by David Barton
Has it [government] any solid foundation? Any chief cornerstone? … I think it has an everlasting foundation in the un-changeable will of God…. The sum of my argument is that civil government is of God.153 JAMES OTIS
[T]he only true basis of all government [is] the laws of God and nature. For government is an ordinance of Heaven, designed by the all benevolent Creator.154 SAMUEL ADAMS
[W]e will look for the permanency and stability of our new government to Him who bringeth princes to nothing and teacheth senators wisdom.155 JOHN HART, SIGNER OF THE DECLARATION
[T]he rights essential to happiness…. We claim them from a higher source – from the King of kings and Lord of all the earth.156 JOHN DICKINSON, SIGNER OF THE CONSTITUTION; GOVERNOR OF PENNSYLVANIA
[W]hatsoever State among us shall continue to make piety [respect for God] and virtue the standard of public honor will enjoy the greatest inward peace, the greatest national happiness, and in every outward conflict will discover the greatest constitutional strength.157 JOHN WITHERSPOON, SIGNER OF THE DECLARATION
I … recommend a general and public return of praise and thanksgiving to Him from whose goodness these blessings descend. The most effectual means of securing the continuance of our civil and religious liberties, is always to remember with reverence and gratitude the Source from which they flow.158 JOHN JAY, ORIGINAL CHIEF JUSTICE U. S. SUPREME COURT
No people ought to feel greater obligations to celebrate the goodness of the Great Disposer of Events and of the Destiny of Nations than the people of the United States…. And to the same Divine Author of every good and perfect gift we are indebted for all those privileges and advantages, religious as well as civil, which are so richly enjoyed in this favored land.159 JAMES MADISON
Religion and morality are the essential pillars of civil society.160 GEORGE WASHINGTON
Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.161 JOHN ADAMS
These quotes, coupled with the numerous others already presented in this chapter, overwhelmingly confirm the blatant inaccuracy of the Court’s assertion that the government remain secular.
The crowning irony of this case was that the Court upheld the menorah while striking down the crèche, thus evoking this strong criticism in the dissent:
[T]he Supreme Court of the United States has concluded that the First Amendment creates classes of religions based on the relative numbers of their adherents. Those religions enjoying the largest following must be consigned to the status of least-favored faiths so as to avoid any possible risk of offending members of minority religions.162
The decision in this case clearly illustrates that when the standard of original intent is abandoned, Court decisions lack what Justice William Rehnquist termed “unified and principled results”163 – demonstrated by the fact that within only a five-year period, the Court had completely reversed itself on the issue of crèches. As Justice Antonin Scalia accurately observed:
[O]ur Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people.164
Lee v. Weisman, 1992
The issue in this case was prayer, specifically, invocations and benedictions delivered at school graduations. The facts were summarized by the Court:
The city of Providence, Rhode Island had a policy of permitting its public high school and middle school principals to invite members of the clergy to offer invocation and benediction prayers as part of the school’s formal graduation ceremonies. Pursuant to this policy, the principal of a middle school invited a rabbi to offer such prayers. The principal gave the rabbi a pamphlet entitled “Guidelines for Civic Occasions,” which recommended that public prayers at nonsectarian civic ceremonies be composed with inclusiveness and sensitivity. Also, the principal advised the rabbi that the invocation and benediction should be nonsectarian.165
Although the rabbi prayed according to the “politically correct” guidelines given him, a suit was nevertheless filed by a student and her father, Daniel Weisman. When that case finally reached the Supreme Court, by a 5-4 vote the Court struck down the traditional practice of graduation invocations and benedictions offered by clergy. The Court provided the essence of its argument in this simple sentence:
But it is not enough that the government restrain from compelling religious practices: it must not engage in them either.166
Notice the Court’s conclusion that to allow a rabbi to offer a prayer was the equivalent of the government engaging in a religious practice – an incomprehensible stretch both of logic and of interpretation.
