Father John A. Hardon, S.J. Archives

Church and Dogma

Christ to Catholicism

PART TWO: DOGMATIC ECCLESIOLOGY

XIII. Cooperation of Church and State in the United States

by Fr. John A. Hardon, S.J.

The end-point of our study of the Church is her relation to the State in our own country, viewed in the light of the principles already seen and now examined in reference to the United States. There is more than speculative value in this closing analysis. As must be clear to anyone who recognizes the Church's divine authorization, the rights she has received from her Founder need to have external, juridical freedom for their salutary exercise. What precisely is her freedom in America, what is the legal status of organized religion, including the Catholic? Not to understand his position before the government will inhibit a Catholic in a dozen ways, where familiarity with the law and its interpretation can help him to profit maximally from the liberty he enjoys under the American Constitution.

Authentic Meaning of the First Amendment

There are three passages in the American Constitution, as now formulated, which directly or implicitly deal with the subject of religion. In the body of the Constitution, as effective on March 4, 1789, only Article VI, Section 3, touches on the issue by declaring that "No religious test shall ever be required as a qualification to any office or public trust under the United States." The explicit provision against religious tests was passed by the Constitutional Convention almost without debate. Its intent was not to prevent the separate states from demanding religious qualification but to forbid such tests to the federal government in view of the rivalry between the various denominations.

Even before the original Constitution had been ratified, a series of ten amendments was proposed for adoption by the States and on September 15, 1791, became an integral part of the constitutional law under the more familiar name of the Bill of Rights. First among these ten amendments dealing specifically with the government's attitude toward religion, stating, under the title Freedom of Religion, of Speech, and of the Press, that "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or of abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

Seventy-five years after the adoption of the Bill of Rights, a Fourteenth Amendment was added to the Constitution, dealing immediately with the delicate question of state abridgement of citizenship rights but later used by the Supreme Court as an instrument for the protection of religious liberty. "No State," the amendment reads, "shall make or enforce any law which shall abridge the privileges or immunity of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the law." The Fourteenth Amendment was proposed by Congress in 1866 and declared ratified by the States on July 28, 1868.

While all three elements in the Constitution have variously figured in developing the religious tradition of our country, the most important is the First Amendment, on whose correct interpretation depends a proper understanding of the Catholic Church's position in the United States.

Historical Background. Before the American Revolution, ten of the original thirteen colonies had established churches, i.e., religious bodies that were legally supported and promoted by the civil authorities, by way of monopoly and to the exclusion or at least non-recognition of rival churches. Thus the Church of England was established in New York, New Jersey, Maryland, Virginia, North and South Carolina, and Georgia; the Congregationalist Church in Massachusetts (including Maine), New Hampshire (including Vermont), and Connecticut. While there was no established church in Rhode Island, Pennsylvania or Delaware, some churches had special privileges even in these territories.

As a result of the Revolution, five of the States that had an established Anglican Church disestablished it; which left five States with and eight without a legally established church at the time of the Constitutional Convention in 1787. However all the States had religious tests and, in varying degrees, excluded from office Jews, Catholics, Quakers, Unitarians and Atheists. Protestantism in one form or another had privileged status in the first American colonies, and consequently there was no American tradition or principle of "separation" of Church and State among the Founding Fathers.

Purpose and Scope of the First Amendment. All the historical records available go to show that the First Amendment was adopted as a guarantee of religious liberty. Where the "no religious test" clause precluded discrimination towards prospective holders of federal office, the amendment amplified this freedom to cover any discriminatory practice by the federal authority. In effect, the First Amendment forbade the national government to establish, in the sense of legally set-up, any one church in preference to others; and it also forbade it to place any disabilities on any person by reason of his religious convictions or practice. It was, in other words, a charter of religious liberty as regards the federal government; but it did not lay the same restriction on the individual States. In the words of recognized authority on constitutional law, "The First Amendment is a restraint on the action of Congress, and is not a restriction of the State Legislatures.’The Constitution makes no provision for protecting the citizens of the respective States in their religious liberties; this is left to the State constitutions and laws; nor is there any inhibition imposed by the Constitution of the United States in this respect on the States.’ [1] Any action by a State establishing some religion and prohibiting the free exercise of all other religions would therefore not be in contravention of it." [2]

This is confirmed by the conduct of the States, since Connecticut did not disestablish its church until 1808, Massachusetts not until 1833, and New Hampshire by its Constitution to this day may legislate against any religious body not traceable to the Reformation. Adopted in 1912, the law authorizes municipalities "to make adequate provision at their own expense for the support and maintenance of public Protestant teachers of piety, religion, and morality." [3]

Disestablishment not Separation. If we would know the full intent of the First Amendment we should inquire of its author, James Madison, who proposed no less than five versions to Congress before the sixth and present draft was adopted. In his own words, as reported in the third person by an official scribe, the amendment "had been required by some of the State Conventions, who seemed to entertain an opinion that the claims of the Constitution, and the laws made under it, which gave Congress power to make all laws necessary and proper to carry into execution the Constitution, 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 language would admit." [4] During the ensuing debate, Madison made his mind still clearer. In reply to one congressman who feared that the proposed amendment, at least in its present form, might favor those who had no religion, he said that, "If the word 'national' was inserted before 'religion' it would satisfy the minds of honorable gentlemen. He believed that the people feared that one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word 'national' were introduced it would point the amendment directly to the object it was intended to prevent." [5] In that event the term "national" was not added to the First Amendment because, after Madison's explanation, the delegates considered the adjective unnecessary.

At no time in the proceedings of Congress which drafted the Bill of Rights was there even a rumor that the First Amendment legislated a separation of Church and State, wherein the latter would divorce itself from religious principles or, by implication, favor a non-theistic set of values for the federal government. It is enough to recall that whatever his aberrations, Madison (in common with all the members of the first Congress) firmly believed in God; that he defined "religion (as) the duty we owe the Creator," and, in the most solemn document of his life publicly prayed for his fellow-legislators "that the Supreme Lawgiver of the Universe would turn their councils from every act which would affront His holy prerogative or violate the trust committed to them." [6]

The whole subsequent legal and judicial history of America bears out the principles of those who framed the Constitution and its first amendments, that in the words of a recent decision of the Supreme Court, "We are a religious people whose institutions presuppose a Supreme Being." [7] It is imperative for Catholics to have clear and deep-seated convictions on this fact, which is closely tied in with the Church's juridical status and which a growing secularist minority wishes to neutralize to the detriment of Catholic interests.

In the analysis which follows, we shall examine the outstanding evidences of Church and State cooperation in the United States, covering the two major areas of decisions of the Supreme Court and national legislation. Church and State alliance in both fields has taken on a variety of forms. It may have begun with some action by a minority body successfully bringing pressure on the government to enact laws that catered to its own sectarian prejudices and needs; or the initiative was taken by individuals (or groups) seeking to protect their constitutional rights to freedom of religion; or, finally, religious-minded men in the government effectively influenced national legislation and judiciary for the spiritual welfare of the country, without looking to the particular benefit of any of the churches.

Leading Decisions of the Supreme Court

While the total number of Supreme Court decisions dealing more or less directly with religion is not large, their impact was the basic factor in determining the constitutional status of religious freedom. With rare exceptions, the court has consistently upheld the principle that most Americans are citizens of the two societies, Church and State, and that consequently they have rights and privileges which no political power may take from them.

