by joint resolution the Congress of the United States adopted a series of 12 proposed Amendments offered by James Madison and sent them to the states for ratification.
The first of the propose amendments, which would have gradually increased the minimum number of people represented by a House member as the size of the House increased, was never ratified.
The second, which prohibits raising or lowering the salary of members of Congress until an intervening House election cycle as taken place, was finally ratified in 1992 as the 27th Amendment - unlike nowadays, the proposals approved the Congress had no time limitation for their being approved by the states.
The other ten thus became Amendments 1-10, commonly known as The Bill of Rights, when finally ratified on December 17, 1791, when Virginia, following the lead in order of NJ, MD, NC, SC, NH, DE, NY, PA, RI & VT (which was formally admitted as a state on March 4) went into affect.
The beginning words of the Bill of Rights, in the First Amendment, are worth remembering today:
Congress shall make no law respecting the establishment of religion nor interfering with the free exercise thereof
It is these words I wish to consider today
Several of the original 13 states had never had an established church - Rhode Island, Pennsylvania, New Jersey and Delaware. Maryland had been established Catholic, but in 1701 that Church was disestablished and the colony became officially Church of England. NY also became Church of England, replacing the Dutch Reformed Church when the British took control of what had been New Netherlands. VA, both Carolinas and GA were also Church of England. The New England Colonies of MA, NH and CT were historically Calvinist.
By this day in 1789, the landscape was already changing.
Maryland had formally disestablished in 1776. As a result of the ongoing events of the Revolution, especially with the adoption of the Declaration of Independence which dissolved the ties with the King, many of the states simply abandoned the practice of establishment without formal action. Virginia disestablished in 1786 with the passage of Jefferson's Virginia Statute of Religious Freedom, and Massachusetts officially disestablished in 1780, although the state continued to use tax money to fund the Congregational Church until 1833, at which time it was the last state to have any form of establishment.
Utah Territory was of course a different kettle of fish because of its founding by the Church of Jesus Christ of Latter Day Saints, the Mormons. Not only was the LDS Church 'established' but it claimed the right to practice polygamy under the free exercise clause of the 1st Amendment. Before examining this further, it is worth noting that the Congress under the Articles of Confederation had guaranteed free exercise for the territory that became the states of OH, IN, IL, MI & WI in the Northwest Ordinance, and Article VI of the Constitution, written in 1787 and ratified in 1788, had said there was to be no religious test for any office or benefit under the Constitution, although at the time and for some years afterward many states had such religious tests - in Maryland you had to be a Trinitarian Christian until the Jew Bill of 1826, in Pennsylvania you had to believe in God.
We are now for the 3rd election cycle seriously considering a Mormon as a candidate for the Presidency. In the 1968 George Romney, governor of Michigan, was considered a serious candidate, in fact being the front-runner during the early part of the cycle. His candidacy failed both because he was a poor campaigner, and because he made unfortunate remarks about having been "brainwashed" on Vietnam. What was not an issue was either his religion, nor the fact that he had been born in Mexico (of American citizen parents - his grandparents had gone there because they were polygamists). Last cycle and this Willard Mitt Romney has been a leading candidate for the Republican nomination. At times his religion HAS become an issue.
It is worth noting that today is the anniversary of another relevant event - in 1890 on this day the Prophet - head of the LDS Church - officially abandoned polygamy, thus beginning the process of moving Utah towards statehood. This was the result of a long series of events, beginning with passage of a law in 1862, signed by Lincoln, which prohibited polygamy in any US Territory. The Morrill Anti-Bigamy Act was not enforced in Utah because Lincoln worked out an agreement with Brigham Young which meant UT stayed out of the Civil War, which was a greater priority for our 16th President than enforcing the statute.
In 1870 the LDS Church decided to force a test case on bigamy, and a man named Reynolds appealed a conviction in the federal territorial court with four claims, one of which was his assertion that by prohibiting polygamy the laws were preventing him from exercising his religion. He asserted that he had a religious duty to marry more than one woman if religiously possible. The Court ruled that while Congress might not have the right to regulate opinion, it was "left free to reach actions which were in violation of social duties or subversive of good order." What is notable in the opinion of the Court, written by Chief Justice Waite (with NO dissents) is that in reaching its decision the Court chose to rely upon Jefferson's 1803 Letter to the Danbury Baptist Association in forming its interpretation of the 1st Amendment. In the opinion we read
Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
The Court ruled that polygamy met the requisite test for the actions to be banned by Congress.
