The Founders Did Not Seek to Abolish Religion

As the year-end holidays approach, we are once again reminded of the late U.S. Supreme Court Justice William O. Douglas' observation that "[w]e are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U.S. 306, 313 (1952). Right after Halloween, holiday decorations start going up, musical and dramatic events are staged, radio and television "specials" are presented and merchandising shifts into high gear. In many areas, holiday displays are erected, and across the nation places of worship get ready to celebrate. It is also nice to remember that we are "one Nation under God," and to know that, at least for the time being, our Pledge of Allegiance does not constitute the "establishment' of religion.

Earlier this year the majority of a three judge panel of the 9th U.S. Circuit Court of Appeals determined that the reference to "one Nation under God" in our Pledge of Allegiance does not violate the First Amendment. Newdow v. Rio Linda Union Sch. Dist., 597 F.3d 1007 (9th Cir. 2010). The court held that "one Nation under God" is "a reference to the historical and religious traditions of our country, not a personal affirmation through prayer or invocation that the speaker believes in God." Judge Stephen Reinhardt's lengthy dissent posits that "Under no sound legal analysis adhering to binding Supreme Court precedent could this court uphold state-directed, teacher-led daily recitation of the "under God" version of the Pledge of Allegiance by children in public schools." History seems to favor the majority's view.

Indeed, the first Congress enacted legislation providing the U.S. House of Representatives and Senate with paid chaplains, and later created the national motto of "In God We Trust" for our currency. In fact, on the day after the House of Representatives' first session, where it voted to adopt what ultimately became the U.S. Constitution's First Amendment, a congressional resolution was passed asking President George Washington to issue a Thanksgiving Day proclamation so that the people could "return to Almighty God their sincere thanks for the many blessings he had poured down upon them." President Washington made such a proclamation, designating a day of thanksgiving, "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 good that was, that is, or that will be...." Early Presidents John Adams and James Madison also gave such proclamations, but Thomas Jefferson did not. He believed in a "wall of separation between church and state," and regarding a thanksgiving proclamation, said: "Fasting and prayer are religious exercises; the enjoining of them an act of discipline. Every religious society has a right to determine for itself the times for these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited them." But, Jefferson was the exception. In 2009, following an unbroken tradition since Abraham Lincoln, President Barack Obama's Thanksgiving Day proclamation cited Washington's reference to "Almighty God," and ended in the way that many government documents (including the U.S. Constitution) end; giving the date as: "in the year of our Lord...."

Although it is clear that the first Congress that passed, and the states which ratified, the Bill of Rights did not want the federal government to establish a national religion, the religiously motivated governmental action by those early Framers suggest that they had a far different picture of the Establishment Clause's purpose than Jefferson's "wall of separation between church and State." Indeed, Jefferson's influence on the Framers is doubtful because, in point of historical fact, at the time the Constitution and the Bill of Rights were passed and ratified, Jefferson was in France as the U.S. representative to that country. His correspondence with James Madison and others may have impacted their attitudes, but the fact remains he was not present when the First Amendment was debated, passed or ratified. Indeed, notwithstanding Jefferson's writings from France, Madison's espoused view, and that of others who were present during the deliberations and ratification of the First Amendment, was that the Establishment Clause did not require neutrality on the part of government in respect to religion.

Another historical fact that cuts against the erection of a wall between church and state is that at the time the First Amendment was adopted, many states, especially those in New England, had established religions. It is not at all likely that those states would have ratified an amendment to the Constitution, which they understood to somehow inhibit their ability to continue advocating their state religion. Instead, the notion was to prevent the federal government from pre-empting those state-endorsed religions. It seems equally unlikely that the mostly northern states, which ratified the post-Civil War 14th Amendment, did so with the understanding it prevented them from continuing their religious practices, as long as those practices were not racially discriminatory. In fact, one of the congressional authors of the 14th Amendment, who believed that the Bill of Rights should operate against the states, conceded that the 14th Amendment as passed and ratified "takes from no State any right which hitherto pertained to the several States of the Union, but it imposes a limitation upon the States to correct their abuses of power...." J. James, "The Ratification of the Fourteenth Amendment" 46 (1983), citing remarks of Ohio Congressman John Bingham as reported in the "Cincinnati Commercial," 10 August 1866. Thus, the historical evidence suggests that neither the First nor the 14th Amendments was intended to "erect a wall of separation between church and state."

Indeed, the 9th Circuit notes that the Pledge of Allegiance "reflects many beliefs held by the Founding Fathers of this country - the same men who authored the Establishment Clause - including that it is the people who should and do hold the power, not the government. They believed that the people derive their most important rights, not from the government, but from God. (citing The Declaration of Independence, 1 U.S.C. Section XLIII (1776)). The Founders did not see these two ideas - that individuals possessed certain God-given rights which no government can take away, and that we do not want our nation to establish a religion - as being in conflict." Newdow, 597 F.3d at 1013.

Thus, the First Amendment requires that we not "establish" a government religion, and that we accept that atheists like the plaintiffs in Newdow do not believe in a "God," but it does not require that we endorse those atheists' beliefs by banning all public expression of our nation's religious traditions. Invoking the old television commercial, to do so would be like trying to fool Mother Nature!