Inviolability of Church-Affiliated Institutions. One of the earliest decisions of the Supreme Court on the relation of Church and State involved the juridical status of Dartmouth College in New Hampshire. In 1769 Dartmouth was chartered by the English Crown as a Congregational institution of higher learning. Ten years later a change in the board of trustees created a rift between the first founder and the new incumbents who changed the name to Dartmouth University and framed another constitution. This provided for a council of overseers appointed by the governor of the state, an annual inspection under state supervision and, in general, a reorganization of the school from a private church-affiliated college to a state university.

Action was brought against the innovators on the grounds that they had violated the charter by which the school was founded. In 1817 the Supreme Court of New Hampshire declared against the objectors that since the institution had become public in character it was subject to state control. A year later the case was brought to the U. S. Supreme Court where Daniel Webster pleaded in favor of Dartmouth College and won a decision which restored its original status.

In delivering the majority opinion, Chief Justice Marshall stated that, Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors to the specified objects of that bounty." It is "not a civil institution, participating in the administration of government, but a charity school, or a seminary of education." Moreover, "almost all eleemosynary corporations, those which are created for the promotion of religion, of charity, or of education, are of the same character. The law of this case is the law of all." Consequently, "this is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States." [8] Historians of constitutional law believe that this decision stands out as one of the great contributions made by government in this country to the Churches, for it protects their property from spoliation by the State.

Restriction of Religious Liberty for the Common Good. The historic instance where religious liberty had to be curtailed for the national welfare concerned the Mormon practice of polygamy. Joseph Smith, who founded the Mormons in 1830, claimed he had learned by divine revelation that plural marriage was permissible. Accepted as an article of faith by his followers, polygamy became the main source of trouble for "The Latter-Day Saints" during the first sixty years of their existence. As early as 1860 a bill was introduced in the House of Representatives, "to punish and prevent the practice of polygamy in the Territories of the United States." Passed by the Senate and House, the legislation remained inoperative because Mormon jurors would not convict their co-religionists. Moreover the law was attacked as an unwarranted interference with religious freedom. Contested in the lower courts, it finally reached the Supreme Court of the United States which upheld (1878) the constitutionality of anti-polygamy legislation.

The basis of the Court's decision was a concept of religious liberty which forbids the practice of such acts as are commonly regarded as criminal or immoral. "There has never been a time," the Court declared, "in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guarantee of religious freedom was intended to prohibit legislation in respect to this most important feature of social life." [9]

The Court then distinguished between internal convictions and external practices. Civil laws, it said, "are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices." Suppose, for example, "one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pyre of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?" [10] The same is true in this case. "As a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” [11]

Yielding to circumstances, the Mormons amended their church doctrine by substituting "spiritual" polygamy for physical plural marriages.

Freedom to Propagate the Christian Religion. The Christian character of the American people was openly professed in a decision of the Supreme Court (1892) interpreting the federal law which prohibited "the importation and migration of foreigners and aliens under contract to perform labor in the United States." It was decided that the law did not apply to a contract whereby an Episcopalian minister residing outside the United States agreed to become pastor of a church in this country.

In giving its unanimous judgment, the Court proclaimed that, "the people of this country profess the general doctrines of Christianity as the rule of their faith and practice." One evidence for this is the fact that the law punishes those who "revile, with malicious and blasphemous contempt, the religion professed by almost the whole community." and does not take the same critical attitude towards "like attacks upon the religion of Mohamet or of the Grand Lama." Behind the discrimination is "this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those impostors." If we further examine the whole of American life, "as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: the form of oath universally prevailing…the laws respecting the observance of the Sabbath… the churches and church organizations which abound in every city, town and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation." Confronted with such evidence, "shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation." [12]

This national profession of faith was repeated with approval by the Supreme Court in 1930, when it stated, "We are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God." [13]

Fourteenth Amendment Applied to Religious Freedom. An epoch-making decision of the Supreme Court in 1923 for the first time in constitutional history guaranteed the rights of religious freedom on the basis of the Fourteenth Amendment. Known as the Meyer v. Nebraska case, the court decided by a seven to two ratio that a parent had the right to educate his children in a parochial school. As presented to the Supreme Court, there was under consideration an act of the legislature of Nebraska entitled "An Act Relating to the Teaching of Foreign Languages," which in 1919 decreed that:

No person, individually or as a teacher, shall, in any private, denominational, parochial or public school, teach any subject to any person in any language other than the English language.

Languages, other than the English language, may be taught as languages only after a pupil shall have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued by the county superintendent of the county in which the child resides. [14]

In pursuance of this law, the Nebraska Supreme Court decided that Robert T. Mayer, teacher in a school maintained by the Zion Evangelical Lutheran Congregation, had illegally taught the subject of reading in the German language from a collection of Bible stories, to a child of ten who had not passed the eighth grade. The decision was reversed by the United States Supreme Court by an appeal to the Fourteenth Amendment which forbids any state to deprive any person "of life, liberty, or property without due process of law." In the opinion of the judges, this denotes among other thing the right of the individual "to worship God according to the dictates of his conscience."

Since the principle involved affected Catholic schools more than Protestant institutions, it is not surprising that the counsel (Arthur F. Mullen), a Roman Catholic, made his defense on the broad lines of limitation of state authority. "It is now seriously argued," he told the court, "that a legislative majority can, by its mere fiat, take my children and require me to send them to a public school, and have the course of study absolutely controlled by the State. I deny that any such power exists in a constitutional government." [15]

The cogency of this argument impressed the judges, whose decision laid the groundwork for subsequent trials in which inalienable religious rights were at stake. Using the Fourteenth Amendment as its premise, the court did not attempt to "define with exactness the liberty thus guaranteed." However, "without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men…. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect….That the state may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected." [16]

Commentators regard the Meyer v. Nebraska case as a milestone in the protection of religious liberties guaranteed by the national judiciary. From the Catholic viewpoint it became the link which bound the legal status of the parochial school system to the Fourteenth Amendment of the Constitution.

Freedom of Education Under Religious Auspices. One decision of the Supreme Court which Pope Pius XI used in his Encyclical on Christian Education involved the Oregon education law, adopted in 1922 and scheduled to take effect in the fall of 1926. By a popular vote that carried with the slightest margin, Oregon passed a law requiring parents and guardians to send all children between the ages of 8 and 16 "to a public school." Failure to comply was to be punished as a misdemeanor. The constitutionality of the measure was contested in the Supreme Court by the Society of the Sisters of the Holy Names of Jesus and Mary, conducting orphanages, parochial schools and junior colleges. Governor of Oregon at the time was Walter Pierce, hence the case is known in legal history as Pierce v. Society of Sisters.