Here is is worth noting that this was Federal law, as applied to territory not a state. The then new 14th Amendment was not yet being used to apply the Bill of Rights against state action - that would not occur until the 20th century with the development of the doctrine of selective incorporation. Still, a strongly united Supreme Court (there was one concurrence which differed slightly on part of the decision, but not on the reliance upon Jefferson in interpreting the Amendment) had established in strong notion the idea of the wall of separation between the government and religion.
There would be subsequent federal statutes and court actions before the LDS Church decided, again, on this day in 1890, to finally move away from polygamy. While there are some in fringe Mormon groups who still try to claim legitimacy of the practice, that should not be relevant to our concerns about the relationship between church and state today.
There are some whose position on issues of religion and government seem very hostile to the principles of the 1st Amendment. As one can read here, Justice Clarence Thomas, as a result of his particular originalist approach to interpretation, has, as Erwin Chemerinsky writes, the view
that state and local governments do not need to comply with the establishment clause. Under this idea, there literally could be an official religion of a state, required prayer in schools, and unlimited government aid to religious institutions provided state law permitted it. That is, for Justice Thomas nothing in the First Amendment would prohibit such a religious regime.
This totally ignores a large body of jurisprudence which has fully incorporated the establishment clause against the states, and which has decided that some of the actions Thomas would allow are violative of the free exercise clause.
Now we have the rise of theocratic movements that seek to assert that this nation is Christian, although we can read in the Treaty with the Bey of Tripoli, negotiated by the administration of George Washington and ratified unanimously by a United States Senate in 1797 containing people who had participated in the writing of the Constitution or of the Bill of Rights, the following words:
As the Government of the United States of America is not, in any sense, founded on the Christian religion,—as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen,—and as the said States never entered into any war or act of hostility against any Mahometan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
It is worth repeating the following words: the Government of the United States of America is not, in any sense, founded on the Christian religion
Nevertheless we have those, politicians and religious leaders, who will assert otherwise.
We have from time to time seen them rise in prominence and influence.
One may believe his or her form of Christianity is the only correct religion, and that should not be a problem, unless s/he seeks to impose that religion upon others through the legal process.
One's religious beliefs and practices perhaps should not be an issue politically, unless s/he seeks to make it the basis of why s/he is running, of how s/he would operate as an elected official, who according to the oath required for public officials other than the President found in the same section of Article VI that says there should be no religious test means that s/he must support the Constitution:
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
Supporting the Constitution requires all of us, even if we disagree,to abide by the interpretation of that document as amended. As John Marshall noted in his opinion in Marbury, if Congress can by ordinary statute overcome a Constitutional provision/limitation, then the notion of a Constitution as limiting the power of government is absurd. In such case, we are no longer a republic as we have known it, the people who by ratification of the document whose Preamble begins "We the People" are no longer sovereign.
The President is bound by the principles of Article VI - it does say "all executive" officers. He is further bound by the text of oath for his office as found in Article II:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.
One should note that the words "so help me God" added by George Washington and included by every president since (with the possible exception of John Tyler) are not part of the required oath.
The principles of freedom of religion are not all of the Bill of Rights under siege in our time. We have seen Congress and the Supreme Court seriously whittle away the protections of the 4th Amendment as well. That is also worthy of a serious discussion.
Today is for Christians their primary weekly day of worship. They have the freedom to worship as they please - within very few limitations - as the result of words approved this day by the Congress of the United States and sent to the states for ratification.
Religion - speech - assembly and petition - press - trial by jury - search and seizure -
So much of what we take for granted as our rights and privileges as Americans.
On this day in 1789 the Congress of the United States moved forward to protect these for those in their time, for those in our time, for those in time yet come.
That is surely worth a few words of remembrance.
Peace.