Jaffree v. Board of School Commissioners of Mobile County (1983)

(A Historical Discussion about Church and State in America)

[In this case, Chief Judge Brevard Hand, with the aid of historians, examined the historical background of the First and Fourteenth Amendments.  Because this case is reproduced in a slightly abridged form for the purpose of giving historical information about church and state in America, only the historical analysis portion of this case (excerpts from 554 F.Supp. 1104, 1106, 1113-1130, with some footnotes omitted) has been reproduced below.

    Incidentally, Jaffree quoted United States Supreme Court Justice Joseph Story (1779-1845), who was a famous jurist and author of Commentaries on the Constitution of the United States (1833), a very influential treatise on United States Constitutional Law.  Story, first a Jeffersonian Republican and then (following his appointment to the United States Supreme Court by United States President James Madison) a Federalist, was one of the United States' most influential Supreme Court justices, whose tenure on the U.S. Supreme Court spanned three decades, from 1811 to 1845.  At the beginning of the twentieth century, Story was elected to the Hall of Fame.  His views on the United States Constitution are still widely respected.

    Justice Joseph Story said this about the First Amendment Establishment Clause: "'[T]he real object of the [F]irst amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government.'"  554 F.Supp. at 1113-1114.

    Story also said: "'Probably at the time of the adoption of the [first] amendment now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship.'"  Id. at 1124.

    Justice Joseph Story's first wife, Mary Lynde Fitch Oliver (1781-1805), whom he married on December 9, 1804, was a descendant of Governor Jonathan Belcher's sister Elizabeth Belcher Oliver (1678-1736). 

    For further information about Governor Jonathan Belcher (1682-1757), see: Governor Jonathan Belcher, Jonathan Belcher: Christian Governor, The First Biography of Jonathan Belcher, and his proclamations and other items about him listed on the About Jonathan Belcher webpage

    Another American founding father whose house was just across the street from his in Elizabethtown, New Jersey, was Elias Boudinot (he and Madison were both discussed in Justice Rehnquist's Dissent in Wallace v. Jaffree (1985)

    On the topic of Thanksgiving proclamations, including Governor Belcher's own, see the Belcher Foundation article "November Thanksgiving Thursday": Origins of Fourth Thursday of November as Thanksgiving Day

   For further reading about America's Christian Heritage:

    Ezra Stiles, The United States Elevated to Glory and Honor (1783) (further shows the real feelings of the founders regarding Christianity).

    Jaffree's note 41 discusses secular humanism.   For a discussion of secular humanism's origins, see the discussion on deism in Jesus Is the Light of the World, a Good Cheer Chronicles essay.  See also Ezra Stiles, The United States Elevated to Glory and Honor (last pages contain a discussion of deism v. Christianity in the context of Early American history).

    Also informative:

    Justice Rehnquist's Dissent in Wallace v. Jaffree (1985)

    Smith v. Board of School Commissioners of Mobile County (1987)

    Programming the Judicial Machines

    Don't Hide God in a Closet

    Pretexts and Commandments

    Prayer or Patriotism

554 F.Supp. 1104 (S.D. Ala. 1983)





Civ. A. No. 82-0554-H.

United States District Court,

S.D. Alabama, S.D.

Jan. 14, 1983.

[* * * * *]


    HAND, Chief Judge.


If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates.   But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.  The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

        Farewell Address by

        George Washington

        reprinted in R. Berger,

        Government by Judiciary 299 (1977).

[* * * * *]

C.    First Amendment as Forbidding Absolute Separation (5)

    "'[T]he real object of the [F]irst amendment was not to countenance, much less to advance Mohammedanism, or Judaism, or infidelity, by prostrating Christianity, but to exclude all rivalry among Christian sects and to prevent any national ecclesiastical establishment which would give to an hierarchy the exclusive patronage of the national government.'" (6)  The establishment clause was intended to apply only to the federal government.  Indeed when the Constitution was being framed in Philadelphia in 1787 many thought a bill of rights was unnecessary.  It was recognized by all that the federal government was the government of enumerated rights.  Rights not specifically delegated to the federal government were assumed by all to be reserved to the states.  Anti-Federalists, however, insisted upon a Bill of Rights as additional protection against federal encroachment upon the rights of the states and individual liberties.  Excerpted testimony of James McClellan at 5--6 (trial testimony).

    The federalists, who were the proponents of the Constitution, acceded to the demand of the Anti-Federalists for a Bill of Rights since, in the opinion of all, nothing in the Bill of Rights changed the terms of the original understanding of the federal convention.  It was thought by all that the Bill of Rights simply made express what was already understood by the convention: namely, the federal government was a government of limited authority and that authority did not include matters of civil liberty such as freedom of speech, freedom of the press, and freedom of religion.  Id. at 8--13.

    The prohibition in the first amendment against the establishment of religion gave the states, by implication, full authority to determine church-state relations within their respective jurisdictions.  "Thus the establishment clause actually had a dual purpose:  to guarantee to each individual that Congress would not impose a national religion, and to each state that it was free to define the meaning of religious establishment under its own state constitution and laws.  The federal government, in other words, simply had no authority over the states respecting the matter of church-state relations." (7)

