Lee v. Weisman


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"Separation" Defined and Refuted
By Examining Separationist Cases

Back in 1892, when Separationism, Darwinism, and Secularism were starting to gain a foothold in America, the U.S. Supreme Court took some time to declare in no uncertain terms that America is a Christian Nation (Holy Trinity v. U.S.). The Court's opinion in this decision can single-handedly reverse the effects of 12 years of government schooling civics classes. It is then a comparatively easy task to expose the foolishness of "separationism."

Separation: The Original Intent

The First Amendment reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .

As we show elsewhere, this Amendment was designed to prevent the Federal Government from creating:

  1. A church denomination officially recognized and protected by the sovereign over other denominations;
  2. A church denomination whose members alone were eligible to vote, to hold public office, and to practice a profession;
  3. A church denomination which compelled religious orthodoxy under penalty of fine and imprisonment;
  4. A church denomination able to expel dissenters from the commonwealth;
  5. A church denomination financed by taxes upon all members of the community; (even those not members of the denomination);
  6. A church denomination which alone could freely hold public worship and evangelize;
  7. A church denomination which alone could perform valid marriages, burials, etc.

This description of "church-state separation" is based on:

  • What the Founders did
  • What the Founders fought against
What they did. Christianity was made the center of American culture. The same Congress that approved the First Amendment immediately passed a resolution asking President Washington to lead the new nation in prayer and thanksgiving for the new constitution. The Supreme Court and the Congress both have always begun their work with prayer to the God of the Bible. School textbooks were filled with Biblical references and catechisms.
What they fought. The great debates of the day came largely out of America's experience with the Church of England, as Carl Bridenbaugh has shown. Nobody was urging that the Bible, prayer, and the Ten Commandments be removed from schools. No arguments were made that teaching that God created the earth was "an impermissible teaching of religion." Nobody believed that the government must never acknowledge that God exists, for fear that atheists would feel like "second-class citizens" (Allegheny v. ACLU). The Holy Trinity case accurately described the character of the nation when the Constitution was ratified. It was "a Christian nation." The American Revolution was a revolution of "dissenting" preachers against the Church of England, as John Adams explained in his celebrated letters to Jedediah Morse, William Tudor, and Benjamin Rush. 
Mitre and Sceptre,
Oxford University Press, 1962
"[N]o understanding of the eighteenth century is possible if we unconsciously omit, or consciously jam out, the religious theme just because our own milieu is secular."
"[R]eligion was a fundamental cause of the American Revolution."
Richard Hofstadter says of the book: "[P]uts the religious issue in the Revolution back closer to the center where it ought to be."

Separation: The Secularist Myth

Orwell could not have imagined a more successful flushing of history down the "memory hole" than Secular Humanists have pulled off. Secularists have convinced most Americans that the Constitution requires America to be a secular nation, a nation whose government does not take sides between believers and unbelievers. It is certainly true that the American government must never force atheists to go to any church, much less a government-approved denomination. Presbyterians will not be taxed to support Episcopalian clergy. But the First Amendment was not intended to keep the government from acknowledging that God exists and that all men have a duty to obey Him. "Freedom of religion" was not demanded by atheists, but by those for whom the freedom to worship publicly and devoutly was a religious passion.

"Freedom from religion" was not in the mind of a single person who signed the Constitution.

The religious character of the nation has been overthrown—largely since 1947. In order for Christians to go on the offensive and tear down the "wall of separation," these are the questions that should be asked of any "separationist" who denies that America is a Christian nation:
  • Did the Congress which drafted the First Amendment intend to separate God and country? To create a secular nation rather than a nation "under God?"
  • Do atheists have a constitutional right never to hear the government admit that
    • God exists
    • our nation ought to obey His Laws
    • our nation trusts in God
    • our nation is grateful to God for all our blessings
  • Do atheists have a constitutional right to keep Christians and Jews from seeing and learning God's Ten Commandments?
  • Do atheists have a constitutional right to keep Christians and Jews from knowing that our nation's laws were based on God's Ten Commandments?
  • Do atheists have a constitutional right not to be reminded by the courts that America is a Christian nation?
  • Do atheists have a constitutional right to go through the entire month of December without seeing any Christmas decorations?

