||Subject: Holy Trinity
To: Separation of Church/State?
In article <email@example.com>,
firstname.lastname@example.org (Hypatia SM) writes:
>MYTH: The Supreme Court has declared that the United States is a Christian
>FACT: In the Supreme Court's 1892 Holy
Trinity Church v. United States
>decision Justice David Brewer wrote that "this is a Christian nation."
>Brewer's statement occurred in dicta, a legal term meaning writing that
>reflects a judge's personal opinion, not an official court pronouncement that
>sets legally binding precedent.
This is sloppy legal analysis.
First, the statement is not "dicta," and second, even if it were,
it could still be a legally binding precedent.
"Dicta" is a personal comment by a judge in his opinion which is a digression
from the matter before the court. The phrase refers to short statements which are
"not upon the point or question pending, as if turning aside for the time from the
main topic of the case to collateral subjects."
Rohrbach v. Ins Co. 62 NY 47, 58 See Black's Law Dictionary.
The line about America being a Christian nation is the central support for the
Court's holding, and is thus not "dicta." It is not a "short"
digression; it occupies fully half of the Court's opinion.
Background: In the Holy Trinity
case, Congress passed an anti-immigration statute. Certain vocations were explicitly
exempted from the law ("among them professional actors, artists, lecturers, singers,
and domestic servants" [143 U.S. 457, 459] ), but not preachers. The Church of the
Holy Trinity hired an Englishman as their pastor, and the INS goons attempted to keep them
from having a pastor based on this law. The Supreme Court held that because this is a
Christian nation, the law could not be applied against Churches.
In PUBLIC CITIZEN v. DEPARTMENT OF
JUSTICE, 491 U.S. 440 (1989), JUSTICE KENNEDY,
with whom THE CHIEF JUSTICE and JUSTICE
O'CONNOR join, concurring in the judgment, wrote:
The Church of the Holy Trinity entered into a contract with an alien residing in
England to come to the United States to serve as the director and pastor of the church.
Notwithstanding the fact that this agreement fell within the plain language of the
statute, which was conceded to be the case, see ibid., the Court overrode the plain
language, drawing instead on the background and purposes of the statute to conclude that
Congress did not intend its broad prohibition to cover the importation of Christian
ministers. The central support for the Court's ultimate conclusion that Congress
did not intend the law to cover Christian ministers is its lengthy review of the
"mass of organic utterances" establishing that "this is a Christian
nation," and which were taken to prove that it could not "be believed that a
Congress of the United States intended to make it a misdemeanor for a church of this
country to contract for the services of a Christian minister residing in another
nation." Id., at 471.
[491 U.S. 440, 474-75]
In "The Rights of Foreigners and Immigrants in Europe: Recent Trends," George
Katrougalos, Ph.D., discusses the Holy Trinity
case and says,
A federal law of this period declared it a crime to assist or encourage the importation
or the migration of any alien into the country, with exceptions only for artists, actors,
domestic servants and a few others, but not for pastors. The court overturned the law
because "it went against the whole history and life of the country."
This is not the language of "dicta." The entire case rests on this
The so-called "dicta" in Holy
Trinity is ignored not because it is "dicta," but because it shows that
the myth of "separation of church and state" is a big lie.
"Dicta" has in fact been used as the precedent for the most important legal
conclusions. I have shown this in the accompanying post on "Everson Dicta."
>Historians debate what Brewer meant by the statement,
Name one. Brewer is perfectly clear. Everyone understood what he meant, and only
self-deceived atheists can doubt his meaning.
>some claiming that he
>only intended to acknowledge that Christianity has always been a dominant
>force in American life.
Justice Brewer pointed out that his claim reached into the "organic law" of
the nation, and every State in the union, thus putting it on the firmest of legal
authority. The claim that America is a Christian nation is in "the domain of official
action and recognition," not mere "individual acceptance." Brewer, The
United States: A Christian Nation (1905) (p 27 in 1996 reprint).
You will notice that I have presented no doubtful facts. Nothing has been stated which
is debatable. The quotations from charters are in the archives of the several States; the
laws are on the statute books; judicial opinions are taken from the official reports . . .
. I could show how largely our laws and customs are based upon the laws of Moses and the
teachings of Christ. . . . But I must not weary you. I could go on indefinitely, pointing
out further illustrations both official and non-official, public and private. . . .
(Ibid, p. 29)
>Research by Americans United shows that five years
>after the Trinity ruling, Brewer himself seemed to step away from it in a
>case dealing with legalized prostitution in New Orleans.
"Seemed" only to the wishful-thinking atheists who don't like his Holy Trinity opinion.
>The New Orleans dispute arose when a Methodist church sought
an injunction to
>bar implementation of a city ordinance allowing prostitution in one zone in
The ordinance did not "allow" prostitution. Justice Brewer, speaking for the
Court, said that
the ordinance does not attempt to give [women of lewd character] license to
carry on their business any way they see fit, or, indeed, to carry it on at all, or to
conduct themselves in such a manner as to disturb the public peace within the prescribed
limits. Clauses 3 and 4 of the first section of the ordinance are clearly designed to
restrain any public manifestation of the vocation which these persons pursue, and to keep
so far as possible unseen from public gaze the character of their lives . . . .
The Court did not place its imprimatur on prostitution.
>The Methodists argued the measure would "destroy the
>and good order of the neighborhood."
>Citing the Trinity decision, church officials insisted that the ordinance
>encouraged prostitution, an activity inconsistent with Christianity "which
>the Supreme Court of the United States says is the foundation of our
>government and the civilization which it has produced...."
>Writing for a unanimous court, Brewer completely ignored the church's
>religious argument and upheld the New Orleans law. Brewer's bypass suggests
>that he did not mean to assert in the Trinity case that the United States
>should enforce Christianity through its laws.
This is ignorance of basic constitutional law. It misrepresents the decision of the
In Holy Trinity, the statute was a
federal immigration statute. The Court had jurisdiction to review that statute under the
Constitution. At the time of L'Hote (the New Orleans case), the federal judiciary
did not have jurisdiction to review state police power. AU just doesn't understand the
concept of federalism. If the City of New Orleans made MURDER legal in a certain district
of the city, the US Supreme Court would have no jurisdiction to overrule the local
legislature. There is nothing in the case which would indicate that the L'Hote
Court denied the holding in Holy Trinity
(that the US is a Christian nation). The holding of the case is found on 597:
It is no part of the judicial function to determine the wisdom or folly of a regulation
by the legislative body in respect to matters of a police nature.
I fear that AU wishes that the feds did have such omnipotent
powers, but refused to exercise such powers because they were titillated at the prospect
of spreading a little immorality throughout Louisiana.
Christians are not put in a preferred position by giving the Supreme Court
unconstitutional powers over local governments.
>In any case, the Trinity decision is a legal anomaly that has
been cited by
>the court only once since then.
To no one's surprise, seeing how law in the 20th century has been hijacked by Secular
>And obviously the opinion of one obscure
>Supreme Court justice does not amount to an official decree that the United
>States is a Christian nation.
There are more errors in this statement than words.
- Justice Brewer was not "obscure," except in the mind of ignorant people.
- It was not just Justice Brewer's view; the opinion reflected the unanimous view of the
Court; no Justice authored a concurring opinion.
- The Holy Trinity Court did not simply
make a decree out of thin air; it surveyed the entire history of the country, and
considered the organic law of every single state in the union, and their conclusion was
>If a Christian republic had been the goal of
>the framers, that sentiment would have been included in the Constitution.
This too is erroneous, and fails to appreciate the dynamics of federalism and
ecclesiastical competition at the time the Constitution was framed. Every state
constitution was Christian. They were jealous of their rights. Any mention of religion in
the federal constitution would have been perceived as an establishment of one of the rival
denominations, and could have jeopardized its ratification. It's too bad the clergy had to
be so competitive that they could not agree on a simple statement of faith, but that is
the reality, not a desire to create a God-less nation. The goal of Theocracy -- a nation
"under God" -- was always the goal of America, and no
court before 1947 ever declared otherwise.
Here is more evidence of the Christian character
of the Court as well as evidence that no one in that more Christian era considered the
Christian history in Holy Trinity to be
mere "obiter dicta." It comes from the events surrounding Justice Brewer's
"A meeting of the Bar of the Supreme Court of the United States was held in the
Court Room on Saturday, April 30, 1910." (218 U.S. vii)
Addresses were made by a distinguished panel, and a resolution was presented by the
American Society of International Law, of which Justice Brewer was a leading member.
In his tribute to Brewer, Hannis Taylor, a leading scholar in International Law
(several of his books can be found at Amazon.com)
who also argued a dozen cases before the U.S. Supreme Court, said this about J. Brewer:
By a romantic accident [Justice Brewer] was born of American
missionary parents in Asia Minor, not so far from that Hellenized Roman province in which
St. Paul was born, and in which he passed his boyhood. It is not irreverent to say that
the great Apostle of the Gentiles, who was "brought up at the feet of Gamaliel"
[Acts 22:3] and who transformed the mystery confided to a despised Jewish sect into a vast
Christian theology, has never had a more worthy disciple. While an intellectual fervor
very nearly akin to genius lighted the fires of his mind, a deep and tender religious
feeling chastened his heart with a softer radiance. Out of the union of those rarely
united streams grew the life of an almost perfect man, who was ever mindful of the
exhortation of St. Paul to Timotheus: "Charge them to practice benevolence, to be
rich in good works, to be bountiful and generous, storing up for themselves a good
foundation for the time to come, that they may lay hold on eternal life." [1 Timothy
6:17-19] Fortunate, indeed, it is when the mind that expounds and applies positive law in
the midst of vast and conflicting passions and interests is illuminated by the inner light
of a noble high-mindedness which spurns all vanities, all prejudices, all revenges.
The judgments of Mr. Justice Brewer, delivered during the last twenty years, and
distributed through eighty volumes of the Supreme Court's Reports, involve nearly every
question of Federal law, as well as many within that twilight zone of law by analogy,
commonly known as international law. If he could come back to us in order to designate
those special parts of his work by which he would prefer to be judged, I cannot doubt that
his finger would point at once to those dissertations in which he has so luminously
applied the principles of Roman law to the solution of the momentous questions that have
arisen in this country of might rivers and inland seas, out of what are generally known as
riparian or water rights. Whenever the fickle Missouri or the capricious Mississippi
becomes so restless in its bed as to eat away its banks on the one hand in order to add on
the other, or in some torrential frenzy suddenly leaps from its old bed in order to seek a
new one, the resulting changes in public and private rights thus wrought by accretion or
avulsion can only be defined by reference to the principles of that code whose influence
has been second only to that of the Christian religion. . . . Of that body of principles
drawn from Roman sources, upon which public and private rights in this country so largely
depend, Mr. Justice Brewer was a master. 54 L.Ed. 1235.
The committee "prepared and presented resolutions
which were adopted, and The Attorney General was requested to present them to the
court." On Tuesday, May 31, 1910, the Supreme Court of the U.S. met for
"Proceedings on the Death of Mr. Justice Brewer" 218 U.S. vii.
The Attorney General presented the resolutions, and then delivered a eulogy which takes
up six pages in the official reports. More than one full page of the six is given to J.
Brewer's opinion in Holy Trinity. Here is the first page of The Attorney General's eulogy:
Justice Brewer's period of service in this court covered twenty
years. These two decades brought before this court some of the most important and
far-reaching questions which have ever been submitted for its decision, and in the
solution of these great problems Justice Brewer took a leading part. In the reports of
this period there are to be found 719 opinions written by Justice Brewer, in 157 of which
he dissented from the conclusions of the majority of the court. The limitations of this
occasion will permit only a brief reference to a few decisions which illustrate the
characteristics of his mind and the lucidity of his exposition.
One of the earliest of his recorded opinions was that in the case of the Church of
the Holy Trinity v. United States, 143 U.S. 457, where the court was called upon to
decide whether or not the act prohibiting the importation of foreigners and aliens under
contract to perform labor in the United States applied to an English Christian minister
who had come to the United States pursuant to an agreement with a Protestant Episcopal
Church in the city of New York. The opinion is of especial interest, not merely as a fine
discriminating construction of the statute, and the application of the principle that laws
must receive a sensible construction, and that where a literal construction leads to an
absurd conclusion the letter of the law must give way to the presumed intention of the
legislature; but because of the enunciation of the principle that "no purpose of
action against religion can be imputed to any legislation, state or national, because this
is a religious people."
"If we examine the constitutions of the various States," said the learned
justice, "we find in them a constant recognition of religious obligations. Every
constitution of every one of the forty-four States contains language which either directly
or by clear implication recognizes a profound reverence for religion and an assumption
that its influence in all human affairs is essential to the well-being of the community.
* * * *
"There is no dissonance in these declarations. There is a universal language
pervading them all, having one meaning; they affirm and reaffirm that this is a religious
nation. These are not individual sayings, declarations of private persons; they are
organic utterances; they speak the voice of the entire people.
* * * *
"These, and many other matters which might be noticed, add a volume of unofficial
declarations to the mass of organic utterances that this is a Christian nation. In the
face of all these, shall it be believed that a Congress of the United States intended to
make it a misdemeanor for a church of this country to contract for the services of a
Christian minister residing in another nation?"
After considering but three other of Justice Brewer's opinions,
The Attorney General concluded:
Justice Brewer was a son of a Christian missionary, and the son's life, like the
father's was one of service. For six and forty years he served the people, hearing causes
and judging "righteously between every man and his brother and the stranger that is
with him." And in the discharge of this great office he did ever obey the injunction
laid upon the judges of Israel by their great lawgiver:
"Ye shall not respect persons in judgment; but ye shall hear the small as well
as the great; ye shall not be afraid of the face of man, for judgment is God's." (1
The Chief Justice responded as follows:
During the years of my occupancy of a seat upon this Bench it has
been my sad duty to accept for the court tributes of the Bar in memory of many members of
this tribunal who have passed to their reward. As our Brother Brewer joins the great
procession, there pass before me the forms of Matthews and Miller, of Field and Bradley
and Lamar and Blatchford, of Jackson and Gray and of Peckham, whose works follow them now
that they rest from their labors. They were all men of marked ability, of untiring
industry, and of intense devotion to duty, but they were not alike. They differed as
"one star differeth from another star in glory." [1 Cor 15:41] Their names will
remain illustrious in the annals of jurisprudence. And now we are called on to deplore the
departure of one of the most lovable of them all.
He died suddenly, but not the unprepared death from which we pray to be delivered.
218 U.S. xv
You can tell that America was a Christian nation by the way the Supreme Court discussed
a Christian Supreme Court Justice who declared for a unanimous court that America was a
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