    At the beginning of the Revolution established churches existed in nine of the colonies.  Maryland, Virginia, North Carolina, South Carolina, and Georgia all shared Anglicanism as the established religion common to those colonies.   See McClellan, supra note 6, at 300.  Congregationalism was the established religion in Massachusetts, New Hampshire, and Connecticut.  New York, on the other hand, allowed for the establishment of Protestant religions. (8)  Three basic patterns of church-state relations dominated in the late eighteenth century.   In most of New England there was the quasi-establishment of a specific Protestant sect.  Only in Rhode Island and Virginia were all religious sects disestablished.   "But all of the states still retained the Christian religion as the foundation stone of their social, civil and political institutions.  Not even Rhode Island and Virginia renounced Christianity, and both states continued to respect and acknowledge the Christian religion in their system of laws." (9)  At the time the Constitution was adopted ten of the fourteen states refused to prefer one Protestant sect over another.   Nonetheless, these states placed Protestants in a preferred status over Catholics, Jews, and Dissenters. (10)

    The pattern of church-state relations in new states entering the Union after 1789 did not differ substantially from that in the original fourteen.   By 1860--and the situation did not radically change for the next three quarters of a century--the quasi-establishment of a specific Protestant sect had everywhere been rejected; quasi-establishment of the Protestant religion was abandoned in most but not all of the states; and the quasi-establishment of the Christian religion still remained in some areas.  A new pattern of church-state relations, the multiple or quasi-establishment of all religions in general, i.e., giving all religious sects a preferred status over disbelievers (the No Preference Doctrine) became widespread throughout most of the Union.  Thus at the turn of the century, for example, no person who denied the existence of God could hold office in such states as Arkansas, Mississippi, Texas, North Carolina, or South Carolina. (11)

    The first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791.  Excerpted testimony of James McClellan at 13 (from trial).

D.    Washington, Madison, Adams, and Jefferson

   The drafters of the first amendment understood the first amendment to prohibit the federal government only from establishing a national religion.   Anything short of the outright establishment of a national religion was not seen as violative of the first amendment.  For example, the federal government was free to promote various Christian religions and expend monies in an effort to see that those religions flourished.  This was not seen as violating the establishment clause.   R. Cord, Separation of Church and State 15 (1982).

    The intent of the framers of the first amendment can be understood by examining the legislative proposals offered contemporaneously with the debate and adoption of the first amendment.  For instance, one of the earliest acts of the first House of Representatives was to elect a chaplain.  James Madison was a member of the congressional committee who recommended the chaplain system.  On May 1, 1789 the House elected as chaplain, the Reverend William Linn.  $500.00 was appropriated from the federal treasury to pay his salary.  Even though the first amendment did not become part of the Constitution until 1791, had James Madison believed in the absolute separation of Church and State as some historians have attributed to him, James Madison would certainly have objected on this principle alone to the election of a chaplain. (12)  At the Constitutional Convention on June 28, 1787 Dr. Benjamin Franklin suggested that a morning prayer might speed progress during the debates.   Franklin told the Convention and its President, George Washington, that he had lived a long time.  The longer he lived the more persuaded he was "that God Governs in the affairs of men." (13)  Franklin "therefore beg[ged] leave to move--that henceforth prayers imploring the assistance of Heaven, and its blessings on our deliberations, be held in this Assembly every morning before we proceed to business, and that one or more of the clergy of this City be requested to officiate in that Service--" (14)  Franklin's motion was not adopted for political reasons.   Alexander Hamilton and others thought that the motion might have been proper at the beginning of the convention but that if the motion were adopted during the convention the public might believe that the convention was near failure.  For this reason, which was wholly political, the issue was resolved by adjournment without any vote being taken. (15)

    Presidential proclamations, endorsed by Congressman James Madison when Washington was President, dealing with Thanksgiving, fasting, and prayer are all important in understanding Madison's views on the proper role between church and state. (16)  Congress proposed a joint resolution on September 24, 1789, which was intended to allow the people of the United States an opportunity to thank Almighty God for the many blessings which he had poured down upon them.  The resolution requested that President George Washington recommend to the citizens of the United States a day of public thanksgiving and prayer.  Congress intended that the people should thank Almighty God for affording them an opportunity to establish this country. (17)  This proclamation was submitted to the President the very day after Congress had voted to recommend to the states the final text of what was to become the first amendment to the United States Constitution. [* * *]  As President, Madison issued four prayer proclamations.   Excerpted testimony of James McClellan at 19.

    Thomas Jefferson is often cited along with James Madison as a person who was absolutely committed to the separation of church and state.  The historical record, however, does not bear out this conclusion.

    While Jefferson undoubtedly believed that the church and the state should be separate, his actions in public life demonstrate that he did not espouse the absolute separation evidenced in the modern decisions by the United States Supreme Court.  For example, on October 31, 1803, President Jefferson proposed to the United States Senate a treaty with the Kaskaskia Indians which provided that federal money was to be used to support a Catholic priest and to build a church for the ministry of the Kaskaskia Indians.  The treaty was ratified on December 23, 1803.  As Professor Cord points out in his book, (19) President Jefferson could have avoided the explicit appropriation of funds to support a Catholic priest and a Catholic church by simply leaving a lump sum in the Kaskaskia treaty which could have been used for that purpose.   However, President Jefferson was not at all reluctant--for ought that appears on the historical record--to specifically appropriate money for a Catholic mission.

    Unlike Presidents Washington, Madison, and Adams, when Jefferson was President he broke with the tradition of issuing executive religious proclamations.  In Jefferson's view the establishment clause and the federal division of power between the national government and the states foreclosed executive religious proclamations.  While refusing to issue executive religious proclamations, President Jefferson recognized that "no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government.  It must then rest with the States, as far as it can be in any human authority." (20)   Thus, of the first four Presidents, all of whom were close to the adoption of the Federal Constitution and the first amendment, only President Jefferson did not issue executive religious proclamations, and only President Jefferson thought that executive religious proclamations were not constitutional.

    But even President Jefferson signed into law bills which provided federal funds for the propagation of the gospel among the Indians. (21)   Based upon the historical record Professor Cord concludes that Jefferson, even as President, did not interpret the establishment clause to require complete independence from religion in government.