Nevertheless, even if it were true that the government allowing prayer is the same as engaging in it, then our history is replete with numerous examples of the government doing so – at the insistence of prominent Founding Fathers. Notice:
Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor…. therefore, I do recommend [that] the people of these [United] States … may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country.167 GEORGE WASHINGTON
As the safety and prosperity of nations ultimately and essentially depend on the protection and the blessing of Almighty God, and the national acknowledgment of this truth is not only an indispensable duty which the people owe to Him…. I have therefore thought fit to recommend … a day of solemn humiliation, fasting, and prayer that the citizens of these [United] States … offer their devout addresses to the Father of Mercies.168 JOHN ADAMS
I do therefore issue this my proclamation, recommending to all who shall be piously disposed to unite their hearts and voices in addressing at one and the same time their vows and adorations to the Great Parent and Sovereign of the Universe … to render Him thanks for the many blessings He has bestowed on the people of the United States.169 JAMES MADISON
The Supreme Ruler of the Universe, having been pleased in the course of His providence to establish the independence of the United States of America … we ought to be led by religious feelings of gratitude and to walk before Him in all humility according to His most holy law…. That with true repentance and contrition of heart we may unitedly implore the forgiveness of our sins through the merits of Jesus Christ and humbly supplicate our heavenly Father.170 SAMUEL ADAMS
In the beginning of the contest with Great Britain, when we were sensible of danger, we had daily prayer in this room for the Divine protection. Our prayers, sir, were heard, and they were graciously answered…. I therefore beg 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.171 BENJAMIN FRANKLIN
[W]e live in a republic thus highly favored of heaven, and under a social compact from which so many benefits result: and whilst these considerations should animate us with exalted sentiments of patriotism … they ought above all to inspire us with becoming gratitude to the great Ruler of Nations, on Whose favor all our happiness depends.172 GEORGE CLINTON, REVOLUTIONARY GENERAL; GOVERNOR OF NEW YORK
And I do hereby call upon the people…. [to] offer to our Almighty and all-gracious God, through our Great Mediator, our sincere and solemn prayers for his Divine assistance and the influences of His Holy Spirit.173 JONATHAN TRUMBULL, GOVERNOR OF CONNECTICUT
[W]e can only depend on the all powerful influence of the Spirit of God, Whose Divine aid and assistance it becomes us as a Christian people most devoutly to implore. Therefore I move that some minister of the Gospel be requested to attend this Congress every morning at o’clock [sic] during the sessions in order to open the meeting with prayer.174 ELIAS BOUDINOT, PRESIDENT OF CONGRESS
Let us therefore implore Him to continue His benedictions upon
our beloved country, and to grant us unanimity, patriotism, and wisdom, to pursue, at this important session, the most essential interest of this State and of the union.175 DANIEL TOMPKINS, GOVERNOR OF NEW YORK; VICE PRESIDENT OF THE U. S.
Numerous similar calls for public prayer were regularly issued by our Founding Fathers and by the Congress. This fact was so clear that it evidently caused the Court to refrain from even raising the issue of historical precedent. As the dissent noted, the Court’s decision was “conspicuously bereft of any reference to history.”176 (emphasis added).
This statement, however, was not completely accurate. Justice Souter, in his concurring opinion, had acknowledged that the Founders allowed, encouraged, and participated in such prayers; but he then accused the Founders of not understanding the meaning of the Constitution they themselves had authored. Souter complained:
[These] practices prove, at best, that the Framers simply did not share a common understanding of the Establishment Clause, and, at worst, that they, like other politicians, could raise constitutional ideals one day and turn their backs on them the next.177
Amazingly, Justice Souter asserts that his understanding of the constitutionality of prayer is more accurate than that of those who created the document! The dissent, however, quickly attacked Souter’s implication that history contained confused precedents on this issue. Justice Antonin Scalia, speaking for Justices William Rehnquist, Byron White, and Clarence Thomas, explained:
From our Nation’s origin, prayer has been a prominent part of governmental ceremonies and proclamations. The Declaration of Independence, the document marking our birth as a separate people, “appeal[ed] to the Supreme Judge of the world for the rectitude of our intentions” and avowed “a firm reliance on the protection of Divine Providence.” In his first inaugural address, after swearing his oath of office on a Bible, George Washington deliberately made a prayer a part of his first official act as President…. Such supplications have been a characteristic feature of inaugural addresses ever since. Thomas Jefferson, for example, prayed in his first inaugural address…. In his second inaugural address, Jefferson acknowledged his need for Divine guidance and invited his audience to join his prayer…. Similarly, James Madison, in his first inaugural address, placed his confidence “in the guardianship and guidance of that Almighty Being … [with] fervent supplications and best hopes for the future.” … The other two branches of the Federal Government also have a long-established practice of prayer at public events…. [T]here is simply no support for the proposition that the officially sponsored nondenominational invocation and benediction read by Rabbi Gutterman – with no one legally coerced to recite them – violated the Constitution of the United States. To the contrary, they are so characteristically American they could have come from the pen of George Washington or Abraham Lincoln himself.178
As previously noted, the Court’s standard for what constitutes an unconstitutional religious activity had grown increasingly more narrow and restrictive from case to case; the Weisman case proved no exception. In it, the Court introduced a new test for constitutionality: the “psychological coercion test.” Under this test, if a single individual finds himself uncomfortable in the presence of a religious practice in public, then that activity is unconstitutional.
