5000 Year Leap (43 page)

To encourage religious studies by college students of different faiths, Jefferson proposed the following:

1. He suggested that the responsibility for teaching “the proofs of the being of a God, the creator, preserver, and supreme ruler of the universe, the author of all the relations of morality, and of the laws and obligations these infer, will be within the province of the professor of ethics.” (Randolph, editor, Early History of the University of Virginia, p. 441)

2. The University faculty will also teach “the developments of these moral obligations, of those in which all sects agree, (together with) a knowledge of the languages, Hebrew, Greek, and Latin a basis will be formed common to all sects.” (Ibid.)

3. Encourage “the different religious sections to establish, each for itself, a professorship of their own tenets, on the confines (campus) of the university, so near ... that their students may attend the lectures there, and have the free use of our library, and every other accommodation we can give them; preserving, however, their independence of us and of each other.” (Ibid., p. 475)

4. Jefferson was also in favor of “enabling students of the University to attend religious exercises with the professor of their particular sect, either in the rooms of the buildings still to be erected (by each denomination on campus) ... or in the lecturing room of such professor.” (Ibid.)

5. Jefferson felt that students should be urged to participate in regular religious exercises but do so without conflicting with the established schedule of the University. Said he: “Should the religious sects of this State, or any of them, according to the invitation held out to them, establish within or adjacent to, the precincts of the University, schools for instruction in the religion of their sect, the students of the University will be free, and expected to attend religious worship at the establishment of their respective sects ... in time to meet their school in the University at its stated hour.” (Padover, editor, The Complete Jefferson, p. 1110, emphasis added)

Summary of Jefferson’s Views

From these various documented sources it is apparent that Thomas Jefferson had a number of clearly defined views which he hoped would become the traditional American life-style with reference to religion and the Constitution. Perhaps these views might be summarized as follows:

1. The First Amendment prohibits the Federal government from intermeddling in religious matters in any way. It is not to take any positive action which would tend to create or favor some “establishment of religion” nor is it to interfere or prohibit the free exercise of any religion.

2. The individual state, however has the responsibility to see that laws and conditions are such that all religious denominations or sects receive equal treatment.

3. There should be a regularly established policy of teaching the fundamentals of religion and morality in the public schools.

4. In addition, there should be an opportunity on the university level at least, for each denomination to be invited to build facilities on or adjacent to the campus where the students of that particular denomination could be expected to attend regular worship services and receive instructions in their particular faith.

5. Professors might also hold special services or classes of religious instruction in the rooms assigned to them at the university in order to accommodate the needs of the students belonging to their particular faith.

6. Students studying for the ministry at nearby seminaries should be allowed to have full access to the resources of the university library.

7. However, in spite of all of these efforts to encourage religion indirectly, there must be no use of tax funds to subsidize any religion directly.

Jefferson Sees Great Advantages in Following These Guidelines

By leaving it exclusively to the States to work out the equal encouragement of all religions, but at the same time give them no direct subsidy, Jefferson felt the goals of the Founders would be achieved. He felt their was a need to fill “the chasm” of religious ignorance which constituted a liability to society and at the same time leave “inviolate the constitutional freedom of religion, the most unalienable and sacred of all human rights.” (Randolph, editor, Early History of the University of Virginia, p. 475)

Jefferson, like other leaders among the Founders, seemed anxious to not only encourage all religious faiths on a basis of equality but also to have them develop a spirit of toleration for each other. In referring to the university campus and its immediate environs where all faiths would be invited to provide facilities, Jefferson wrote:

“... by bringing the sects together, and mixing them with the mass of other students, we shall soften their asperities, liberalize and neutralize their prejudices and make the general religion a religion of peace, reason and morality.” (Ford, editor, Works of Jefferson, Vol. 12, p. 272)

How the Courts Began Building a Wall Between Religion and the State

It is a well-known principle of substantive law that the Constitution and the law should be interpreted very strictly according to the original intent of those who created it. As Chief Justice Taney stated in the Dred Scott decision, “It (the Constitution) speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of the framers....” (19 Howard 395)

In the case of Barron v. Baltimore (7 Peters 243; 8 L. Ed. 672-1833) Chief Justice Marshall affirmed that the Bill of Rights in the Constitution was a series of prohibitions against the Federal government to prevent it from encroaching on the States. With reference to religion, this meant that there was a Federal “wail” between the Federal government and any “establishment of religion “just as Jefferson had said.

However, in 1925, in the case of Gitlow v. New York (268 U.S. 652) the Supreme Court undertook to use certain provisions in the Federal Bill of Rights and apply them to the States. The court justified this action on the basis of the Fourteenth Amendment which provides that “No State shall make or enforce any law which shall abridge the privileges or immunities 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 laws.”

The opponents of traditional theistic religion and morality saw the Gitlow case as an opportunity to invoke the power of the Federal courts to build a wall between each of the States and any form of religious encouragement even though it was provided indirectly. In other words, they would review the Founders’ original policy.

In 1940 the case of Cantwell v. Connecticut (310 U.S. 296) was the first ruling of the Supreme Court in which the “Gitlow doctrine” was applied to religious liberty and in 1947 Everson v. Board of Education (330 U.S. 1) was the first time the Supreme Court applied the “due process” clause of the Fourteenth Amendment to make the Federal wall of separation apply to religious matters among the individual States.