    In sum, while both Madison and Jefferson led the fight in Virginia for the separation of church and state, both believed that the first amendment only forbade the establishment of a state religion by the national government.   "Jefferson was neither at the Constitutional Convention nor in the House of Representatives that framed the First Amendment.  The two Presidents who were at the Convention, Washington and Madison, and the President who framed the initial draft of the First Amendment in the House of Representatives, James Madison, issued Thanksgiving Proclamations." (22)  The Court agrees with the studied conclusions of Dr. Cord that "it should be clear that the traditional interpretation of Madison and Jefferson is historically faulty if not virtually unfounded ...." (23)

    One thing which becomes abundantly clear after reviewing the historical record is that the founding fathers of this country and the framers of what became the first amendment never intended the establishment clause to erect an absolute wall of separation between the federal government and religion.  Through the chaplain system, the money appropriated for the education of Indians, and the Thanksgiving proclamations, the federal government participated in secular Christian activities.   From the beginning of our country, the high and impregnable wall which Mr. Justice Black referred to in Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 513, 91 L.Ed. 711 (1947), was not as high and impregnable as Justice Black's revisionary literary flourish would lead one to believe.

    Yet, despite all of this historical evidence, only last month the Supreme Court wrote that the purpose of the first amendment is

twofold: to foreclose state interference with the practice of religious faiths, and to foreclose the establishment of a state religion familiar in other Eighteenth Century systems.  Religion and government, each insulated from the other, could then coexist.  Jefferson's idea of a "wall," see Reynolds v. United States, 98 U.S. (8 Otto) 145, 164 [25 L.Ed. 244] (1878), quoting Reply from Thomas Jefferson to an address by a committee of the Danbury Baptist Association (January 1, 1802), reprinted in 8 Works of Thomas Jefferson 113 (Washington ed. 1861), was a useful figurative illustration to emphasize the concept of separateness.  Some limited and incidental entanglement between church and state authority is inevitable in a complex modern society, see, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614 [91 S.Ct. 2105, 2112, 29 L.Ed.2d 745] (1971); Walz v. Tax Commission, 397 U.S. 664, 670 [90 S.Ct. 1409, 1412, 25 L.Ed.2d 697] (1970), but the concept of a "wall" of separation is a signpost.

Larkin v. Grendel's Den, Inc., ____ U.S. ____, ____, 103 S.Ct. 505, 510, 74 L.Ed.2d 297 (1982) (emphasis added).  Enough is enough.  Figurative illustrations should not serve as a basis for deciding constitutional issues.

    For this Court, Professor Robert Cord, see supra note 5, irrefutably establishes that Thomas Jefferson's address to the Danbury Baptist Association cannot be relied upon to support the conclusion that Jefferson believed in a wall between church and state.  "By this phrase Jefferson could only have meant that the 'wall of separation' was erected 'between Church and State' in regard to possible federal action such as a law establishing a national religion or prohibiting the free exercise of worship."  Id. at 115.  Overall the conduct of Thomas Jefferson was consistent with the conclusion that he believed, like all the other drafters of the Constitution and the Bill of Rights, that the states were free to establish religions as they saw fit. [* * *]

E.    First Amendment as Applied to the States

   As has been seen up to this point the establishment clause, as ratified in 1791, was intended only to prohibit the federal government from establishing a national religion.  The function of the establishment clause was two-fold.  First, it guaranteed to each individual that Congress would not impose a national religion.  Second, the establishment clause guaranteed to each state that the states were free to define the meaning of religious establishment under their own constitutions and laws.

    The historical record clearly establishes that when the fourteenth amendment was ratified in 1868 that its ratification did not incorporate the first amendment against the states.  The debates in Congress at the time the fourteenth amendment was being drafted, the re-election speeches of the various members of Congress shortly after the passage by Congress of the fourteenth amendment, the contemporaneous newspaper stories reporting the effect and substance of the fourteenth amendment, and the legislative debates in the various state legislatures when they considered ratification of the fourteenth amendment indicate that the amendment was not intended to apply the establishment clause against the states because the fourteenth amendment was not intended to incorporate the federal Bill of Rights (the first eight amendments) against the states.

    At the beginning the Court should acknowledge its indebtedness to Professor Charles Fairman, then a professor of law in Political Science at Stanford University, for the scholarly article which he published in 1949. (25)  Professor Fairman examined in detail the historical evidence which Mr. Justice Black relied upon in Adamson v. California, 332 U.S. 46, 47, 67 S.Ct. 1672, 1673, 91 L.Ed. 1903 (1947), where Mr. Justice Black concluded that the historical events that culminated in the adoption of the fourteenth amendment demonstrated persuasively that one of the chief objects of the fourteenth amendment was to make the Bill of Rights applicable to the states. [* * *]

    1.    Debates

   The paramount consideration in defining the scope of any constitutional provision or legislative enactment is to ascertain the intent of the legislature.  The intention of the legislature may be evidenced by statements of the leading proponents. (27)  If statements of the leading proponents are found, those statements are to be regarded as good as if they were written into the enactment.   "The intention of the lawmaker is the law."  Hawaii v. Mankichi, 190 U.S. 197, 212, 23 S.Ct. 787, 788, 47 L.Ed. 1016 (1903).