Those who signed the Constitution would have said "NO!" Every single person who signed the Constitution would have laughed at such ideas. "Separationists" answer each of these questions "yes," and courts in recent years have agreed with them. Here are the most important of those cases.

| | Everson | | McCollum | | Torcaso | | Engel | | Abington | | Walz | | Lemon | | Stone | | Marsh | | Jaffree | | Aguillard | | Allegheny | | Lee v. Weisman | | Macintosh | |

Polygamists for Separation

Before looking at those separationist cases, we should review the first U.S. Supreme Court case to mention Jefferson's "wall of separation" metaphor in a substantive way.

Shortly after the "Civil War," Mormon polygamists challenged the constitutionality of statutes against polygamy.

"Separation of church and state," they said.
"Freedom of religion," they argued.

"Christian nation," the Court ruled.

The 1878 case of Reynolds v. U.S., 98 U.S. 145 (1878), cited Jefferson's letter to the Danbury Baptists, which is generally credited with the creation of the "wall of separation" metaphor:

'Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, - I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.

Sounds noble, but the Court turned down the polygamists' argument, saying in effect, if you're a polygamist or a witch doctor ready to sacrifice a virgin to the sun-god, "freedom of religion" and 50¢ will get you a cup of coffee. In a Christian nation you can believe anything you want to put between your ears, but—and this is surely more significant—the punitive power of the civil magistrate will not tolerate overt acts which are contrary to Christian morality.

In 1890 the U.S. Supreme Court again reviewed a challenge to Christian penal sanctions under the "wall of separation" metaphor.

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 in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.

And on this point there can be no serious discussion or difference of opinion. 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. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. 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.
Davis v. Beason, 133 U.S. 333, 341-43 (1890)

To criminalize unChristian acts is no offense against "freedom of religion," the Court said, because these acts do not even rise to the level of genuine religion.

The Court in Beason repeated the analysis of the Reynolds Court twelve years earlier:

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

Two years after Beason, the Court in Holy Trinity v. U.S. would declare at some length that America "is a Christian Nation."

Thus for well over 100 years after Jefferson used the "wall of separation" metaphor, the "wall" protected churches from the state, but never protected a rebellious or pagan state from the obligations of Christian morality. It was a "one-way" wall.

U.S. v. MACINTOSH, 283 U.S. 605 (1931)

Court Opinion and V&FT Analysis
Court Opinion at

This case is seldom mentioned in any discussion of church-state relations, but it is an important historical landmark. It symbolizes the transition from the 18th-century world of Holy Trinity to the 20th-century world of Secular Humanism and Concentration Camps. Macintosh effectively overruled the Holy Trinity case. Holy Trinity involved federal immigration authorities telling a church they could not hire a pastor from a foreign country. The Court, observing that this is "a Christian nation," declared that "no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people."

Macintosh is a truly horrifying case. Whereas in Holy Trinity the Court held that because this was a Christian nation, all laws were qualified by a higher law, and no law could be interpreted in such a way as to exclude a Christian minister from entering the United States, the Macintosh Court, fully cognizant of the rule in Holy Trinity, completely reverses the rule, refuses to place the nation "under God," and instead declares that the State-as-god is owed "unqualified allegiance." The State is made lord of the conscience. (cp. Acts 5:29)

Macintosh was a Christian from Canada who was a member of the faculty at the Yale Divinity School, who sought to become a naturalized citizen. He indicated that he would be unwilling to kill upon government orders if such orders conflicted with his religion. Many Christians today and in the past have taken a "My country right or wrong" approach. Thankfully, that kind of patriotic naïveté is dying out. Growing numbers of Christians, if ordered by Janet Reno to burn a hundred Fundamentalist men, women, and children and their house-church to the ground, would flatly refuse. Legally speaking, they are in the same treasonous category as Macintosh was in this case. Their loyalty is to a Foreign Sovereign (Philippians 3:20). Read more here. The Macintosh Court arrogantly claimed that such heavenly allegiance must be subordinated to the welfare-warfare State.