A unanimous decision was rendered on June 1, 1925, based on the Meyer case of two years before, invalidating the compulsory education act as interfering with religious freedom. The judges took the position that if the statute were carried into effect, it would force the closing of private school; they also upheld the contention of the Sisters that, "the enactment conflicts with the rights of parents to choose schools where their children will receive appropriate mental and religious training, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void." [17]

Chief Justice McReynolds read the judgment of the Court. He first pointed out that "No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare." [18]

But the Oregon school law went far beyond this. In the opinion of the Court, "we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control….Rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations." [19]

This has generally been considered one of the wisest decisions of the Supreme Court in voiding a state law as unconstitutional. Pius XI praised it as a declaration, based on the natural law, that the State has no authority "to fix a uniform standard of education by forcing children to receive instruction exclusively in public schools." [20]

Free Textbooks to Parochial School Children. Provisions in state constitutions have until recently prohibited the appropriation of public funds for free textbooks to other than public schools. As far back as 1854, the Maine legislature decided that such appropriation would be assistance to religious sects. In 1922 a similar position was taken by the courts in New York. But in 1928 the Louisiana legislature decreed that no matter what institution was attended, the school board of education "shall provide…school books for school children free of cost." [21] Cochran, a citizen and taxpayer, brought suit against the new law because it violated the state constitution which declared that, "No money shall ever be taken from the public treasury…in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister, or teacher thereof." [22] He also contended that the Fourteenth Amendment was violated. The supreme court of Louisiana upheld the constitutionality of the textbook legislation because "the appropriations were made for the specific purpose of purchasing schoolbooks for the use of the school children of the state, free of cost to them…The schools are not the beneficiaries of these appropriations. They obtain nothing from them, nor are they relieved of a single obligation because of them." [23] On appeal to the Supreme Court of the United States, a unanimous decision supported the lower court and defended the appropriation as an exercise, of "taxing power…exerted for a public purpose. The legislation does not segregate private schools, or their pupils, as its beneficiaries….Individual interests are aided only as the common interest is safeguarded." [24]

Following the lead of Louisiana, Mississippi passed a law providing textbooks to be loaned to students in all qualified elementary schools. Contested in 1941, the law was upheld by the state supreme court whose ruling on the case is a masterpiece of clarity.

If the pupil may fulfill its duty to the state by attending a parochial school, it is difficult to see why the state may not fulfil its duty to the pupil by encouraging it "by all suitable means." The state is under a duty to ignore the child's creed, but not its need….The state which allows the pupil to subscribe to any religious creed should not, because of his exercise of this right, proscribe him from benefits common to al1. [25]

A number of other states now empower local school authorities to distribute textbooks free of charge to the pupils of parochial schools. The Oregon law, e.g., directs the respective school board "to provide textbooks, prescribed or authorized by law, for the free use of all resident pupils enrolled and actually attending standard elementary schools." [26] Within a year after the law was passed (1942), the state supreme court dismissed a petition to have the matter put to popular referendum.

Transportation to Denominational Schools. The Everson school bus case decided by the Supreme Court in 1947 emphasized the government's willingness to cooperate with religious bodies. We shall not examine the animosity aroused in radical circles which are bent on nullifying the benefits of the Everson decision.

Up to 1946, eleven state courts had examined the legality of free bus transportation for children attending parochial schools, seven opposed and four in favor. Against this background, in 1947 the Supreme Court upheld (5 to 4) the constitutionality of the New Jersey bus law of 1941, which provided that "Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school, including transportation of such children to and from school other than a public school, except such school as is operated for profit in whole or in part." [27] The law was contested by a tax-payer because the local town had reimbursed parents when their children rode to a parish school on the highway buses.

In its majority opinion, the court laid down the norm that the state "cannot exclude Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-Believers, Presbyterians, or the members of any other faith, because of their faith or lack of it, from receiving the benefits of public welfare legislation." Correctly interpreted, the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary," as would be the case if parochial school children were denied "tax-raised" public transportation. [28]

Many Protestants are greatly perturbed over this breech in the wall of separation between church and state. The Seventh Day Adventists, who conduct 900 elementary schools of their own, were told to "not use buses which are operated at public expense." [29] A general assembly of Methodist bishops protested that the verdict "carries with it a serious threat to our public educational system which is a bulwark of democracy." [30] Baptist churchmen representing 17 million adherents declared, "We feel that the majority opinion must be acknowledged as turning back the hands of the clock as far as religious liberty and the separation of church and state are concerned.” [31] Catholics, on the other hand, believe that the Everson decision is a standing protest to those "who advocate secularism in education and in every department of our government." [32]

By 1950 at least fifteen states had approved free transportation for all children, but in some cases only after heated litigation. Thus in Kentucky the original statutes did not discriminate against pupils attending parish schools, until in 1942 the state supreme court ruled that this was unconstitutional. Three years later another decision qualified the previous ruling and allowed the county superintendents to provide public funds for transporting parochial children, as long as the money came from the general budget and not by special taxation.

Religious Exemption from Civil Duties and Practices. In the past thirty years, the Jehovah's Witnesses have figured in more cases of religious freedom tried before the Supreme Court than any other denomination, in fact, more than all other religious bodies combined. Between March, 1938, and April, 1955, they were defendants in forty-six trials, with the majority decided in their favor. In 1938, e.g., the Court ruled that a city ordinance in Griffin, Georgia, prohibiting distribution of literature without written permission was a violation of the First Amendment. Two years later a Connecticut conviction of the Witnesses for playing phonograph records which attacked the Catholic Church was held to abridge freedom of worship. Doctrinally the Witnesses claim that all civil authority is derived from the devil, with no right to command obedience from the citizens, especially to engage in military service. Most of the litigations, therefore, have centered around exemptions from the draft. Legally the Witnesses argue principally from their status as ministers of the Gospel--for everyone in the Watch Tower Society--and as conscientious objectors. They have been regularly victorious on both counts.

The outstanding issue of religious liberty raised by the Jehovah's Witnesses concerned the compulsory flag salute. Witnesses refused to salute the flag and forbade their children to do so because, they said, this violates the First Commandment of God which prohibits the worship of any graven image. Their refusal caused resentment and some seventeen States passed laws requiring all school children to salute the flag under penalty of expulsion if they refused. The question of whether these laws unconstitutionally restricted religious freedom came to the Supreme Court in 1940 and again in 1943. In the first trial, the Court decided against the Witnesses, but this provoked such a storm of protest in legal circles that the decision was reversed three years later.

In delivering the opinion of the Court, Justice Jackson isolated the problem as a question affecting the national unity. In favor of compulsory flag saluting it was urged that since national unity is the basis of national security, civil authorities have the right to select appropriate measures for its attainment, including coercion. But this, the Court objected, is contrary to the spirit of the American government. "There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority." [33]

Advocates of compulsory unification claim that freedom to be spiritually diverse or even contrary will disintegrate the social organization of our country. The Court disagreed, calling this "an unflattering estimate of the appeal of our institutions to free minds. Rather "we can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great." But even if the issue were much more significant, the right to diversity of opinion would still remain, since "freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." [34]

If there is any fixed star in our Constitution, Jackson concluded, "it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein." Consequently, the action of the local authorities in compelling the Witnesses to salute the flag "invades the sphere of intellect and spirit which it is the purpose of the First Amendment… to reserve from official control." [35]

Immunity from Persecution for Personal Belief. The most celebrated case in modern times showing the reluctance of the State to interfere with religious convictions came before the Supreme Court in 1943. It was the case of a fantastic religious group called the "I Am Movement," organized in Los Angeles by Guy W. Ballard. He claimed to be in touch with certain "ascended masters," chief of whom was St. Germain, and from these saints he received the communications which constituted the new religion. The climax was reached when St. Germain and Christ Himself were said to have appeared and allowed an artist to paint their portraits from life. Reproductions of these pictures and copies of the revelations were sold to the believers. Wife and son, Edna and Donald Ballard, successors to Guy, were convicted by the Federal Government of using the mails to defraud. They appealed to the Supreme Court which reversed the decision of the lower courts.