    Looking back, what evidence [i]s there ... to sustain the view that Section 1 was intended to incorporate Amendments I to VIII?  [C]ongressman Bingham .... did a good deal of talking about "immortal bill of rights" and one spoke of "cruel and unusual punishments."  Senator Howard, explaining the new privileges and immunities clause, said that it included the privileges and immunities of Article IV, Section 2--"whatever they may be"--and also "the personal rights guarantied [sic] and secured by the first eight amendments ...."   That is all.  The rest of the evidence bore in the opposite direction, or was indifferent.  Yet one reads in Justice Black's footnotes that, [Adamson v. California, 332 U.S. 46, 72 n. 5 [67 S.Ct. 1672, 1686 n. 5, 91 L.Ed. 1903 (1947)],

    A comprehensive analysis of the historical origins of the Fourteenth Amendment, Flack, The Adoption of the Fourteenth Amendment (1908), 94, concludes that "Congress, the House and the Senate, had the following objects and motives in view for submitting the first section of the Fourteenth Amendment to the States for ratification:

1.    To make the Bill of Rights (the first eight Amendments) binding upon, or applicable to, the States.

2.    To give validity to the Civil Rights Bill.

3.    To declare who were citizens of the United States.

    We have been examining the same materials as did Flack, and have quoted far more extensively than he.  How can he on that record reach the conclusion that Congress proposed by Section 1 to incorporate Amendments I to VIII?

Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights, 2 Stan. L. Rev. at 65-66 (1949).  Professor Flack explained that the incorporation was based upon remarks of Congressman Bingham and Senator Howard at the time the Thirty-ninth Congress voted upon the fourteenth amendment.  Only those two said anything which could be construed as suggesting the result reached by Justice Black and the modern Supreme Court decisions.

    Throughout the debates in the House over the meaning of the fourteenth amendment Professor Fairman shows convincingly that Congressman Bingham had no clear concept of what exactly would be accomplished by the passage of the fourteenth amendment.  The explanations offered by Congressman Bingham to his colleagues were inconsistent and contradictory. (28)

    Together with Congressman Bingham's statements which suggested incorporation were remarks by Senator Howard.  Senator Howard spoke with more preciseness than Congressman Bingham.  Thus, his interpretation carries much greater weight than that of Congressman Bingham.  Yet, because of the circumstances under which he spoke, his statements are subject to question when held out as representative of the majority viewpoint.  By sheer chance Senator Howard acted as spokesman for the joint committee when explaining the purpose of the fourteenth amendment to the Senate.   The joint committee had been chaired by Senator Fessenden.  Chairman Fessenden became sick suddenly and Senator Howard thus became the spokesman for the Joint Committee.    

[* * *]

    On May 23, 1866, Senator Howard rose in the Senate, referred to the illness of Fessenden, and stated that he would "present 'the views and the motives which influenced the committee, so far as I understand [them].'  After reading the privileges and immunities listed in Corfield v. Coryell, [6 Fed. Cas. 546, No. 3230 (C.C. E.D. Pa. 1823),] he said, 'to these privileges and immunities ... should be added the personal rights guaranteed and secured by the first eight amendments.'   That is the sum and substance of Howard's contribution to the 'incorporation' issue." (30)

    Raoul Berger notes in his analysis of the incorporation question that the remark of Senator Howard was tucked away in the middle of a long speech, that Howard was a last minute substitution for the majority chairman, that Howard was in the minority on the committee, and that after Howard was through speaking Senator Poland stated that the fourteenth amendment secured nothing beyond what was intended in the original privileges and immunities clause of Article IV Section 2.  R. Berger, [***] [Government by Judiciary], 148-49.  Senator Doolittle followed Senator Poland with some additional remarks which were designed to reassure those whose votes had already been won in favor of passage of the fourteenth amendment that indeed the amendment was limited to known objectives, which objectives were not intended to encompass the federal Bill of Rights.

    The scholarly analyses of Professors Fairman and Berger persuasively show that Mr. Justice Black misread the congressional debate surrounding the passage of the fourteenth amendment when he concluded that Congress intended to incorporate the federal Bill of Rights against the states.  See infra p. 42-44 (discussion of Blaine Amendment).  So far as Congress was concerned, after the passage of the fourteenth amendment the states were free to establish one Christian religion over another in the exercise of their prerogative to control the establishment of religions.

    2.    Popular Understanding

   An examination of popular sentiment across the country reveals that the nation as a whole did not understand the adoption of the fourteenth amendment to incorporate the federal Bill of Rights against the states.   Inferentially, that is to say that the people understood that each state was free to continue to support one Christian religion over another as the people of that state saw fit to do.  The leading constitutional scholar upon whom Justice Black relied in Adamson v. California,

Mr. Flack[,] examined a considerable number of Northern newspapers and reported (an admission against the thesis he was defending) the following observation: "There does not seem to have been any statement at all as to whether the first eight Amendments were to be made applicable to the States or not ...."  Presumably this excluded the press reports of May 24 on Senator Howard's speech of the 23d: for the New York Herald and the New York Times, which Mr. Flack had before him, did quote in full the passage where it said that the personal rights guaranteed by the first eight amendments were among the "privileges and immunities."

    Other newspaper files have been examined in preparing the [article of Professor Fairman] and no instance has been found to vary what has been set out above.

Fairman, supra note 25, at 68 (footnotes omitted). [* * *]

    Charles Fairman quotes at length from the campaign speeches of five senators who, presumably, heard Senator Howard's speech of May 23, 1866.  Not one of the senators mentioned anything about the Bill of Rights when commenting to the electorate about Section 1.  Likewise, the five Republicans, including Congressman Bingham, never mentioned that the privileges and immunities clause would impose the federal Bill of Rights upon the states.  Along with Professor Fairman, the Court takes the historical record to conclusively show that the general understanding of the nation at large, as illustrated by contemporaneous newspaper reports, demonstrates that the people of this country did not understand the fourteenth amendment to incorporate the establishment clause of the first amendment against the states.

    3.    Campaign Speeches

   After the submission of the fourteenth amendment to the states on June 16, 1866 the members of the Thirty-ninth Congress began to busy themselves with the prospect of re-election in the fall.  The statements which the members of Congress made during their campaign speeches are certainly relevant in ascertaining the intent of the Thirty-ninth Congress with regard to the scope and effect of the fourteenth amendment.  All of these speeches were contemporaneous expressions of the intent of Congress.  Professor Fairman provides many instances of speeches made on the campaign hustings.  See generally, Fairman, supra note 25, at 68-78.   None of the members of Congress indicated in their campaign speeches that the fourteenth amendment was intended to incorporate the federal Bill of Rights against the states.  The general consensus with regard to the effect of the fourteenth amendment was that it covered the same ground as the Civil Rights Act of 1866.  Id. at 72 (remarks of Senator Lyman Trumbull, the sponsor of the Civil Rights Bill).

    4.    State-Legislative Debates

   The fourteenth amendment was submitted to the states for their ratification on June 16, 1866.  By June, 1867, twelve legislatures had ratified the amendment.  By July 28, 1868 the fourteenth amendment had been promulgated.

    Professor Fairman combed the relevant legislative materials to see exactly what each state legislature thought the effect of the fourteenth amendment would be. 

[* * *]

    The Court will not repeat Professor Fairman's analysis in each state.  Only a few states need to be highlighted to convey the popular understanding of the effect of the fourteenth amendment upon the right of states to establish a religion.  In New Hampshire, only five months after the promulgation of the fourteenth amendment--in December, 1868--the Supreme Court of New Hampshire had occasion to interpret a provision of the state constitution which provided that the legislature could "authorize towns, parishes, and religious societies 'to make adequate provision ... for the support and maintenance of public Protestant teachers of piety, religion, and morality.'" (32)  Moreover, Article VI of the Bill of Rights from the New Hampshire Constitution encouraged "the public worship of the deity ...."   The question before the Supreme Court of New Hampshire was whether certain parishioners of the First Unitarian Society of Christians in Dover could fire the preacher.  The preacher had begun using text from Emerson interchangably with text from the Bible.  While Wardens of the church supported the preacher, certain pew owners were outraged.  The pew owners sought an injunction restraining the preacher from occupying the meeting house.  The trial court granted relief.

    On appeal, in a 276-page report neither the opinion of the court nor the dissent made a single reference to the fourteenth amendment.  Both opinions, however, had much to say about New Hampshire's policy in ecclesiastical matters.   The opinion of the court referred to the first amendment and quoted Story's Commentaries:

[T]he whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions ....

    Probably at the time of the adoption of the amendment now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as not incompatible with the private rights of conscience and the freedom of religious worship.

Fairman, supra note 25, 87 (citations omitted).

    As Professor Fairman notes: "[I]n December 1868--five months after the promulgation of the Fourteenth Amendment--the New Hampshire court regarded the matter of an establishment of religion as being still 'left exclusively to the State governments.'"  Id.

   The historical record shows without equivocation that none of the states envisioned the fourteenth amendment as applying the federal Bill of Rights against them through the fourteenth amendment.  It is sufficient for purposes of this case for the Court to recognize, and the Court does so recognize, that the fourteenth amendment did not incorporate the establishment clause of the first amendment against the states. (33)

[* * *]

F.    Blaine Amendment

   The discussion up to this point has focused upon the incorporation of the federal Bill of Rights generally through the fourteenth amendment.   Events which postdated the adoption of the fourteenth amendment show that the lawmakers of the Thirty-ninth Congress did not intend that the establishment clause would become binding upon the states with the ratification of the fourteenth amendment.   "'[A] conclusive argument against the incorporation theory, at least as respects the religious provisions of the First Amendment, is the "Blaine Amendment" proposed in 1875.'"  McClellan, Christianity and the Common Law, in Joseph Story and the American Constitution 118, 154 (1971) (quoting O'Brien, Justice Reed and the First Amendment, 116 (n.d.)).  At the behest of President Grant, James Blaine of Maine introduced a resolution in the Senate in 1885 which read: "No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof."  Id. at 154.  (emphasis in original).   Importantly, the Congress which considered the Blaine Amendment included twenty-three members of the Thirty-ninth Congress, the Congress which passed the fourteenth amendment.

Not one of the several Representatives and Senators who spoke on the proposal even suggested that its provisions were implicit in the amendment ratified just seven years earlier.  Congressman Banks, a member of the Thirty-ninth Congress, observed: "If the Constitution is amended so as to secure the object embraced in the principle part of this proposed amendment, it prohibits the States from exercising a power they now exercise."  Senator Frelinghuysen of New Jersey urged the passage of the "House article," which "prohibits the States for the first time, from the establishment of religion, from prohibiting its free exercise."  Senator Stevenson, in opposing the proposed amendment, referred to Thomas Jefferson: "Friend as he [Jefferson] was of religious freedom, he would never have consented that the States ... should be degraded and that the Government of the United States, a government of limited authority, a mere agent of the States with prescribed powers, should undertake to take possession of their schools and of their religion."   Remarks of Randolph, Christiancy, Kernan, Whyte, Bogy, Easton, and Morton give confirmation to the belief that none of the legislators in 1875 thought the Fourteenth Amendment incorporated the religious provisions of the First.

Id. (quoting O'Brien, Justice Reed and the First Amendment 116-17 (emphasis added)).

    The Blaine Amendment, which failed in passage, is stark testimony to the fact that the adoptors of the fourteenth amendment never intended to incorporate the establishment clause of the first amendment against the states, a fact which Black ignored.  This was understoodd by nearly all involved with the Thirty-ninth Congress to be the effect of the fourteenth amendment.