The applicant for naturalization here is unwilling to become a citizen with this understanding. He is unwilling to leave the question of his future military service to the wisdom of Congress, where it belongs, and where every native-born or admitted citizen is obliged to leave it. In effect, he offers to take the oath of allegiance only with the qualification that the question whether the war is necessary or morally justified must, so far as his support is concerned, be conclusively determined by reference to his opinion. [283 U.S. 605, 625] When he speaks of putting his allegiance to the will of God above his allegiance to the government, it is evident, in the light of his entire statement, that he means to make his own interpretation of the will of God the decisive test which shall conclude the government and stay its hand. We are a Christian people (Holy Trinity Church v. United States 143 U.S. 457, 470, 471 S., 12 S. Ct. 511), according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God. But, also, we are a nation with the duty to survive; a nation whose Constitution contemplates war as well as peace; whose government must go forward upon the assumption, and safely can proceed upon no other, that unqualified allegiance to the nation and submission and obedience to the laws of the land, as well those made for war as those made for peace, are not inconsistent with the will of God.

In 1946, Macintosh was overruled in Girouard v. U.S., 328 U.S. 61. Congress passed a law which said that people who refused to take up arms for the New World Order could still become American citizens if they would work for the government (but they wouldn't have to kill anyone directly). Thus, Naturalization of Brakel, 524 F.Supp. 300 (N.D. Ill. 1979) noted that Macintosh was "overruled (on strictly statutory grounds) in Girouard. . ." (at 301, emphasis added). Girouard did not bring back Holy Trinity. Congress can reinstate the law in Macintosh any time it wants. That the State is no longer "under God" has never been denied. That the Holy Trinity case is dead meat is widely recognized.

Historically, then, in 1946 we are at a place where the Humanist-infected Court believes that God is dead, and is looking for a paradigm or metaphor that can be used to purge this dead religion from American life and institutions. Just as Darwin provided a metaphor for a new religion, so the Everson Court would find this metaphor in Jefferson's letter to the Danbury Baptists.


Court Opinion and V&FT Analysis
Court Opinion at

This is perhaps the most important church-state case in this century; only the Lemon case may have been cited more frequently. The Court actually upheld expenditures which benefited Christians, but "dicta" in the opinion has had a tremendous influence. Here are the words most frequently quoted:

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertain- [330 U.S. 1, 16] ing or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.' Reynolds v. United States, supra, 98 U.S. at page 164.

Everson at 15-16 While there is some truth here, the language in this important paragraph is ambiguous, and its ambiguity has been exploited by Justices with a secularist axe to grind.

• "Religious Activities" — "No tax in any amount, large or small, can be levied to support any religious activities," the Court says. Really? James 1:27 says the essence of true religion is taking care of widows and orphans. Religious organizations have been carrying out this religious activity for centuries. To say "no tax" can be levied to support the care of widows is to declare the entire Social Security system "unconstitutional." (Perhaps rightly so.)

Religion and State — Jefferson spoke of a "wall of separation between church and state," but the Court here repeatedly speaks of a separation between "religion" and state, as though the State cannot distinguish between religion and non-religion, between a Christian parent and a pagan who sacrifices his virgin daughter to the sun-god. Subsequent courts have used this language to separate the State from God and from that obedience to God which we call "religion." Not a single person who signed the Constitution had this in mind.

Note the citation of Reynolds by the Everson Court.. This is laughable, enough to embarrass a second-year con-law student. Justice Rehnquist exposed the Everson theory:

Reynolds is the only authority cited as direct precedent for the "wall of separation theory." 330 U.S., at 16. Reynolds is truly inapt; it dealt with a Mormon's Free Exercise Clause challenge to a federal polygamy law.

Wallace v. Jaffree, 472 U.S. 38 (1985), note 1 of his dissent.