Justice William Douglas wrote the majority opinion, defending the rights of the Ballards to their peculiar beliefs. He explained that "The First Amendment has a dual aspect. It not only forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship, but also safeguards the free exercise of the chosen form of religion."

Freedom of religious belief, the Court stated, is essential to the American way of life. "It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law." [36]

No doubt the religious views espoused by the "I Am Movement" might seem incredible or even preposterous to most people. "But if these doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position." [37]

Mrs. Ballard and her son were acquitted. There were two dissenting opinions on matters of procedure, but they did not question the basic position of the majority opinion. Justice Robert Jackson, for example, said that, "I would dismiss the indictment and have done with this business of judicially examining other people's faiths." [38] The Supreme Court verdict has contributed materially to the spread of some twenty similar cults, imitating the "I Am Movement" and generally called "New Thought," which claim to have a membership of several million.

First Amendment Means Cooperation of Church and State. Cooperative religious instruction for public school children was first organized in 1914 by William A. Wirt, Superintendent of schools at Gary, Indiana. Pupils were released for instruction during regular school hours. The movement gradually spread to other cities, until by 1932 one out of ten school systems followed either the Gary system or the variant plan of "dismissed time," which meant that students were let out of school an hour or so earlier one day a week for religion classes, usually outside the school building.

Before long released and dismissed time were brought before the courts under pressure from such agencies as the American Civil Liberties Union. Within five years there were two Supreme Court decisions on the subject. In the McCollum case (1948), the court decided that released time as practiced in Champaign, Illinois, "showed the use of tax-supported property for religious instruction," and was therefore unconstitutional. [39] But the decision only served to brace the efforts of released time advocates like the International Council of Religious Education, which now urged Protestants to find other and more effective means to combat secularism in public education. As was hoped, the Supreme Court practically reversed itself in the Zorach school case of 1952.

According to the New York State Education Law, provision is made for absence during the school hours for religious observance and education outside the school grounds. Students must obtain written requests for such absence from their parents or guardians. Weekly reports of attendance for one hour a week at religious schools must be filed with the principal or teacher. The Board of Education of the City of New York supplemented the State regulations by forbidding any religious announcement in the public schools, and placing on the religious organizations and parents the full responsibility for children's attendance at religious instruction.

Released time was challenged by the appellants, Tessim Zorach and Esta Gluck, on the grounds that "the weight and influence of the school is put behind a program for religious instruction; public school teachers police it, keeping tab on students who are released; the classroom activities come to a halt while the students who are released for religious instruction are on leave; the school is a crutch on which the churches are leaning for support in their religious training; without the cooperation of the schools this 'released time' program, like the one in the McCollum case, would be futile and ineffective." [40]

Mr. Justice Douglas read the majority opinion (6 to 3), which upheld the New York State and City education laws. Fundamentally the appellants objected on the principle of separation of Church and State demanded by the First Amendment. The Court refuted their claim with a distinction that may become the basis for a new era in religio-civil cooperation in America.

"There cannot be the slightest doubt," it was conceded, "that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the 'free exercise' of religion and an 'establishment' of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute." [41]

But there is danger of reading into the Constitution more than it obviously means. "The First Amendment does not say that in every and all respects there shall be a separation of Church and State….Otherwise, the state and religion would be aliens to each other--hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; 'so help me God' in our courtroom oaths--these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: 'God save the United States and this Honorable Court'." [42]

For anyone to oppose released time for religious instruction is to ignore the most cherished traditions of our country and to support those who are hostile to all religious values. "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary….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." [43]

The Zorach decision evoked two kinds of reaction in the public mind, typical of the unnatural tension which exists between religion and secularism in the United States. Critics of the Supreme Court accused it of promoting "state coercion in behalf of religious programs (and) state discrimination between religious and nonreligious citizens (which) can do infinite damage to the future stability of the American principle of church and state separation." [44] Catholics and Christians generally rejoiced at the realism which the Court showed in refusing to separate Church and State into two hostile camps. "What happened will encourage those who refuse to believe that the religious indifferences within the community make it necessary to abandon the field entirely to the agnostics, the atheists and the secularists." [45] The judges, at that time, recognized that the prominence of religion in our national life was not a mere accident of history but an expression of the law of nations, that obedience to the will of God was the foundation of civil society.

The Shift from the Christian Character of Legislation. By 1970 things had shifted immensely, to the point that some European commentators seriously asked how (in 1930) the highest court in America could have said, "We are a Christian people." [45a]

Christians who believed that direct abortion is murder were being told that this was an exercise of civic freedom; that the government was merely allowing some people to legally terminate pregnancies at will. Christian families were given no share in their own tax money for church-related schools because they were "sectarian," i.e., not "neutral" on matters pertaining to God.

Sectarian Influences on National Legislation

One of the less known phases of Church and State relations in America is the degree of influence exerted by sectarian bodies on the national legislature. In reviewing the evidence, no effort will be made to evaluate the influence beyond its function of collaborative medium between the civil government and organized religion. The very fact that some denominations went to extremes in promoting (or protecting) their own welfare should demonstrate the wide interpretation that American tradition has placed on religious liberty.

Anti-Lottery Crusade. The campaign against public gambling on a national scale began as an organized opposition to the Louisiana lottery which was chartered by the state legislature in 1868 for twenty-five years. Church forces succeeded in preventing a renewal of the franchise in 1893; but the lottery interests were so powerful and widespread that nothing short of stringent national law was considered adequate to curb this "dangerous socially entrenched activity." Spearheaded by the clergy of Boston, the anti-lottery crusade enlisted the cooperation of the highest church officials in the country, including thirty-eight bishops of the Episcopal Church. Passed by the Senate, the bill was held up in the House until an intensive propaganda in the religious press of the country finally succeeded in having the Anti-Lottery Act passed by Congress in 1895. The opening clause of the Act forbids "any paper, purporting to be a ticket…dependent upon the event of a lottery…offering prizes dependent on lot or chance…to be brought into the United States, or carried by the mails of the United States or transferred from one State to another," under heavy penalties of fine and imprisonment. [46] It is said "there has been no event in our history where the influence of the churches and their clergy has been more effectively secured in the interests of wise social legislation." [47] In 1903 the United States Supreme Court upheld the constitutionality of the Act and thus laid the basis for later legislation which excludes obscene literature from interstate commerce.