What this amounted to was the actual breaking down of the Federal wall set up by the First Amendment so that the Supreme Court actually usurped jurisdiction over religious matters in the States and began dictating what the States could or could not do with reference to religious questions. Without a doubt, there has been a severe wrenching of the Constitution from its original First Amendment moorings ever since this new trend began.

In 1948 the Supreme Court Prohibited Teaching of Religion in Schools

It is interesting that in the debates over ratification Madison had stated the position of the Founders when he said: “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.” (Elliot Debates, Vol. 3, p. 330)

Nevertheless, in 1948 in McCollum v. Board of Education (333 U.S. 203), the Supreme Court interviewed in a religious question, used the Gitlow doctrine to tell a State Board of Education that it would not allow children, even with their parents’ consent, to take religion classes in school. The students had been authorized by the Board of Education to sign up for these classes which were being taught by the representatives of their own particular faith and expected then to attend these classes as part of their regular studies just as Jefferson had recommended for the University of Virginia. The Court ignored the fact that there was equality of opportunity for any of the denominations to provide such classes and used the “wall” doctrine to outlaw use of tax-supported facilities for the teaching of religion by every denomination. There was a strong dissent by Justice Reed.

In 1952 the Supreme Court Approved “Released Time” for Religious Education

It is of further interest that in 1952 the Supreme Court took its newly acquired jurisdiction over religious questions in State schools to announce in Zorach v. Clauson (343 U.S. 306) that it was very solicitous of religion and would approve classes in religion during the regular school day providing the classes were held separate from any tax-supported property. Justice Douglas wrote the opinion from the following frame of reference:

“We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for a wide variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the seal of its adherents and the appeal of its dogma.”

Justice Douglas even went further to state; “... we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”

The Cultural Vacuum Created by the Court: So-called “Neutrality”

However, in the 1947 case of Everson v. Board of Education (330 U.S. 1) the Supreme Court made it clear that neither the Federal government nor a State government could encourage religion in any way. Justice Black spoke for the Court and declared in his opinion, “Neither a State nor the Federal government ... can pass laws which aid one religion, aid all religions, or prefer one religion over another.”

The Founders would have heartily endorsed Justice Black’s “no-preference” doctrine, but they would have no doubt objected vigorously to the outlawing of indirect aid for and encouragement to “all religions.” In the final analysis, it was “all religions” the Founders had said they were relying upon to undergird society with those moral teachings which are “necessary to good government and the happiness of mankind.” (Northwest Ordinance previously cited)

No doubt they would have further objected to the Court’s presumptive usurpation in taking jurisdiction over a religious question which had been specifically reserved by the First Amendment to the States themselves.

The Founders seemed fully aware that failure to encourage “all religions” in their important role of teaching fundamental morality would leave an empty void or cultural vacuum in their formula for a great new civilization of freedom and prosperity. It seems that all empirical evidence of history and human experience sustains their position. Then why did the Court take the position it did?

All of the cases from then until now suggest that the Court considered its position of “neutrality” more fair and more correct in administering true justice. What some legal scholars are beginning to point out however, is that the position of so-called neutrality has not achieved what the Court said it intended. It has indeed given “secularism” or the emphasis of non-spiritual and non-moral principles the clear advantage of a virtual monopoly in the arena of public education and the administering of public institutions.

In 1962 the Supreme Court Outlawed Prescribed Prayers in School

In the case of Engel v. Vitale (370 U.S. 429) the issue was over the fact that the New York regents had prepared a nondenominational prayer for use in the public schools. The New York Court of Appeals upheld the prayer, but the Supreme Court once more intermeddled in a religious question of a State by ruling that a nondenominational prayer prescribed by the officials of the State was “establishing” a religion.

However, contrary to popular belief, the Court did not say that prayers were unlawful which were voluntary and prescribed or set by the State. Nevertheless, this case gave the advocates of secularism an excuse to push through ruling in many States that prayer would not be allowed in the schools.

In 1963 the Supreme Court Outlawed the Lord’s Prayer and Bible Reading in the Public Schools

In School District of Abington v. Schempp (374 U.S. 203) the Supreme Court ruled that opening exercises at the high school involving the recitation of the Lord’s Prayer as well as reading Bible verses were unconstitutional. The Court rejected the proposition that the opening exercises had a secular purpose, namely, the “promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teachings of literature.”

It was pointed out to the Court that “unless these religious exercises are permitted, a ‘religion of secularism’ is established in the schools,” but the Court rejected this argument.

At this point it appears that for all intent and purpose the design of the Founding Fathers to have the public schools teach the fundamental principles of religion and morality was dead.

Need for an Amendment

It is doubtful that the desires of the vast majority of American parents as well as the intent of the Founding Fathers to have these ideals taught in the schools will ever be restored without a Constitutional amendment further defining the right of the States to have exclusive jurisdiction over the determination of questions involving religious questions. At the same time it would undoubtedly be the further desire of the overwhelming majority of Americans that the States be required to give equality of encouragement to religion on a non-preference basis.