But the inaptly-applied metaphor has stayed with us. In particular, the dissenters in Everson have been cited frequently; in Abington at 374 U.S. 203, 217, McGowan in note 18, and by J, Blackmun, with whom J. Stevens and J. O'Connor join, concurring in Lee v. Weisman:

The dissenters agreed: "The Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion." 330 U.S., at 31-32 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.).  Lee v. Weisman 505 U.S. 577, 599

Not a single member of the "Religious Right" believes that the Federal Government should levy taxes to "support" any churches. But in ways so numerous it would be difficult to count them, the men who signed the Constitution believed the government was ethically obligated to obey the will of God, and to endorse belief in God and obedience to His Commandments. See some of those ways here.

The dissenters in Everson believed that the "wall" metaphor should have been more strictly adhered to. Their views would come to prevail. Everson would unleash a communist-style pogrom against religious beliefs in the public square.


Court Opinion at

Are voluntary religious activities unconstitutional? Yes, according to separationists, because such activities remind atheists that there is a God, even if atheists are not a part of these activities. The Champaign [County, Ill.] Board of Education permitted

interested members of the Jewish, Roman Catholic, and a few of the Protestant faiths . . . to offer classes in religious instruction to public school pupils in grades four to nine inclusive. Classes were made up of pupils whose parents signed printed cards requesting that their children be permitted to attend;[2] they were held weekly, thirty minutes for [333 U.S. 203 , 208] the lower grades, forty-five minutes for the higher. The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools.[3] The classes were taught in three [333 U.S. 203 , 209] separate religious groups by Protestant teachers,[4] Catholic priests, and a Jewish rabbi . . . .

The Court held that permitting students to attend voluntarily religious classes at no expense to the taxpayer, was an "establishment of religion." The Everson case had been decided the previous year, and the Court in McCollum built on that foundation, holding that permitting voluntary religious activities

falls squarely under the ban of the First Amendment . . . as we interpreted it in Everson v. Board of Education, 330 U.S. 1. There we said:

'Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.[6] Neither can force or influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.[7] Neither a state nor [333 U.S. 203 , 211] the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State." Id., at pages 15, 16 of 330 U.S., at page 511 of 67 S.Ct.

The majority in the Everson case, and the minority as shown by quotations from the dissenting views in our notes 6 and 7, agreed that the First Amendment's language, properly interpreted, had erected a wall of separation between Church and State.

Justice Reed, in dissent, raised some important points, which are found here. Justice Felix Frankfurter, concurring, delivered the following opinion, in which the Everson dissenters joined:

We dissented in Everson v. Board of Education, 330 U.S. 1, 512, because in our view the Constitutional principle requiring separation of Church and State compelled invalidation of the ordinance sustained by the majority. Illinois has here authorized the commingling of sectarian with secular instruction in the public schools. The Constitution of the United States forbids this.

Does the U.S. Constitution say anything at all about public schools and "sectarian education?" Does the Constitution give the federal judiciary the power to dictate which classes will be held in Champaign County Illinois? Separationists say "yes." Frankfurter continued:

The case, in the light of the Everson decision, demonstrates anew that the mere formulation of a relevant Constitutional principle is the beginning of the solution of a problem, not its answer. This is so because the mean- [333 U.S. 203 , 213] ing of a spacious conception like that of the separation of Church from State is unfolded as appeal is made to the principle from case to case. We are all agreed that the First and the Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.'

All nine of us.

The Court's language is revealing — and critical. The Court says the First Amendment now forbids much more than the wildest fears of Church of England vestrymen. It now forbids permitting students voluntarily to attend classes which teach religion, even if these classes are paid for by the various churches.

There is a hostility toward religion in this opinion, and its authors were laying the foundation to remove prayer and Bible reading from schools, as the Court would do in the early 1960's. The Founding Fathers, on the other hand, believed that one of the most important purposes of public education was to teach religion and morality. Read their statements here.

TORCASO v. WATKINS, 367 U.S. 488 (1961)

Court Opinion and V&FT Analysis
Court Opinion at

The day after the U.S. Constitution was ratified, every state in the union believed that an oath was an appeal to God. Since atheists did not believe in God, they could not take an oath, and so atheists were not permitted to hold public office or testify in courts. The First Amendment was designed to keep the federal government from interfering in the way states understood their duties to God. "Congress shall make no law . . . ."

