Original Intent: The Courts, the Constitution, and Religion

by David Barton

  Consequently, it is never a matter of if morality can be legislated, only whose morality will be legislated.

  The Founders believed the Bible to be the perfect example of moral legislation and the source of what they called “the moral law.”40 For nearly 150 years, the Courts relied on that moral law as the basis for our civil laws – a fact clearly illustrated in the following three cases.

  The indictment from the grand jury describes the offense in the first case:

  Jesse Sharpless … designing, contriving, and intending the morals, as well of youth as of divers other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires … in a certain house there … scandalously did exhibit and show for money … a certain lewd … obscene painting representing a man in an obscene … and indecent posture with a woman, to the manifest corruption and subversion of youth and other citizens of this commonwealth.41

  A classic description of pornography – yet this occurred in 1815. The defense claimed that since this was only a “private viewing,” it was not an indictable offense. The court disagreed, stating that many things occurring in private have a public effect and therefore are punishable:

  This court is … invested with power to punish not only open violations of decency and morality, but also whatever secretly tends to undermine the principles of society…. [W]hatever tends to the destruction of morality in general may be punished criminally. Crimes are public offences not because they are perpetrated publicly, but because their effect is to injure the public. Burglary, though done in secret, is a public offense; and secretly destroying fences is indictable … hence, it follows, that an offence may be punishable if in its nature and by its example it tends to the corruption of morals; although it be not committed in public.

  The defendants are charged with exhibiting and showing … for money, a lewd … and obscene painting…. [I]f the privacy of the room was a protection, all the youth of the city might be corrupted by taking them one by one into a chamber and there inflaming their passions by the exhibition of lascivious pictures….

  [A]lthough every immoral act, such as lying, etc., is not indictable, yet where the offence charged is destructive of morality in general … it is punishable at common law. The destruction of morality renders the power of the government invalid…. The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences…. No man is permitted to corrupt the morals of the people; secret poison cannot be thus disseminated.42

  Davis v. Beason, 1890

  United States Supreme Court

  In this case, it was argued that what was immoral for one group might be moral for another. Under federal statutes, Samuel Davis had been convicted, fined, and sentenced to jail for bigamy and polygamy. He appealed, and before the Supreme Court his attorneys argued that laws against bigamy and polygamy: (1) were a violation of the First Amendment because they interfered with Davis and other Mormon’s free exercise of religion; and (2) the Idaho law under which he was convicted was a violation of the Fourteenth Amendment which prohibited the States from making laws that interfered with the rights of their citizens. The Court rejected those arguments; its response was very straightforward and succinct:

  Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man…. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind….

  There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members…. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines and no heed would be given to the pretence that … their supporters could be protected in their exercise by the Constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts recognized by the general consent of the Christian world … must be suspended in order that the tenets of a religious sect … may be carried out without hindrance.

  The constitutions of several States, in providing for religious freedom, have declared expressly that such freedom shall not be construed to excuse acts of licentiousness [looseness and immorality]…. [T]he constitution of New York of 1777 provided as follows: “The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed within this State to all mankind: Provided, That the liberty of conscience hereby granted shall not be so construed as to excuse acts of licentiousness….” The constitutions of California, Colorado, Connecticut, Florida, Georgia, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nevada and South Carolina contain a similar declaration.43

  Although the defendant claimed that his actions were not licentious – at least in his view – the Supreme Court rejected that argument on the basis that his behavior was a crime by “the laws of … Christian countries.”

  Murphy v. Ramsey, 1885

  United States Supreme Court

  This case also dealt with polygamy; and, as in the previous case, the Court upheld Biblical standards, declaring:

  [C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth … than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; [the family is] the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.44

  Despite the formerly long-standing legal protection for this traditional teaching, contemporary legal action now directly challenges teachings that a family “consists in and springs from the union for life of one man and one woman in the holy estate of matrimony.” For example, California recently proposed legislation requiring that whenever sex education was taught:

  Course material and instruction shall stress that monogamous heterosexual [one man and one woman] intercourse within marriage is a traditional American value.45

  The American Civil Liberties Union (ACLU) challenged this provision, explaining:

  It is our position that teaching that monogamous, heterosexual intercourse within marriage as a traditional American value is an unconstitutional establishment of a religious doctrine in public schools. There are various religions which hold contrary beliefs with respect to marriage and monogamy. We believe [this bill] violates the First Amendment.46

  Ironically, those groups which so often advocate a complete toleration for any belief or behavior if done in the name of religion invoke Jefferson and Madison as their authorities. Such groups probably would be horrified to learn what the Court pointed out in Reynolds v. United States (1878):

  It is a significant fact that on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that “all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,” the legislature of that State substantially enacted the … death penalty [for polygamy].47 (emphasis added)

  Even Jefferson and Madison, touted by today’s liberal groups as champions of tolerance, strongly opposed anything except monogamous heterosexual rel
ationships. This is established by the fact that they enacted the death penalty for bigamy and polygamy and that Jefferson himself proposed “castration” as the penalty for sodomy.48

  Although the argument has been raised for generations that any moral behavior or belief should be protected by the Constitution – an argument which has always been consistently denied and refuted by responsible courts – the difference is that today’s courts seem determined to sustain it.

  City Council of Charleston v. S. A. Benjamin, 1846

  Supreme Court of South Carolina

  At issue in the following cases were violations of what today are called “Blue Laws,” or Sunday closing laws. The question often surrounding such laws was whether they were a specific legislation of Christianity to the exclusion of all other beliefs. Many courts believed that this was not necessarily so; they pointed out, first, that no particular day had been established by God’s decree as the Sabbath in the New Testament, and second, that the Apostles themselves allowed great latitude on this issue.49 Consequently, these courts held that while Blue Laws were generally associated with religion, they were not necessarily religious mandates. Further, since days of rest had been proved to have clear secular benefits on both public health and morale,† these courts ruled that such laws fell within the State’s legislative prerogative to – as the U. S. Constitution had phrased it – “promote the general welfare” of its citizens. For example (emphasis added in each example):

  [T]he legislature of the State has the power, under the Constitution, to prohibit work on Sunday as a matter pertaining to the civil well-being of the community.50 MELVIN v. EASLEY

  It [a day of rest] enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness … [without it, he] would be worn out and defaced by an unremitted continuance of labor.51 JOHNSTON v. COMMONWEALTH

  The legislative authority to provide for it [a day of rest] … is derived from its general authority to regulate the business of the community and to provide for its moral and physical welfare.52 COMMONWEALTH v. HAS

  Sunday laws are based on the experience of mankind as to the wisdom and necessity for both the physical and moral welfare of man, of having at stated intervals a day of rest from customary labor…. [T]he purpose of Sunday statutes is to promote the physical and moral nature of man.53 STATE v. MCGEE

  Although many courts took this position on Blue Laws, others believed them to be legislative policies – although permissible legislative policies – which did reflect specific Christian beliefs. The next four cases reflect decisions from both sides. Yet, regardless of the stand taken by each court on whether Blue Laws were Christian mandates, they all agreed on the importance of and the interdependence between Christianity and the law in general.

  In City Council of Charleston v. Benjamin (1846), the defendants argued that the Blue Laws were a violation of the constitution since they were based on specific Christian teachings. The prosecution responded to that argument, claiming that even if they were, they still would not be unconstitutional since:

  Christianity is a part of the common law of the land, with liberty of conscience to all. It has always been so recognized…. If Christianity is a part of the common law, its disturbance is punishable at common law. The U. S. Constitution allows it as a part of the common law. The President is allowed ten days [to sign a bill], with the exception of Sunday. The Legislature does not sit, public offices are closed, and the Government recognizes the day in all things…. The observance of Sunday is one of the usages of the common law recognized by our U. S. and State Governments…. Christianity is part and parcel of the common law…. Christianity has reference to the principles of right and wrong … it is the foundation of those morals and manners upon which our society is formed; it is their basis. Remove this and they would fall…. it [morality] has grown upon the basis of Christianity.54

  This court agreed with the prosecution, taking the position that Blue Laws were a legitimate recognition of Christianity:

  The Lord’s day, the day of the Resurrection, is to us who are called Christians, the day of rest after finishing a new creation. It is the day of the first visible triumph over death, hell and the grave! It was the birth day of the believer in Christ, to whom and through whom it opened up the way which, by repentance and faith, leads unto everlasting life and eternal happiness! On that day we rest, and to us it is the Sabbath of the Lord – its decent observance, in a Christian community, is that which ought to be expected.55

  The defense argued that to legislate according to Christian standards violated religious toleration. However, the court vehemently disagreed with this argument, pointing out:

  What gave to us this noble safeguard of religious toleration … ? It was Christianity…. But this toleration, thus granted, is a religious toleration; it is the free exercise and enjoyment of religious profession and worship, with two provisos, one of which, that which guards against acts of licentiousness [immorality], testifies to the Christian construction….

