Scalia have a truncated, if not warped, grasp of the Founders’ history, but does he even understand the most basic meaning of religious freedom as the Founders envisioned it? Does it cross his mind that it was the genius of people like Madison and Jefferson that salvaged his own Catholicism from the “disregard” heap, thanks to their demand that government have no preferences or influence in matters of religion?

Consider one more case. In the 1992 Lee v. Weisman case, Daniel and Vivian Weisman protested prayers being said at their daughter’s graduation from Nathan Bishop Middle School in Providence, RI. They sued Principal Robert E. Lee and the school board. Justice Anthony Kennedy, writing for the majority in plaintiffs’ favor, applied the “coercion” test he had proposed in a previous case on a different church-state issue. He said students face subtle, coercive pressures to join in prayer and thus such prayers in context of a public school are not constitutional. Scalia dissented. Noting that President Bush had asked people attending his inauguration to bow their heads in prayer, he said the Weisman daughter and her family should be willing to do the same and “thank God for the blessings He has generously bestowed on them.”

In other words, Scalia’s view was that this family should abandon their own freely and conscientiously held faith and accept the majoritarian religion in its place. Exactly the kind of suppression of religious freedom that Madison and Jefferson fought fiercely against, and warned against it arising in the future whenever government and religion intermingle.

History matters

Constitutional originalists like Scalia and Thomas deride the concept of a Constitution whose meaning must evolve with the changing circumstances of history. Because, they say, this opens the door to finding rights and guarantees in the document that are not there, leading to judicial activism. They say this strays from the Founders’ original intents. (They are evidently untroubled by the practice of appending “so help me God” to the presidential oath even though the phrase is not prescribed in the Constitution, a document that was made 100% secular by the original intent they say they hold sacred.)

Yet court rulings through the decades, many with the backing of such originalists, have arguably already strayed from the Founders’ intents on church-state matters—at least Madison’s and Jefferson’s intents—as more and more accommodations are made for allowing a level of religious imposition to occur under the guise of “religious freedom.” This is particularly so when religion and government intermingle instead of them being kept separate as Madison and Jefferson intended.

The Greece decision rested largely on the precedent case of Marsh v. Chambers, a 1983 decision that upheld the constitutionality of prayer led by chaplains in a state legislature. (But note that some legal analysts interpret Marsh to have okayed only nonsectarian prayer, whereas the majority in Greece specifically eschewed such a limitation.) One can plausibly maintain that the Greece ruling is in keeping with its precedent court opinions. What is far less tenable is to maintain that the reasoning in Greece is faithful to what Madison and Jefferson espoused.

In fact, when Greece is viewed in the context of its cited precedents, the question to be asked is whether the evolving law on church-state separation is on a wayward track, gradually straying from the principles the Founders handed down. Are we judicially “unlearning” our history, and could we risk repeating the history of religious favoritism, imposition, and strife the Founders labored so long and hard to do away with?

Scalia and Thomas aren’t helping us avoid that. It appears that for these self-described originalists, the revolutionary convictions of our Founders on separating religion and government were, well, just too revolutionary. It’s safe to say that if Madison and Jefferson were writing a majority Court opinion today on a church-state issue, Scalia and Thomas would be the ones filing dissents, with opinions that range from odd to contorted to chilling. Their views weaken Jefferson’s wall of separation and bring to mind Madison’s Remonstrance caution: It is proper to take alarm at these experiments on our liberties.

In recalling Justice William Brennan’s dissent in Marsh, one can all but hear echoes of Madison and Jefferson. He wrote: “Legislative prayer clearly violates the principles of neutrality and separation that are embedded within the Establishment Clause…. It intrudes on the right to conscience by forcing some legislators either to participate in a ‘prayer opportunity’ with which they are in basic disagreement, or to make their disagreement a matter of public comment by declining to participate. It forces all residents of the State to support a religious exercise that may be contrary to their own beliefs. It requires the State to commit itself on fundamental theological issues.”

That’s a perspective well in line with the views of Madison and Jefferson. Too bad Brennan isn’t still around to remind Scalia and Thomas what the true original intents of the Founders were.