All of that changed in 1961 when the Supreme Court determined that they had the power to amend a state constitution where that constitution dealt with religion. One of the requirements of public office holders was a belief in God. The Court in Torcaso ruled that requirement  in the Maryland Constitution "unconstitutional." Apparently it took 170 years before anyone realized that such provisions in state constitutions were "unconstitutional," even though most state constitutions were written by the same men who wrote the federal constitution.

That well-worn paragraph from Everson was again quoted. The "wall of separation" between churches and the state was further deconstructed into a wall of separation between God and State.

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion." Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.11
Torcaso, 367 U.S. 488, 495

Footnote 11 is famous for declaring that "Secular Humanism" is one of "those religions" which is not founded on a belief in God. Thus, in deference to the religion of atheism, oaths must be secular, and cannot be religious, that is, Christian. This footnote has proven to be a great embarrassment to Secular Humanists. Find out why.

There can be no doubt that those who demanded a Bill of Rights before they would ratify the Constitution were not demanding that the federal judiciary be given the power to tell the states what religious view of oaths they should have. When they spoke of an "establishment of religion," they were speaking of the establishment of a particular denomination of Christianity, such as the Church of England, or the Methodist Church. Read their statements here.

ENGEL v. VITALE, 370 U.S. 421 (1962)

Court Opinion at
Justice Stewart's Dissent

Every session of Congress begins with prayer. Do Christians in schools have the same rights? Because of this case, No; they're not even allowed to read the prayers from Capitol Hill (State Brd. of Educ v. Netcong, 262 A.2d 21 (1970).

The Annals of Congress for Sept 25, 1789 record these discussions by the same Congress which approved the wording of the First Amendment, concerning the proclamation of a national day of Thanksgiving:

Mr [Elias] Boudinot said he could not think of letting the session pass over without offering an opportunity to all the citizens of the United States of joining with one voice in returning to Almighty God their sincere thanks for the many blessings He had poured down upon them. With this view, therefore, he would move the following resolution:

Resolved, That a joint committee of both Houses be directed to wait upon the President of the United States to request that he would recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a Constitution of government for their safety and happiness . . . .

Mr. [Roger] Sherman justified the practice of thanksgiving, on any signal event, not only as a laudable one in itself but as warranted by a number of precedents in Holy Writ: for instance, the solemn thanksgivings and rejoicings which took place in the time of Solomon after the building of the temple was a case in point. This example he thought worthy of Christian imitation on the present occasion; and he would agree with the gentleman who moved the resolution. Mr Boudinot quoted further precedents from the practice of the late Congress, [he was a member of the Continental Congress from 1778-79 and 1781-84 and President of the Continental Congress 1782-83] and hoped the motion would meet a ready acquiescence. [Boudinot was also founder and first president of the American Bible Society.] The question was now put on the resolution and it was carried in the affirmative.

Does this sound like a group of statesmen who would object to the New York education authorities authorizing a moment for students to say the following prayer:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.
Engel v. Vitale, 370 U.S. 421, 422 (1962)

— especially if atheists were allowed to excuse their children from saying this prayer? Such was the conclusion of the separationist Court in Engel v. Vitale, which ruled such an opportunity for voluntary prayer an "unconstitutional" establishment of religion.

The Court admitted that " . . . the schools did not compel any pupil to join in the prayer over his or her parents' objection. (Engel at 423).

Nevertheless, the Court overruled the clear intent of the Congress which approved the wording of the First Amendment:

Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the [First Amendment]. . . . [It] ignores the essential nature of the program's constitutional defects. . . . Prayer in its public school system breaches the constitutional wall of separation between Church and State.
Engel, at 430.

The Latin phrase "ipse dixit" is useful in these contexts.

It is true that when an ecclesiastical denomination must resort to government coercion to compel citizens to attend its services, that denomination has been degraded. But nobody in this case was coerced. No denomination was favored over any other denomination, any more than Washington's proclamation of a day of prayer was an establishment of a state church. The Court hates religion. There's no getting around this fact. The Court asserted, "[A] union of government and religion tends to destroy government and to degrade religion." George Washington spoke for the Founding Fathers when he declared, "[T]rue religion affords to government its surest support." Read their declarations here.