The Court alleged that the unconstitutional “psychological coercion” had occurred when the crowd stood for Rabbi Gutterman’s prayer:
What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy…. The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony place public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the Invocation and Benediction.179
The dissent vehemently objected to this new test:
As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion…. The opinion manifests that the Court itself has not given careful consideration to its test of psychological coercion. For if it had, how could it observe, with no hint of concern of disapproval, that students stood for the pledge of Allegiance, which immediately preceded Rabbi Gutterman’s invocation?…. [S]ince the Pledge of Allegiance … included the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Clause issue as the invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? Logically, that ought to be the next project for the Court’s bulldozer.180
In its decision, the majority had also implied that public prayers were disruptive and divisive, to which the dissent responded:
[N]othing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration – no, an affection – for one another than voluntarily joining in prayer together, to God whom they all worship and seek…. The Baptist or Catholic who heard and joined in the simple and inspiring prayers of Rabbi Gutterman on this official and patriotic occasion was inoculated from religious bigotry and prejudice in a manner that can not be replicated. To deprive our society of that important unifying mechanism … is as senseless in policy as it is unsupported in law.181
Justices Scalia, Rehnquist, Thomas, and White concluded their argument with these strong words:
The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests of the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room. For most believers it is not that, and has never been. Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the “protection of Divine Providence,” as the Declaration of Independence put it, not just for individuals but for societies; because they believe God to be, as Washington’s first Thanksgiving Proclamation put it, the “Great Lord and Ruler of Nations.” One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the long-standing American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it. The narrow context of the present case involves a community’s celebration of one of the milestones in its young citizen’s lives, and it is a bold step for this Court to seek to banish from that occasion, and from thousands of similar celebrations throughout this land, the expression of gratitude to God that a majority of the community wishes to make.182
The Weisman case fully illustrates the anti-religious bias which now dominates much of the Court’s current jurisprudence. In fact, public expressions of prayer have been such a consistent loser over the past three decades that the district judge who issued the original ruling in the Weisman case had concluded:
[T]he Constitution as the Supreme Court views it does not permit it [prayer]…. Unfortunately, in this instance there is no satisfactory middle ground…. Those who are anti-prayer have thus been deemed the victors.183 (emphasis added)
These eight representative cases, selected from scores of similar cases, confirm that the current First Amendment is unlike the one originally delivered by the Founders. In its remaking of the First Amendment over the past three decades, the Court has created four different st
andards: the “Establishment Test” (1947), the “Lemon Test” (1971 – discussed in the following chapter), the “Endorsement Test” (1985), and the “Psychological Coercion Test” (1992 – now called the “Outsider Test”). Observing these changes, one is reminded of Thomas Jefferson’s warning:
The Constitution … is a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please.184
Under the influence of the judiciary, the Constitution has indeed taken on a new “form,” and even if an individual had absolutely no knowledge of our heritage or constitutional history, one must wonder at the logic behind the current interpretation.
The First Amendment’s wording is explicit: “Congress shall make no law respecting an establishment of religion.” Yet, amazingly, most of the contemporary rulings currently proceeding from that Amendment involve neither “Congress” nor the “making of a law.” It is truly remarkable that the Court now considers a rabbi to be the equivalent of “Congress,” and that offering an invocation or benediction is now the equivalent of “making a law.”
The free exercise of religion is no longer the inalienable right recognized by our Founding Fathers. In fact, the First Amendment’s guarantee for the free exercise of religion is now often ruled by the Court as the unconstitutional establishment of religion prohibited by that same Amendment. Therefore, because of the current Court’s absurd interpretation, public free exercise of religion is now an unconstitutional establishment of religion, thus causing the First Amendment to violate itself.