G.    Proper Interpretative Perspective

   The interpretation of the Constitution can be approached from two vantages.  First, the Court can attempt to ascertain the intent of the adoptors, and after ascertaining that attempt apply the Constitution as the adoptors intended it to be applied.  Second, the Court can treat the Constitution as a living document, chameleon-like in its complexion, which changes to suit the needs of the times and the whims of the interpreters.  In the opinion of this Court, the only proper approach is to interpret the Constitution as its drafters and adoptors intended.  The Constitution is, after all, the supreme law of the land.  It contains provisions for amending it; if the country as a whole decided that the present text of the Constitution no longer satisfied contemporary needs then the only constitutional course is to amend the Constitution by following its formal, mandated procedures.  Amendment through judicial fiat is both unconstitutional and illegal.  Amendment through judicial fiat breeds disrespect for the law, and it undermines the very basic notion that this country is governed by laws and not by men.  See generally Breast, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204 (1980) (discussing various approaches to constitutional interpretation).

    Let us have faith in the rightness of our charter and the patience to persevere in adhering to its principles.  If we do so then all will have input into change and not just a few.

H.    Stare Decisis

    What is a court to do when faced with a direct challenge to settled precedent? (37) 

[* * *]

    Certainty in the law is important.  Yet, a rigid adherence to stare decisis "would leave the resolution of every issue in constitutional law permanently at the mercy of the first Court to face the issue, without regard to the possibility that the relevant case was poorly prepared or that the judgment of the Court was simply ill-considered.  The danger is particularly great where the court has moved too far in an activist direction; in such a situation, legislative correction of the error is liable to be virtually impossible."  Maltz, Commentary: Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 476, 492 (1980).

[T]he "wall of separation between Church and State" that Mr. Jefferson built at the University [of Virginia] which he founded did not exclude religious education from the school.  The difference between the generality of his statements on the separation of Church and State and the specificity of his conclusions on education are considerable.  A rule of law should not be drawn from a figure of speech.

McCollum v. Board of Education, 333 U.S. 203, 247, 68 S.Ct. 461, 482, 92 L.Ed. 649 (1948) (per Reed, J., dissenting).

    "[T]he ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it."  Graves v. O'Keefe, 306 U.S. 466, 491-92, 59 S.Ct. 595, 603-04, 83 L.Ed. 927 (1939) (Frankfurter, J., concurring).  "By placing a premium on 'recent cases' rather than the language of the Constitution, the Court makes it dangerously simple for future Courts using the technique of interpretation to operate as a 'continuing Constitutional Convention.''"   Coleman v. Alabama, 399 U.S. 1, 22-23, 90 S.Ct. 1999, 2010-11, 26 L.Ed.2d 387 (1970) (Burger, C.J.).  "Too much discussion of constitutional law is centered on the Court's decisions, with not enough regard for the text and history of the Constitution itself."  R. Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment 296 (1977). [* * *]

    This Court's review of the relevant legislative history surrounding the adoption of both the first amendment and of the fourteenth amendment, together with the plain language of those amendments, leaves no doubt that those amendments were not intended to forbid religious prayers in the schools which the states and their political subdivisions mandate.

I.    Summary

   "Th[e] mountain of evidence has become so high, one may have lost sight of the few stones and pebbles that made up the theory that the Fourteenth Amendment incorporated Amendments I to VIII."  Fairman, supra note 25, at 134.  Suffice it to say that the few stones and pebbles provide precious little historical support for the view that the states were prohibited by the establishment clause of the first amendment from establishing a religion. (40)

    More than any other provision of the Constitution, the interpretation by the United States Supreme Court of the establishment clause has been steeped in history.  This Court's independent review of the relevant historical documents and its reading of the scholarly analysis convinces it that the United States Supreme Court has erred in its reading of history.  Perhaps this opinion will be no more than a voice crying in the wilderness and this attempt to right that which this Court is persuaded is a misreading of history will come to nothing more than blowing in the hurricane, but be that as it may, this Court is persuaded as was Hamilton that "[e]very breach of the fundamental laws, though dictated by necessity impairs the sacred reverence which ought to be maintained in the breast of the rulers towards the constitution."  R. Berger, supra note 26, at 299 (quoting Federalist No. 25 at 158).

    Because the establishment clause of the first amendment to the United States Constitution does not prohibit the state from establishing a religion, the prayers offered by the teachers in this case are not unconstitutional.  Therefore, the Court holds that the complaint fails to state a claim for which relief could be granted.

J.    Conclusion

   There are pebbles on the beach of history from which scholars and judges might attempt to support the conclusions that they are wont to reach.   That is what Professors Flack, Crosskey and the more modern scholars have done in attempting to establish a beachhead, as did Justice Black, that there is a basis for their conclusions that Congress and the people intended to alter the direction of the country by incorporating the first eight amendments to the Constitution.  However, in arriving at this conclusion, they, and each of them, have had to revise established principles of constitutional interpretation by the judiciary.  Whether the judiciary, inadvertently or eagerly, walked into this trap is not for discussion.  The result is that the judiciary has, in fact, amended the Constitution to the consternation of the republic.   As Washington pointed out in his Farewell Address, see p. i supra, this clearly is the avenue by which our government, can and ultimately, will be destroyed.   We think we move in the right direction today, but in so doing we are denying to the people their right to express themselves.  It is not what we, the judiciary want, it is what the people want translated into law pursuant to the plan established in the Constitution as the framers intended.  This is the bedrock and genius of our republic.  The mantle of office gives us no power to fix the moral direction that this nation will take.  When we undertake such course we trample upon the law.   In such instances the people have a right to complain.  The Court loses its respect and our institution is brought low.  This misdirection should be cured now before it is too late.  We must give no future generation an excuse to use this same tactic to further their ends which they think proper under the then political climate as for instance did Adolph Hitler when he used the court system to further his goals.