Court Opinion at
Justice Stewart's Dissent

When Roger Sherman quoted the Bible in urging the first Congress to approve a National Day of Prayer, he selected the passages and read from any version he chose. Pennsylvania schools passed a policy which gave students the same freedom:

Each school, either collectively or in classes, shall be opened by the reading, without comment, of a chapter in the Holy Bible and/or the use of the Lord's Prayer. Participation in the opening exercises, as directed by the statute, is voluntary. Participation in the opening exercises, as directed by the statute, is voluntary. The student reading the verses from the Bible may select the passages and read from any version he chooses. . . .
Abington, at 207, 211n.4.

The Supreme Court finds such freedom to offend the Constitution. Never mind that

During the period in which the exercises have been conducted the King James, the Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish Holy Scriptures. There are no prefatory statements, no questions asked or solicited, no comments or explanations made and no interpretations given at or during the exercises. The students and parents are advised that the student may absent himself from the classroom or, should he elect to remain, not participate in the exercises.
Abington at 207.

Virtually every single person who signed the Constitution believed that public schools ought to teach the Bible in a non-sectarian manner. Read their statements here.

WALZ v. TAX COMSN. OF CITY OF NEW YORK , 397 U.S. 664 (1970)

Court Opinion at

This case concerned tax-exemption for churches, and as is often the case, even when the Supreme Court seems to rule in favor of religion, they have succeeded in digging its grave a little deeper. Justice Brennan, concurring, declared:

Their principal effect is to carry out secular purposes—the encouragement of public service activities and of a pluralistic society. During their ordinary operations, most churches engage in activities of a secular nature that benefit the community; and all churches by their existence contribute to the diversity of association, viewpoint, and enterprise so highly valued by all of us. The means churches use to carry on their public service activities are not 'essentially religious' in nature. They are the same means used by any purely secular organization—money, human time and skills, physical facilities. It is true that each church contributes to the pluralism of our society through its purely religious activities, but that state encourages these activities not because it champions religion per se but because it values religion among a variety of private, nonprofit enterprises that contribute to the diversity of the Nation.  [397 U.S. 664 , 692-93]
Second, government grants exemptions to religious organizations because they uniquely contribute to the pluralism of American society by their religious activities. Government may properly include religious institutions among the variety of private, nonprofit groups that receive tax exemptions, for each group contributes to the diversity of association, viewpoint, and enterprise essential to a vigorous, pluralistic society. See Washington Ethical Society v. District of Columbia, 101 U.S.App.D.C. 371, 373, 249 F.2d 127, 129 (1957)  [397 U.S. 664 , 689]

("Ethical Society" is a branch of the religion of Secular Humanism. That case gave them tax exemption, and was cited in Torcaso's infamous "Footnote 11.")

In other words, the State no longer grants tax-free status to churches because we render unto Caesar the things that are Caesar's and the things that are God's to God, nor because the State is "under God" and churches are a holy sanctuary which even the greatest emperors would not breach, but because the Humanistic Supreme Court magnanimously views churches as having a tolerable role to play in the creation of their new "pluralistic" secular society.

Justice Douglas would throw out the exemptions entirely, but would agree with Justice Brennan on the mandate for "pluralism":

[O]ne of the mandates of the First Amendment is to promote a viable, pluralistic society and to keep government neutral, not only between sects, but also between believers and nonbelievers. [397 U.S. 664 , 716]

It is true that the Founding Fathers were not hostile toward non-Christian religions. See their comments here. And of course, the Founders believed in denominational pluralism, in which each Christian denomination is on an equal legal footing. But the Framers did not espouse pure pluralism. Non-Christian religions could exist only insofar as they stayed within Christian boundaries — no sacrificing virgins, no polygamy, no pagan perversions. See the evidence here. We were one nation "under God" — a particular God, with particular moral standards. Pluralism is a myth. It is political polytheism. America was a distinctly Christian nation. Read the Founders' views here.