  What constitutes the standard of good morals? Is it not Christianity? There certainly is none other…. The day of moral virtue in which we live would, in an instant, if that standard were abolished, lapse into the dark and murky night of Pagan immorality….

  In the Courts over which we preside, we daily acknowledge Christianity as the most solemn part of our administration. A Christian witness, having no religious scruples about placing his hand upon the book, is sworn upon the holy Evangelists – the books of the New Testament which testify of our Savior’s birth, life, death, and resurrection; this is so common a matter that it is little thought of as an evidence of the part which Christianity has in the common law….

  I agree fully to what is beautifully and appropriately said in Updegraph v. The Commonwealth … – Christianity, general Christianity, is, and always has been, a part of the common law: “not Christianity founded on any particular religious tenets; not Christianity with an established church … but Christianity with liberty of conscience to all men.”56

  In the view of the Charleston court, Christian principles had produced America’s toleration for other religions; and while America did legislate according to Christian standards of conduct for social behavior, it did not tell other religions how, where, when, or even whether to worship. The only restraints placed on those religions were that their religious practices not be licentious or subversive of public morality or safety. Aside from these stipulations, America granted broad religious toleration to other religions not in spite of, but because of its Christian beliefs.

  Lindenmuller v. The People, 1860

  Supreme Court of New York

  This court ruled that while Blue Laws could be considered a civil prerogative of the State to provide a day of rest for all people, it further explained that even if they were adjudged to be a specific legislation of Christianity, that this would be permissible since Christianity was part of the common law:

  It would be strange that a people Christian in doctrine and worship, many of whom or whose forefathers had sought these shores for the privilege of worshipping God in simplicity and purity of faith, and who regarded religion as the basis of their civil liberty and the foundation of their rights, should, in their zeal to secure to all the freedom of conscience which they valued so highly, solemnly repudiate and put beyond the pale of the law the religion which was dear to them as life and dethrone the God who they openly and avowedly professed to believe had been their protector and guide as a people.57

  The court further explained that maintaining an official respect for Christianity did not infringe upon the free exercise of religion for others; instead, it provided an umbrella of protection:

  Religious tolerance is entirely consistent with a recognized religion. Christianity may be conceded to be established religion to the qualified extent mentioned, while perfect civil and political equality with freedom of conscience and religious preference is secured to individuals of every other creed
and profession…. [and] every man is left free to worship God according to the dictates of his conscience, or not to worship him at all, as he pleases…. Compulsory worship of God in any form is prohibited, and every man’s opinion on matters of religion, as in other matters, is beyond the reach of the law. No man can be compelled to perform any act … as a duty to God; but this liberty of conscience in matters of faith and practice is entirely consistent with the existence, in fact, of the Christian religion…. All agreed that the Christian religion was engrafted upon the law and entitled to protection as the basis of our morals and the strength of our government.58

  Shover v. State, 1850

  Supreme Court of Arkansas

  This court accepted the fact that the establishment of Sunday laws was within the legitimate legislative power of the State, regardless of whether such laws were religious in nature. However, it did not hesitate to expound upon the important relationship between Christianity and the law:

  [T]he Christian religion …. is recognized as constituting a part and parcel of the common law and as such, all of the institutions growing out of it, or, in any way connected with it, in case they shall not be found to interfere with the rights of conscience, are entitled to the most profound respect and can rightfully claim the protection of the law-making power of the State.59

  Commonwealth v. Nesbit, 1859

  Supreme Court of Pennsylvania

  In this final case on Blue Laws, the court ruled that such laws were both civil and religious in nature. It also took time to explain that such laws did not violate the constitutional guarantee for “liberty of conscience,” because liberty of conscience was indeed to be protected: