Constitutional Provision by David Barton

Today, the ability to enjoy “the free exercise of religion” and to participate in traditional religious activities is completely subject to the discretion and “good will” of the Court rather than to any constitutional provision. The following cases will illustrate not only the Court’s reliance upon its own recent case-law, but also its avoidance of historical citations that would tend to establish original intent. Abington v. Schempp, 1963

In Abington, 2 the Court struck down the official use of the Bible in public education. Although the Court cited several pre-1947 cases in examining procedural questions, the count is still heavily skewed toward recent precedents. PRE-1947: 112; POST-1947: 356. Epperson v. Arkansas, 1968

This case 3 challenged an Arkansas statute which made it unlawful for schools to teach “that mankind ascended or descended from a lower order of animals.” 4 The U. S. Supreme Court ruled the statute violated the First Amendment. On what sources? PRE-1947: 6; POST-1947: 12.

However, the Arkansas law which the Court struck down in this case was identical to the one that the Tennessee Supreme Court had upheld in the 1927 Scopes decision. Since the U. S. Supreme Court was in effect overturning the Tennessee Supreme Court decision of forty-three years earlier, it had been forced to reexamine that 1925 case, thus injecting several pre-1947 allusions into its decision. When these references are added, the final tally becomes: PRE-1947: 23; POST-1947: 16. Board of Education of Central School District v. Allen, 1968 In this ruling, 6 the Supreme Court found that a New York law requiring public school authorities to lend textbooks to private schools and thus possibly to religious schools was not a violation of the Constitution. What was the basis of this decision? PRE-1947: 8; POST-1947: 27. Lemon v. Kurtzman, 1971

In this case, the Court struck down two State statutes: a Rhode Island law providing a salary supplement to nonpublic teachers if the “eligible teachers agree not to teach courses in religion,” and a Pennsylvania law which allowed the State to purchase “secular educational services” including textbooks and instructional materials from nonpublic schools if the materials contained no “religious teaching, or the morals or forms of worship of any sect.” Despite the attempt to limit the State aid to purely secular aspects of education, the Court struck down both laws under what is now called the “Lemon Test.” Under this test, a public religious activity is constitutional only if: 1 it has a predominately secular purpose; 2 it neither inhibits nor advances religion; and 3 it creates no “excessive entanglement” between government and religion.

Constitutionality of Legislation by David Barton

The Court’s decision in this case not only struck down a passive, non-coercive display, it also reflected the hostility which has become characteristic of the Court’s decisions on these issues. Wallace v. Jaffree, 1985

This case was the challenge of an Alabama law which authorized a one minute period of silence for students. When the case reached the federal court of appeals, although the court found that a one-minute period of silence for meditation was constitutional, it nevertheless struck down the law. The Supreme Court upheld that decision. Why? As the court of appeals had explained – and as the Supreme Court had repeated: It is not the activity itself that concerns us; it is the purpose of the activity that we shall scrutinize.

In seeking “the purpose of the activity,” the court had “discovered”: The “prime sponsor” of the bill explained that the bill was an “effort to return voluntary prayer to our public schools.” He intended to provide children the opportunity of sharing in their spiritual heritage of Alabama and of this country. Consequently, based on this “discovery,” the court struck down the voluntary silent activity and declared the statute invalid because the sole purpose was “an effort on the part of the State of Alabama to encourage a religious activity”. It is a law respecting the establishment of religion within the meaning of the First Amendment.

Chief Justice Warren Burger was much disturbed by the Supreme Court’s affirmation of this decision. For example, he was troubled by the judicial “discovery” which had resulted in the ruling:

Curiously, the opinions do not mention that all of the sponsor’s statements relied upon including the statement “inserted” into the Senate Journal were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the Apelles concedes there is not a shred of evidence that the legislature as a whole shared the sponsor’s motive or that a majority in either house was even aware of the sponsor’s view of the bill when it was passed. The sole relevance of the sponsor’s statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that post enactment statements by individual legislators are relevant in determining the constitutionality of legislation.

A Great Constitutional Principle by David Barton

Actually, so few agreed with the Court’s claims of “universally recognized” principles that the U. S. Congress even convened extensive hearings to deal with the widespread public outrage. 44 Nonetheless, in an attempt to purvey credibility, the Court invoked James Madison’s statement that:

Attempts to enforce acts obnoxious to so great a proportion of citizens tend to enervate weaken the laws in general and to slacken the bands of society. The Court equated school prayer to “acts obnoxious to so great proportions of citizens.” This, too, was a patent misrepresentation, evidenced by the fact that so many States permitted school prayers. In fact, the next year the Court weakened its own assertion when it acknowledged that: Only last year 1962 an official survey of the country indicated that less than 3% profess no religion whatever.

With such a strong religious adherence in this country, there simply was no factual basis for the Court’s assertion that the generic acknowledgment of God embodied in the Engel prayer was something obnoxious to the mass of citizens. In concluding its decision, the Engel Court claimed that to allow this voluntary prayer was to establish an “official state religion” a conclusion strongly objected to by Justice Stewart: With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an “official religion” is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. The Engel decision the second occasion in which the Supreme Court had struck down a voluntary student religious activity was based on a series of poorly grounded arguments punctuated by many erroneous and ill-advised statements.

The Founding Fathers by David Barton

Other Founders were involved in numerous similar organizations. The evidence is clear that not only can none of them be called an atheist; only the smallest handful would fit today’s definition of a deist. Nevertheless, despite this irrefutable evidence, the charge persists to the contrary as, for example, evidenced in an article in American Heritage by Gordon Wood. Wood amazingly asserted:

The Founding Fathers were at most deists and were a very thin veneer on their society. In a national article, Steven Morris similarly claimed:

The early presidents and patriots were generally deists or Unitarians, believing in some form of impersonal Providence but rejecting the divinity of Jesus and the relevance of the Bible. Wood, Morris, and all who make such broad charges are totally incorrect, deliberately ignoring all historical facts to the contrary. They also randomly, recklessly, and even unethically impute the term “deist” to Founders who would vehemently deny it if they were alive today. For example, some contemporary works incorrectly assert that Jefferson called himself a deist. Yet historical records are clear that not only did Jefferson not call himself a deist, he called himself a Christian:

I am a real Christian, that is to say, a disciple of the doctrines of Jesus. Although Jefferson did call himself a Christian, he would probably fail the standard by any orthodox definition, for he viewed Jesus only as a great teacher and not as Divine.

Nonetheless, the fact remains that Jefferson did not call himself a deist; he called himself a Christian. Even though a very few of the Founders did consider themselves deists for example, Franklin did call himself a “deist”, the definition of a deist in that day is totally different from today’s definition, evidenced by the fact that Franklin totally rejected the “clockmaker” concept and believed that prayer was worthwhile and that God did intervene in our daily affairs. The evidence is clear that atheism was rejected by the Founding Fathers and even the deism of that day was strongly frowned upon by most of them.