    What is past is prologue.  The framers of our Constitution, fresh with recent history's teachings, knew full well the propriety of their decision to leave to the peoples of the several states the determination of matters religious.  The wisdom of this decision becomes increasingly apparent as the courts wind their way through the maze they have created for themselves by amending the Constitution by judicial fiat to make the first amendment applicable to the states.   Consistency no longer exists.  Where you cannot recite the Lord's Prayer, you may sing his praises in God Bless America.  Where you cannot post the Ten Commandments on the wall for those to read if they do choose, you can require the Pledge of Allegiance.  Where you cannot acknowledge the authority of the Almighty in the Regent's prayer, you can acknowledge the existence of the Almighty in singing the verses of America and Battle Hymn of the Republic.  It is no wonder that the people perceive that justice is myoptic, obtuse, and janus-like.

    If the appellate courts disagree with this Court in its examination of history and conclusion of constitutional interpretation thereof, then this Court will look again at the record in this case and reach conclusions which it is not now forced to reach. (41)

III.    Order

   It is therefore ordered that the complaint in this case be dismissed with prejudice.

[* * * * *]


[* * * * *]

5.    At the start the Court should acknowledge its indebtedness to several constitutional scholars.  If this opinion will accomplish its intent, which is to take us back to our original historical roots, then much of the credit for the vision lies with Professor James McClellan and Professor Robert L. Cord.  Their work and the historical sources cited in their work have proven invaluable to the Court in this opinion.  See R. Cord, Separation of Church and State: Historical Fact and Current Fiction (1982); P. McGuigan & R. Rader, A Blueprint for Judicial Reform (eds. n.d.); J. McClellan, Joseph Story and the American Constitution, 118-159 (1971) (Christianity and the Common Law).

6.    McClellan, The Making and the Unmaking of the Establishment Clause, in Blueprint for a Judicial Reform 295 (P. McGuigan & R. Rader eds. n.d.) (quoting J. Story, III, Commentaries on the Constitution [section] 1871 (1833) (emphasis added)).

7.    Id.

8.    Id. at 300.  Professor McClellan documents in great detail the political struggle which raged through the various colonies during the Revolution and afterwards to disestablish certain religions throughout the colonies.   The establishment of one religion over another in the respective colonies was purely a political matter.  The political strength of the various followers determined which religion was established.  Like any other political decision, when the political strength of the minorities reached that of the majority, the state disestablished what had formerly been the majority religion.  See e.g., id. at 301-308.

9.    Id. at 307.

10.    Id.

11.    Id. at 311.  Professor McClellan cites numerous examples in which the states required adherence to a Christian religion.   For instance, witnesses were considered competent to testify only if they affirmed a belief in the existence of a Christian God.  Id.

12.    R. Cord, supra note 5, at 23.

13.    R. Cord, supra note 5, at 24 (quoting Debates in the Federal Convention of 1787 as reported by James Madison, Documents Illustrative of the Formation of the Union of the American States (Washington, D.C.: Government Printing Office, (1927) 295-96 (emphasis in original)).

14.    Id. at 24-25.

15.    Id.

16.    The views of James Madison are often cited by those who insist upon absolute separation between church and state.  Madison was one of the drafters of the first amendment.  An uncritical, cursory examination of some of Madison's writings would lead one to the conclusion that Madison favored absolute separation between church and state.  However, to reach this conclusion is to misunderstand the views of Mr. Madison.

    As Professor Cord explains in his book, Madison was concerned only that the federal government should not establish a national religion.   Nondiscriminatory aid to religion and support for various Christian religions was not viewed by Madison as unlawful.  See R. Cord, supra note 5, at 25-26 (examining drafts of the establishment clause submitted by Madison).

17.    Professor Cord explains in great detail the circumstances surrounding this presidential proclamation.  See R. Cord, supra note 5, at 27-29.

[* * * * *]

19.    R. Cord, supra note 5, at 37-39.

20.    R. Cord, supra note 5, at 40 (quoting Letter to a Presbyterian Clergyman (1808)).

21.    Professor Cord chronicles the federal support provided to the Moravian Brethren at Bethlehem in Pennsylvania.  The function of the Brethren was to civilize the Indians and to promote Christianity.  First passed on July 27, 1787, the resolution supporting the Brethren was supported by every President, including Thomas Jefferson.  The legislation supporting the Brethren was sectarian in character.   Professor Cord reads this history to conclude that had this sort of interaction between church and state been thought to be unconstitutional then certainly the early Congresses and Presidents would not have authorized expenditure of federal money.  R. Cord, supra note 5, at 39-46.

22.    R. Cord, supra note 5, at 47.

23.    Id.

[* * * * *]

25.    Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?  2 Stan. L. Rev. 5 (1949).

[* * * * *]

27.    For example, Professor Raoul Berger cites several cases which recite this common principle of construction.  See e.g., Wright v. Vinton Branch, 300 U.S. 440, 463, 57 S.Ct. 556, 562, 81 L.Ed. 736 (1937); Wisconsin Railroad Commission v. C.B. & Q. RR. Co., 257 U.S. 563, 589, 42 S.Ct. 232, 238, 66 L.Ed. 371 (1922).  See R. Berger, [* * *] [Government by Judiciary: The Transformaiton of the Fourteenth Amendment,] at 136-37 & 137 n. 13.