Protection of Christian Science. The legislative debate over Christian Science began shortly after Mrs. Baker Eddy published her textbook, Science and Health with a Key to the Scriptures, in 1875. According to Mrs. Eddy, sickness is unreal, and healing is accomplished by spiritual understanding, without medicine or surgery. Doctors opposed the doctrine as harmful to their profession and a danger to society. But the Scientists defended themselves so successfully in the courts that by 1949 all the States in the country had legalized the public practice of Christian Science as a healing art. Depending on the juridical stand of their opponents, the followers of Mrs. Eddy introduced a variety of bills in the legislature, but always with a single end in view: immunity from prosecution for rejecting medical treatment and relying only on healing through the mind. A typical federal law for the District of Columbia (1928), regulating the practice of medicine, states, "The provisions of this Act shall not be construed to apply…to persons treating human ailments by prayer or spiritual means, as an exercise or enjoyment of religious freedom." [48] The Ohio Statute (1949) takes a different approach, but comes to the same thing, providing that "treatment of human ills through prayer alone by a practitioner of the Christian Science Church, in accordance with the tenets and creed of such church, shall not be regarded as the practice of medicine." [49] Other special recognitions of Christian Science are scattered through the state laws, notably exemption from jury duty for Science "readers" and "practitioners." A new issue is the question of certain health features of social security legislation, where the Scientists object that they cannot pay for disability benefits because they do not believe in the reality of sickness or disease.

National Prohibition. Protestant opposition to alcoholic beverages goes back to John Wesley, the founder of Methodism, who forbade his followers to drink, sell or even to handle that "liquid fire." Led by the Methodists, American churchmen promoted the organization of a National Temperance Society (1865), and the National Prohibition Party, committed to "the total prohibition of the manufacturing, importation and traffic of intoxicating beverages." [50] Five years before the Volstead Act was passed, the liquor dealers of the country publicly identified their chief opponents. "It is only necessary," they said, "to read the list of those persons who are active in the present propaganda for legislative prohibition to realize that it is the Methodist Church which is obsessed with the ambition to gain control of the government." [51] After prohibition was repealed, the Methodist Episcopal Church declared "it has accepted no discharge in the war for a saloonless nation free from the domination of legalized liquor." [52] In its official statement of doctrine, the Methodist Church (membership: 10 million) "reasserts its long-established conviction that intoxicating liquor cannot be legalized without sin….Therefore, to be true to itself the Church must be militant in opposition to the liquor traffic." [53]

Pacifists and Conscientious Objectors. The legal status of conscientious objectors to military service shows the extent to which the American government has respected the religious convictions of its citizens; it is also a graphic example of the power of organized churches to influence legislation in their favor.

The Quakers were pioneers in concerted opposition to military service. In 1865 they secured the incorporation of an exception clause into the National Mandatory Enrollment Act, which seems to have been the first recognition by the federal government of a religious scruple against war. Section 17 of the Act provided that "members of religious denominations, who shall by oath declare that they are conscientiously opposed to the bearing of arms, and who are prohibited from doing so by the rules and articles of faith and practice of said religious denominations, shall when drafted into the military service, be considered non-combatants, and shall be assigned by the Secretary of War to duty in the hospitals, or to the care of freedmen, or shall pay the sum of three hundred dollars to such person as the Secretary of War shall designate to receive it, to be applied to the benefit of the sick and wounded soldiers." [54]

After the Civil War, conscription was not considered necessary until America's entrance into World War I in 1917. At that time Congress exempted "the members of any well-recognized sect or organization whose existing creed or principles forbid its members to participate in war in any form, but no person shall be exempted from service in any capacities that the President shall declare to be non-combatant." [55] While this clause was liberally interpreted, there had to be a limit to its extension; and consequently those who refused to engage in non-combatant services were court-martialed. It is estimated that 450 men were imprisoned on this score, mainly members of religious groups which felt it was wrong to promote the war effort in any capacity. A more serious objection against the law was that it made no provision for individual pacifists in those denominations which had not adopted a definite policy prohibiting participation in the war.

Between the two World Wars, the Baptists, Methodists and others successfully promoted a modification of the existing law. As it now reads, military conscription does not "require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." [56]

American Representation at the Vatican. The history of American representation at the Vatican covers two periods: from 1848 to 1867, when the United States had a fully-accredited diplomat at the papal court, and 1939 to 1950, when Myron C. Taylor was President Roosevelt's personal representative to the Holy Father. Both periods are significant: as indicating a certain degree of co-operation between this country and the Holy See, But more pertinent to the present study, as an object lesson in Protestant influence which cut short the American delegation.

Jacob L. Martin, a Catholic convert, was appointed to the Roman legation in 1848 after formal approval by Congress. "There is one consideration," his instructions read, "which you ought always to keep in view in your intercourse with the Papal authorities. Most, if-not all, the Governments which have Diplomatic Representatives at Rome are connected with the Pope as the head of the Catholic Church. In this respect the Government of the United States occupies an entirely different position. It possesses no power whatever over the question of religion. All denominations of Christians stand on the same footing in this country--and every man enjoys the inestimable right of worshiping his God according to the dictates of his own conscience. Your efforts therefore will be devoted exclusively to the cultivation of the most friendly civil relations with the Papal government." [57]

Contrary to the expectations of critics, the twenty years of American Vatican relationship passed without serious difficulty and with recognized benefits to the United States. The refusal by the Washington Monument Association in 1852 of a block of marble for the monument sent by the Pope was an exception to the general rule. Yet as early as 1850 sectarians in the States protested against the restriction of Protestant worship in Rome, and finally this issue terminated the American ministry to the Holy See. Actually the papal authorities permitted non-Catholic services to be held regularly on the American legation property. Later, when the number of worshipers increased, apartments were leased outside the legation where, the United States minister reported, "our American fellow-citizens have assembled for public worship…without let or hindrance." [58] But the facts were misrepresented in the secular press, so that in 1867 Congress refused to appropriate any more money for the American delegation in Rome.

The more recent experiment in American-Papal relations is common knowledge. One detail, however, which should be emphasized was the theoretical basis for the Protestant opposition to Myron Taylor's presence at the Vatican. During the years in which the Federal Council of Churches protested against the appointment, it insisted that "we are not speaking against Roman Catholicism as a form of Christian faith worship…But we find it necessary to make a sharp distinction between the Roman Catholic religion and the political power exercised by the Roman Catholic hierarchy for its own institutional ends." [59] It was this unproved accusation of the Church's political aims, backed by thirty-odd million members in the Federal Council, which ended America's second diplomatic alliance with the Vatican.

As an anticlimax, on October 20, 1951, President Truman nominated General Mark W. Clark to be United States Ambassador to the Vatican, resuming the formal relations which ended in 1868. This provoked a storm of protest, from the successor of the Federal Council, the National Council of the Churches of Christ, and from the American Jewish Congress. Clark withdrew after members of Congress raised a legal technicality, that a man in military service is not eligible for the post of ambassador.

Legislation Affecting the Welfare of the Nation

More significant than any sectarian impact is the wide range of influence exercised by religious forces in shaping the national legislation for the common good. Again we prescind from the legal provisions found in some states but absent from others. Also, unlike the laws promoted for denominational ends, the cases which follow are the heritage of the whole nation and advance the cause of religion as such, even when the original legislation was instituted by a minority religious body.

