By Dr. G. Homer Durham
President, Arizona State University, Tempe
THE IMPROVEMENT ERA, OCTOBER 1962
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ...” – First Amendment to the Constitution of the United States
ln a statement to the Senate Judiciary Committee, August 2, 1962, Bishop James A. Pike, an attorney qualified to practise before the US Supreme Court, suggested that the words “establishment of religion” in the First Amendment be replaced with “the recognition as an established church of any denomination, sect, or organized religious association.”
The press has reported that Senators Robertson (D. Va.), and Stennis (D. Miss.), thought the suggestion the best yet received since the so-called “prayer decision.”
There can be a great many differences between religious practices and “an establishment of religion.” This much has been clear for many years. By judicial interpretation, the words “establishment of religion” have come to include a variety of religious attitudes and expressions – as well as the concept of organization.
The Oxford Universal Dictionary on Historical Principles (3d ed., revised, 1955) notes the word “establishment” migrating into English about 1481 AD. A 1596 meaning was “the action of establishing.” As usage developed, the word quickly came to mean (“establishmentism”) the principle of a state church.
The words in the First Amendment undoubtedly were meant to signify that Congress shall make no law establishing a state church to administer and prescribe official, legally enforceable religious practices. On the other hand, the remainder clause clearly indicated that neither was Congress to pass any law prohibiting the free development of churches, religious bodies, and religious practices. Lawyer-Bishop Pike’s suggestion would produce the following result:
“Congress shall make no law respecting the recognition as an established church of any denomination, sect, or organized religious association, or prohibiting the free exercise thereof.”
The Virginia Statute of Religious Liberty, June 16, 1786, disestablished the Episcopal Church in Virginia. The bill was introduced in June 1779. It was strenuously opposed but passed after seven years of battle. James Madison, George Mason, and Thomas Jefferson secured its passage. Jefferson was author of the bill. Some language from the Virginia statute suggests that interest may have run towards modern problems, as well as those of eliminating the state church.
The eighteenth century phrase, “an establishment of religion,” implies an organized, duly established, religious body. If the First Amendment is amended to attempt restoration of earlier intent, some problems will remain.
The Virginia Statute of Religious Liberty, June 16, 1786, disestablished the Episcopal Church in Virginia. The bill was introduced in June 1779. It was strenuously opposed but passed after seven years of battle. James Madison, George Mason, and Thomas Jefferson secured its passage. Jefferson was author of the bill. Some language from the Virginia statute suggests that interest may have run towards modern problems, as well as those of eliminating the state church.
Here are some phrases from the bill (which Jefferson believed to rank in importance with his authorship of the Declaration of Independence):
“ ... Almighty God hath created the mind free, and manifested his supreme will that free it shall remain by making it altogether insusceptible of restraint; that all attempts to influence it by temporal punishments, or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the holy author of our religion, ...
“ ... the impious presumption of legislators and ruler, 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 endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time ...
“ ... to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical ...
“ ... forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness ...
“ ... our civil rights have no dependence on our religious opinions, any more than our opinions in physics or geometry; that therefore the prescribing any citizens as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion, is depriving him injuriously of those privileges and advantages to which, in common with his fellow citizens, he has a natural right ...
“ ... to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own ...
“ ... it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order ...
“ ... finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict unless by human interposition disarmed of her natural weapons, free argument and debate; errors ceasing to be dangerous when it is permitted freely to contradict them.
Most thoughtful men and women today will agree with the Jeffersonian views which underlay disestablishment in Virginia, and, the First Amendment.
However, many today will seriously question the practicality of the idealistic notion of civil rights being able to stand alone, rationally maintained and supported. Have “civil rights ... no dependence on our religious opinions, any more than our opinions in physics and geometry”? Perhaps this could be true in the eighteenth century Virginia wilderness. But today it has been demonstrated in world wars and more local circumstances that the better doctrine was expressed by another Virginian, George Washington. In the Farewell Address, September 17, 1796, fortified, not doubt, by the excesses of the French Revolution (which occurred after the Virginia Statute’s passage) (when the “Goddess of Reason” failed to stop emotional, irrational forces – read Carlyle’s History on Dickens’ Tale of Two Cities), Washington said:
“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain will that man claim the tribute of patriotism who should labor to subvert these great pillars of human happiness – these firmest props of the duties of men and citizens.”
The free establishment of religion is, therefore, seen as an important object of the First Amendment, without establishing state churches in these times. If any further sober recollection is needed, merely consider the established state “religions” of the communist nations – and the prohibition of free religious bodies, attitudes, practices, and worship in these times.