28.    Professor Fairman has quoted exhaustively from the Congressional Globe.  The various speeches of Congressman Bingham made in support of the fourteenth amendment are quoted in detail.  See Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? 2 Stan. L. Rev. 5, 24-25 (1949).

[* * * *]

30.    R. Berger, [* * *] [Government by Judiciary], at 147-48 (quoting Congressional Globe 2764-65).

[* * * * *]

32.    C. Fairman, supra note 25 at 86 (quoting N. H. Const. art. 6 (1793)).

33.    It is always difficult to wade through the mass of historical research which has been done on both sides of the issue.  For instance, while the defendant-intervenors introduced Professor Robert L. Cord's book, Separation of Church and State: Historical Fact and Current Fiction in support of the historical record upon which they are relying, Professor Cord concludes, in part, that a) the fourteenth amendment did incorporate the establishment clause against the states, id. at 101, and b) the Lord's Prayer, being distinctly Christian in character, or any other prayer which is readily identified with one religion rather than another is impermissible under the establishment clause, id. at 162-65.

    The Court rejects the conclusion of Professor Cord that the fourteenth amendment incorporated the establishment clause against the states.   Professor Cord uncritically adopted the analysis of the United States Supreme Court in reaching his conclusion.  In only a footnote does Professor Cord refer to the scholarship of Professor Charles Fairman; then only does Professor Cord note that there has been some "controversy" surrounding the incorporation issue.

    Assuming arguendo that the establishment clause had been incorporated against the states then Professor Cord would be correct in his conclusion that any activity which is religiously identifiable would be barred.  See infra note 41 for the Court's discussion regarding secular humanism.

37.    Abraham Lincoln once said, "'Stand with anybody that stands right.  Stand with him while he is right and part with him when he does wrong.'"  Jaffa, In Defense of Political Philosophy, 34 National Review 36 (1982) (emphasis in original).

[* * * * *]

40.    Professor Fairman has summarized conclusively in several pages all of the stones and pebbles which could conceivably be relied upon to support the conclusion that the fourteenth amendment intended to incorporate the federal Bill of Rights against the states.  See Fairman, supra note 25, 134-35.

41.   [* * * * *]

    There are many religious efforts abounding in this country.   Those who came to these shores to establish this present nation were principally governed by the Christian ethic.  Other religions followed as the population grew and the ethnic backgrounds were diffused.  By and large, however, the Christian ethic is the predominant ethic in this nation today unless it has been supplanted by secular humanism.  Delos McKown, witness for the plaintiff, expressed himself as believing that secular humanism has been more predominant through the years than we have imagined and indeed was more akin to the beliefs of George Washington, Thomas Jefferson, Benjamin Franklin, and others of that era.  Delos McKown also testified that secular humanism is not a religion, though he ultimately waffled on this point.  The reason that this can be important to the decision of this Court in that case law deals generally with removing the teachings of the Christian ethic from the scholastic effort but totally ignores the teaching of the secular humanist ethic.  It was pointed out in the testimony that the curriculum in the public schools of Mobile County is rife with efforts at teaching or encouraging secular humanism--all without opposition from any other ethic--to such an extent that it becomes a brainwashing effort.  If this Court is compelled to purge "God is great, God is good, we thank Him for our daily food" from the classroom, then this Court must also purge from the classroom those things that serve to teach that salvation is through one's self rather than through a deity.   Indeed, the Supreme Court in Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963) (quoting Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954 (1952), noted that "the State may not establish a 'religion of secularism' in the sense of affirmatively opposing or showing hostility to a religion, thus preferring those who believe in no religion over those who do believe."

    That secular humanism is a religion within the definition of that term which the "high wall" must exclude is supported by the finding in Torcaso v. Watkins, 367 U.S. 488, 495 n. 11, 81 S.Ct. 1680, 1684 n. 11, 6 L.Ed.2d 982 (1961), which recognized that secular humanism is a religion in the traditional sense of the word and also in the statement of the 276 intellectuals who advocate the doctrine of secular religion as delineated in the Humanist Manifesto I and II.   (Defendant-intervenors exhibit # 10).

    Textbooks which were admitted into evidence demonstrated many examples in the way this theory of religion is advanced.  The intervenors maintain that their children are being so taught and that this Court must preclude the Mobile County School Board from continuing to advance such a religion or in the alternative to allow instruction in the schools that would give a child an opportunity to compare the ethics of each religion so as to make their own credibility or value choices.  To this extent, this Court is impressed that the advocacy of the intervenors on the point of necessity makes them parties plaintiff and to this extent they should be realigned as such inasmuch as both object to the teaching of certain religions.

    This Court is confronted with these two additional problems that must be resolved if the appellate courts adhere to their present course of interpreting history as did Mr. Justice Black.  Should this happen then this Court will hunker down to the task required by the appellate decisions.  A blind adherence to Justice Black's absolutism will result in an engulfing flood of other cases addressed to the same point raised by intervenors.  The Court will be called upon to determine whether each book or any statement therein advances secular humanism in a religious sense, a never-ending task.  [* * *]

    The founding fathers were far wiser than we.  They were content to allow the peoples of the various states to handle these matters as they saw fit and were patient in permitting the processes of change to develop orderly by established procedure.  They were not impatient to bring about a change because we think today that it is the proper course or to set about to justify by misinterpretation the original intent of the framers of the Constitution.  We must remember that "He, who reigns within Himself, and rules passions, desires, and fears, is more a king".   Milton, Paradise Regained.  If we, who today rule, do not follow the teachings of history then surely the very weight of what we are about will bring down the house upon our head, and the public having rightly lost respect in the integrity of the institution, will ultimately bring about its change or even its demise.

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