Federal Approval of Chaplaincies. Among the best evidence that the State values the place of religion in the life of its citizens is the federal government's appointment of Chaplains for the Army and Navy, the Senate and House of Representatives. The practice began during the Revolutionary War when the Continental Congress in 1775 provided for the pay of chaplains, and the following year authorized the appointment of ministers of the Gospel as chaplains in the army. In 1777 George Washington succeeded in obtaining separate chaplains for individual regiments, instead of one for each brigade, in order to give "every Regiment an Opportunity of having a chaplain of their own religious Sentiments." [60] Writing from Valley Forge, he directed that "Divine service be performed every Sunday at eleven o'clock," for "to the distinguished character of a Patriot, it should be our highest glory to add the more distinguished character of a Christian." [61]

This spirit has remained substantially unchanged. The Army Regulations issued by the War Department in 1937 instructed the chaplains to "hold appropriate religious services for the benefit of the command," to "serve as friends, counselors and guides without discrimination…regardless of creed or sect, and strive to promote morality, religion and good order." [62] In 1942 Congress appropriated a large subsidy to build chapels in Army posts, camps and stations throughout the country, where members of the armed forces--Catholic, Protestant and Jewish--might worship in a dignified setting. Described as "one of the most interesting cases of Church-State cooperation in the United States," this appropriation met with practically no opposition from any quarter.

Chaplaincies in Congress have an equally impressive history. Jacob Duche, an Episcopalian, was the first chaplain elected by Congress (1776), receiving a stipend for his services of opening congressional sessions every day with prayer. In 1789 the Senate and House voted to appoint one chaplain each, of different denominations. For several decades their duties included a sermon in the Hall of Representatives on Sunday morning, besides "visiting the members detained from their seats by sickness," and attending "on the funeral solemnities in the event of a death among the members." [63] By 1887 the Sunday sermon was dropped after the privilege was abused by certain politically-minded preachers.

Apparently the only voice of criticism of congressional chaplaincies was James Madison, who protested that such practice "establishes a religious worship for the national representatives, to be performed by Ministers of religion." It is also "a palpable violation of equal rights (since) the tenets of the chaplains elected (by the majority) shut the door of worship against the members whose creeds and consciences forbid a participation in that of the majority…Could a Catholic clergyman ever hope to be elected a Chaplain?" [64] Madison was a poor prophet because at least two Catholic priests have served as chaplains to Congress, though one of them, Charles Pise, had to defend his position against nativist opponents. "I acknowledge no allegiance to the Pope's temporal power," Pise declared. "I am no subject of his dominions--I have sworn no fealty to his throne--but I am, as all American Catholics glory to be, independent of all foreign temporal power--devoted to freedom, to unqualified toleration, to republican institutions." [65]

In current practice, each session of both Houses of Congress is opened with prayer by the respective chaplain, invoking divine assistance on the subsequent deliberations, and frequently ending on a Christian note, like, "Hear us, 0 God, in Christ's name." [66]

Inviolability of Professional Religious Secrecy. In 1813 a case was decided by the Court of General Sessions in the City of New York, that is of vital importance to the Catholic Church, because it led to the current legal inviolability of any secrets confided to a minister of religion in the pursuit of his "sacred profession."

The case arose when the Rector of St. Peter's Church in New York, Anthony Kohlmann, S.J., was summoned to appear in police court where a man who had certain property stolen from him reported it was later returned to him by Father Kohlmann. When questioned about the persons from whom he received the stolen goods, the priest refused to testify, saying he could not answer because the information came to him through the confessional. On submission to the grand jury, the latter subpoenaed the rector to appear and make a declaration. He appeared, but respectfully declined to identify his penitent or give any assistance towards prosecuting the thief. In a subsequent trial before the Court of General Sessions, Father Kohlmann defended his silence in a detailed statement that has become part of constitutional history. "The question now before the court is this," he said. "Whether a Roman Catholic priest can in any case be justified in revealing the secrets of sacramental confession? I say, he cannot: the reason whereof must be obvious to everyone acquainted with the tenets of the Catholic Church respecting the sacraments. For it is, and ever was, a tenet of the Catholic Church that Jesus Christ, the divine Founder of Christianity, has instituted seven sacraments, neither more nor less. It is likewise an article of our faith that the sacrament of penance, of which the sacramental confession is component part, is one of the said seven sacraments. It is, in fine, the doctrine of the Catholic Church that the same divine Author of the sacraments has laid the obligation of a perpetual and inviolable secrecy on the minister of the said sacrament. If, therefore, I or any other Roman Catholic priest…should so far forget my sacred ministry, and become so abandoned as to reveal either directly or indirectly, any part of what has been entrusted to me in the sacred tribunal of penance…I should forever degrade myself in the eyes of the Catholic Church, and I hesitate not to say, in the eye of every man of sound principle (and) agreeably to the dictates of my conscience, I should render myself guilty, by such a disclosure, of everlasting punishment in the life to come….Having thus briefly stated to this honorable Court, my reasons for not answering the questions of the Attorney General, in the present instance, I trust they will not be found trivial and unsatisfactory." [67]

To the credit of the New York judiciary, the reasons were found so satisfactory that the court decided unanimously in favor of the Catholic position and absolved the priest of any obligation to testify. "It cannot for a moment be believed," the judge declared, "that the mild and just principles of the common Law would place the witness in such a dreadful predicament (that), if he tells the truth he violates his ecclesiastical oath; if he prevaricates he violates his judicial oath.” [68]

Not long after the decision, it was incorporated into the state law, to the effect that, "No minister of the Gospel, or priest of any denomination whatsoever shall be allowed to disclose any confession made to him in his professional character in the course of discipline enjoined by the rules or practices of such denomination." [69] Thus from safeguarding a principle of the Catholic faith the law now served to protect the secrecy of any information entrusted to the minister of every religious body. Other states followed the lead of New York and either protect the seal of confession by statutory law or use the New York legislation as their norm for exempting priests and others from testifying on evidence received in the course of their ministry.

Religious Observances Authorized by Congress. The number of religious observances proclaimed by the Presidents of the United States and at least permitted by Congress runs to over a hundred. Especially in times of crisis or national peril, Americans have come to expect the chief executive to announce a special day of prayer or fasting for the entire nation. During the cholera epidemic of 1849 President Taylor ordered that "all business be suspended" on a certain day, and recommended that the people "assemble in their respective places of worship…to implore the Almighty…to stay the destroying hand which is now lifted up against us." As tension mounted in the contest over slavery President James Buchanan asked for "fasting and prayer throughout the Union," since "in this hour of calamity and peril, to whom shall we resort for relief if not to the God of our fathers." [70] At a critical stage in World War II, President Roosevelt issued a proclamation, setting aside September 8, 1940, "as a day of prayer," and urging "the people of the United States, to implore of God "to grant to this land and to the troubled world a righteous, enduring peace.” [71]

The most significant of these religious proclamations, because of its long history and explicit authorization by Congress, is associated with Thanksgiving Day. A resolution to observe a national Thanksgiving Day was introduced by Elias Boudinot in the first Congress after the adoption of the Federal Constitution. After some opposition, a bill was passed by both Houses authorising President Washington "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 favors of Almighty God." [72] Breathing a deeply religious spirit, Washington's proclamation (October 3, 1789) began with the observation that "it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor." In pursuance of the request of Congress, he assigned a special day "to be devoted by the people of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our humble and sincere thanks…and also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of nations, and beseech Him to pardon our national and other transgressions." [73]

From Washington to Eisenhower only one of the presidents was opposed to carrying out the wishes of the First Congress for an annual Thanksgiving Day proclamation. "For conscientious reasons," Thomas Jefferson broke with the tradition of Washington and Adams on the propriety of the Federal Government's establishing days of national prayer and thanksgiving:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, disciplines, or exercises…I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrines; nor of the religious societies, that the General Government should be invested with the power of effecting any uniformity of time or matter among them. [74]

It should be remembered that Jefferson was a professed Deist who openly denied the Christian revelation, although in his private life he showed a high admiration for the person and teachings of Jesus, whom he regarded as "the greatest of all the reformers." [75]

Abraham Lincoln made Thanksgiving Day a permanent American institution, in gratitude and "praise to Almighty God, the beneficent Creator and Ruler of the Universe," when the citizens of the country should "reverently humble themselves in the dust and from thence offer up penitent and fervent prayers and supplications to the Great Dispenser of Events" [76] A more recent legislation on the subject was a joint resolution of Congress, approved in 1941, designating the fourth Thursday in November of each year as Thanksgiving Day.

The Churches and Slavery. It is a matter of history that the single largest influence in bringing about the abolition of slavery was the concerted action of a dozen religious denominations during the first half of the nineteenth century. Feeling over the question ran so high that it caused a permanent split among the Baptists (1845) and the Presbyterians (1861), and a Methodist schism that lasted ninety-five years (1844-1939), dividing the sects into Northern and Southern denominations.

As early as 1787 the Presbyterian Synods of New York and Philadelphia recommended to all their people, "to use the most prudent measures…in the counties where they live, to procure eventually the final abolition of slavery in America." [77] The American Anti-Slavery Society was established in 1833 by representative Presbyterians, Congregationalists, Methodists and Baptists, with the avowed purpose of "influencing Congress" to abolish slavery. In 1835 the Quakers petitioned Congress to outlaw domestic slave trade, which prompted Senator Calhoun to complain that petitions "do not come as heretofore, singly and far apart, but in vast numbers from soured and agitated communities." [78] About the same time a memorial, two hundred feet in length, was presented to Congress, bearing the names of three thousand New England clergymen and begging "In the name of Almighty God," that slavery be abolished. In a few months 125 distinct remonstrances were sent by the ministers of New England. At first the congressional reaction was unfavorable. A committee of the House of Representatives recommended that "all petitions relating…to the subject of slavery or the abolition of slavery, shall, without being either printed or referred, be laid upon the table, and…no further action whatever shall be had thereon." [79] John Quincy Adams denounced the House measure as a "direct violation of the Constitution of the United States," because it contradicted the provision of the Bill of Rights guaranteeing the right of petition which, he said, is "coextensive with the liberty of speech." [80]

Nine days before the first Emancipation Proclamation, Abraham Lincoln received a delegation of clergymen from Chicago who believed that "the country is now suffering under Divine Judgments for the sin of oppression," and favored "the adoption of a memorial to the President of the United States to issue a decree of emancipation." [81] In the light of its background, it is not surprising that the final proclamation was couched in religious terms, invoking "the considerate judgment of mankind and the gracious favor of Almighty God."

Clerical Exemptions. The American government's respect for clerical rights and privileges goes back to colonial times. Reflecting the principles of Canon Law, civil legislation in the United States is specially intended to remove legal impediments from those working in the ministry, and provide for their services at all times, even during national crises. Beyond doubt the most important exemption is from military service, in favor of the clergy and members of religious orders. It came into prominence in modern times as a result of the law of conscription and universal military training, and reached a crisis on the eve of America's entry into the Second World War.

As originally drafted in 1940, the Burke-Wadsworth Bill provided only for the deferment of regularly ordained ministers of religion. A representative from the Apostolic Delegation in Washington appeared before the House committee to protest, stating that if conscription was necessary it should provide for a complete exemption of the clergy, not a mere deferment, along with students for the priesthood and members of religious communities. This was in contrast to the general Protestant feeling that theological students should not appeal for exemption, and a widespread opinion that ministers as ministers should not be automatically exempted. A special problem arose as to whether lay brothers in Catholic communities qualified as "regular ministers of religion." Congress decided in their favor after Cardinal Mooney certified that according to Church Law, lay brothers are "not only bound to the same obligations of the clerical state, but they also enjoy the very same privileges as clerics." [82]

In its present form, the law provides that, "regularly or duly ordained ministers of religion…and students preparing for the ministry…who are satisfactorily pursuing full-time courses of instruction in recognized theological or divinity schools, or who are satisfactorily pursuing full-time courses of instruction leading to their entrance into recognized theological or divinity schools in which they have been pre-enrolled, shall be exempt from (military) training and service." [83]

There has been a steadily wider application of the original basic law. In 1940 the law exempted students for the ministry, provided they attended divinity schools, recognized as such, for more than one year prior to 1940. Eight years later, the one-year limit was removed. In 1954 not only divinity students, but also those in pre-theological studies were exempted. After litigation in the lower courts, the Jehovah's Witnesses were upheld by the Supreme Court as ministers of religion, which means that nominally every member of the Watch Tower Society is exempt from military service.

Unwritten Legislation. Not a small part of America's religious tradition is simply taken for granted and acted upon without hindrance, on the unspoken assumption that churches are an integral part of the commonwealth and indispensable to the national welfare. Unless seen in contrast with the laws of other nations which inhibit the practice of religion, the advantages of American legislation may not be fully appreciated.

By way of comparison, the Constitution of Mexico, as amended up to 1950, has a variety of provisions that make sobering reading to anyone familiar with conditions in the United States.

Aimed directly at the Church's freedom to own and dispose of material goods, the Mexican law provides that "the religious institutions known as churches, irrespective of creed, may in no case acquire, hold or administer real property or hold mortgages thereon. Property so held at present, either directly or through third parties, shall revert to the nation, any person whatsoever being authorized to denounce property so held." [84]

Equally sweeping is the provision against all agencies for the common good. "Public or private charitable institutions for the rendering of assistance to the needy, for scientific research, or for the diffusion of knowledge…may under no circumstances be under the patronage, direction, administration, charge, or supervision of religious orders or institutions, or of ministers of any religious creed, or their followers, even though the former or the latter may not be in active service." [85]

Completely inhibitive of any part in determining the moral principles of the nation, to the point of disfranchising all churchmen is the provision that, "Ministers of religious creeds…shall have no vote, nor be eligible to office." [86] And to forestall any criticism of government practices, "No periodical publication which, by reason of its program, its title, or merely its general tendencies, is of a religious character, may comment upon political affairs of the nation, or publish any information regarding the acts of the authorities of the country or of private individuals, insofar as they are directly connected with public affairs." [87]

There is more than mere academic value in even this brief comparison with the religious laws of another country. It should emphasize what may be a commonplace but needs reiteration, that the vitality of American Catholicism and the strength of its institutions are not an accident of history. They are the result of a divine power in the Church joined to the opportunity she has for development through the blessings of religious freedom.

Chapter XIII - References

1. Permoli v. First Municipality (1845), 44 U.S. 589, 609.
   
   
2. Carl Zollman, American Church Law, St. Paul, Minn., 1933, p. 8
   
   
3. American Civil Liberties Union, Religious Liberty in the United States Today, 1939, p. 8.
   
   
4. Annals of Congress, vol. I, p. 730.
   
   
5. Ibid.
   
   
6. James Madison, "Memorial and Remonstrance" to the General Assembly of Virginia, (1784), Democratic Spirit (B. Smith, ed.) New York, 1941, p. 110.
   
   
7. "Zorach v. Clauson" (1952), Supreme Court, 431.
   
   
8. "The Trustees of Dartmouth College v. Woodward," Leading Constitutional Decisions, New York, 1947, pp. 181, 183.
   
   
9. Reynolds v. United States, 98 U. S. 145-167.
   
   
10. Ibid.
    
    
11. Ibid.
    
    
12. Church of the Holy Trinity, v. United States, (1892), 143 U.S. 457-471.
    
    
13. Macintosh v. United States (1931), 283 U. S. 625.
    
    
14. Meyer v. Nebraska, 262 U.S. 397.
    
    
15. Quoted from America, July 30, 1938.
    
    
16. Meyer v. Nebraska, 262 U.S. 399-400.
    
    
17. "Pierce v. Society of Sisters" (1924), 45 Supreme Court, 571.
    
    
18. Ibid.
    
    
19. Ibid.
    
    
20. Pius XI, Christian Education of Youth, New York, Paulist Press, p. 14.
    
    
21. Louisiana Laws, 1928, Act No. 100, Sec. 1.
    
    
22. Constitution of Louisiana, Article 53.
    
    
23. Cochran v. Louisiana State Board of Education, 281 U.S., 370.
    
    
24. Ibid. The U. S. Supreme Court merely affirmed the decision of the lower tribunal and added a commentary of its own. It is scarcely a coincidence that this case has been given slight attention in Protestant literature on church and state relations. The position taken by the state and federal courts is too outspokenly in favor of distributive justice towards private and parochial schools.
    
    
25. "Chance v. Mississippi State Textbook Rating and Purchasing Board," 200 Southern Reporter, 706, (1941).
    
    
26. School Laws (Oregon), Sec. 111-2015, 1941 Amendment.
    
    
27. New Jersey Laws, 1941, c. 191, pg. 581.
    
    
28. Everson v. Board of Education, 330 U.S., 1, 13-16.
    
    
29. Liberty, Fourth Quarter, 1947.
    
    
30. Churchman, May 15, 1947.
    
    
31. Op. cit., March 1, 1947.
    
    
32. Statement of the NCWC through the chairman of its administrative board, Archbishop McNicholas of Cincinnati, in reply to the Manifesto of the Newly organized POAU, which was charged with assuming that "their attempt to have the Supreme Court reverse its decision (in the Everson case) is a patriotic virtue, but that it is criminal for others to seek an interpretation of an amendment to the Constitution." New York Herald-Tribune, January 26, 1948.
    
    
33. "West Virginia Board of Education v. Barnette," Leading Constitutional Decisions, p. 131.
    
    
34. Ibid.
    
    
35. Ibid., pp. 131-132.
    
    
36. United States v. Ballard, Church and State in the United States, pp. 374-375.
    
    
37. Ibid.
    
    
38. Ibid.
    
    
39. Cases on Constitutional Law (Noel T. Dowling, ed.)_, Brooklyn 1950, p. 2073.
    
    
40. "Zorach v. Clauson," loc. cit., No. 431 (Private Printing), pg. 2.
    
    
41. Ibid.
    
    
42. Ibid.
    
    
43. Ibid.
    
    
44. The Christian Century, May 14, 1952, p. 583.
    
    
45. Boston Pilot, May 3, 1952.

45. (a) Holy Trinity Church v. United States, 143 U.S. 470-471.
    
    
46. Samuel H. Woodbridge, The Overthrow of the Louisiana Lottery, 1921 (Supplement), pp. 1, 2.
    
    
47. Anson P. Stokes, Church and State in the United States, New York, 1950.
    
    
48. Table of Statutory Provisions Favorable to Christian Science or to Freedom Concerning Health, Boston, p. 10.
    
    
49. As reported by Time, July 18, 1949.
    
    
50. Luther A. Weigle, American Idealism, New Haven, 1928, p. 208.
    
    
51. H. U. Falkner, The Quest for Social Justice, 1898-1914, New York, 1951, p. 224.
    
    
52. Doctrines and Discipline of the Methodist Episcopal Church, 1936, p. 6?4.
    
    
53. Discipline of the Methodist Church, 1952, p. 639.
    
    
54. Carl Zollman, American Church Law, St. Paul, Minn., 1933, p. 162.
    
    
55. Federal Council Bulletin, September, 1940, p. 6.
    
    
56. Selective Training and Service Act of 1940, Sec. 5-g.
    
    
57. Leo F. Stock, United States Ministers to the Papal States, Washington, 1933, pp. 2-3.
    
    
58. Ibid., p. 415.
    
    
59. Federal Council Bulletin, January, 1945.
    
    
60. American Army Chaplaincy--A Brief History, 1946, p. 6.
    
    
61. Revolutionary Orders of General Washington, New York, 1844, pp. 74-77.
    
    
62. Army Regulations, No. 60-5, August 20, 1937.
    
    
63. Lorenzo D. Johnson, Chaplains of the General Government, New York, 1856, p. 48.
    
    
64. J. M. O'Neill, Religion and Education Under the Constitution, New York,
    
    
65. E. Stacy Matheny, American Devotion, Columbus, 1940, p. 119.
    
    
66. Congressional Records, June 27, 1956, 10048.
    
    
67. William Sampson, The Catholic Question in America, pp. 11-12.
    
    
68. Ibid., p. 183.
    
    
69. Stokes, op. cit., vol. I, p. 849.
    
    
70. B. F. Morris, Christian_. Life and Character of the Civil Institutions of the United States, Philadelphia, 1864, pp. 555-556.
    
    
71. Boston Evening Transcript, Aug. 8, 1940.
    
    
72. Annals of Congress, September 25, 1789.
    
    
73. Writings of Washington, vol. XII, p. 155.
    
    
74. Writings of Thomas Jefferson, vol. XI, 428-430.
    
    
75. Adrienne Koch and William Peden, The Life and Selected Writings of Thomas Jefferson, New York, 1944, p. 694.
    
    
76. James D. Richardson, Messages and Papers of the Presidents, Washington, vol. V, p. 3430.
    
    
77. Robert E. Thompson, History of the Presbyterian Churches in the United States, New York, p. 363.
    
    
78. S. E. Morison and H. S. Commager, The Growth of the American Republic, New York, 1936, p. 110.
    
    
79. Gilbert H. Barnes, The Anti-Slavery Impulse 1820-1844, New York, 1935, p. 110.
    
    
80. Ibid., pp. 110, 124.
    
    
81. Charles B. Swaney, Episcopal Methodism and Slavery, Boston, 1926, p. 328.
    
    
82. New York Times, February 2, 1941.
    
    
83. Selective Service System, See. 6-g.
    
    
84. "Political Constitution of the United States of Mexico" Article 27, Constitutions of the Nation., vol. II, 1950, p. 422.
    
    
85. Ibid., pp. 422-423.
    
    
86. Ibid., Article 130, p. 457.
    
    
87. Ibid., p. 458.

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