Walz held that tax exemptions had a long history and were therefore constitutional. Justice Douglas challenged the Court by noting that school prayer had an equally long history, but that did not stop the Court from throwing prayer out of schools. Despite its apparently favorable ruling, Walz is a dangerous case. And Lemon v. Kurtzman proves it.

LEMON v. KURTZMAN, 403 U.S. 602 (1971) 

Court Opinion at

Taking its cue from the Walz case, this case may be more frequently cited than Everson. The so-called "Lemon Test" dominated church-state cases for more than 20 years.

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968);  finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674. [403 U.S. 602, 612-13]

This is certainly convenient for Secular Humanists. Every legislation must have for its purpose a goal which is acceptable to Humanists, its primary effect must not be to advance the interests of those who oppose Humanism, and it must not bring the government "under God" in an "excessive" way. Is there any wonder that Secularism has advanced so?

How does this "secular purpose/secular effect" test conform to the principles and practice of the Founding Fathers? Here is how James Madison argued against a very important piece of legislation. He opposed it

12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of (revelation) from coming into the Region of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error.

Madison felt no compulsion to muster up a "secular purpose." He said the bill should be defeated precisely because it did not advance "the light of Christianity." Today, however, legislation will be struck down by the Court if one of those who sponsored the bill hoped it might benefit Christianity in some in indirect way. (Wallace v. Jaffree, 1985; Edwards v. Aguillard, 1987)

The "secular purpose" and "secular effect" prongs of the "Lemon test" are corollaries of the view that society should be secular and religion kept out of the public square. As Justice Brennan would write in Marsh v. Chambers (1983), the "Lemon test"

embodies a judgment, born of a long and turbulent history, that, in our society, religion "must be a private matter for the individual, the family, and the institutions of private choice . . . ." Lemon v. Kurtzman, 403 U.S., at 625.

It is true that the Framers gave no power to the new government to tell churches which scent of incense they must use. Many other questions of "worship" or belief are rightly considered "private" questions. But the Founders also agreed with Ben Franklin, who knew quite well the value of Christianity to society, and who, in the context of teaching history to the youth of Philadelphia, said:

History will also afford the frequent opportunities of showing the necessity of a public religion, from its usefulness to the public; the advantage of a religious character among private persons; the mischiefs of superstition, &c. and the excellency of the Christian religion above all others, ancient or modern. (Benjamin Franklin, Proposals Relating to the Education of Youth in Pennsylvania (Philadelphia, 1749), p. 22.)

The Founders believed in public religion. Official proclamations of national days of prayer and public appeals to the God of the Bible in the Addresses and Orders of every single Congress and President this nation has had since its inception in 1776 (and before) show that no one intended the Constitution to exile Christianity to the world of the "noumenal" and require every law to pass in review before the religion of Secular Humanism.

You might think that you have passed "the Lemon Test" if your legislation explicitly states your secular purpose. But think again. Kentucky decided her schools should teach good citizenship by teaching the Ten Commandments. A copy of the Ten Commandments, paid for by private funds, was to be hung in each classroom. That's all. Just hanging on the wall in case some student might want to learn them. A plaque under each poster read,

"The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States."

Can any student claim to know much about Western Civilization and the Common Law of the United States without having some familiarity with the Ten Commandments. It is not possible. Nevertheless, the Court prohibited Kentucky from hanging the posters of the Ten Commandments.

The pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.

Of course it was! What's wrong with that? This is a Christian nation, after all. As Chief Justice Burger noted in Lynch v. Donnelly (the Nativity Scene case),

The very chamber in which oral arguments on this case were heard is decorated with a notable and permanent—not seasonal—symbol of religion: Moses with the Ten Commandments. [465 U.S. 668, 677]

But times have changed:

In Abington School District v. Schempp, 374 U.S. 203 (1963), this Court held unconstitutional the daily reading of Bible verses and the Lord's Prayer in the public schools, despite the school district's assertion of such secular purposes as "the promotion of moral values, the contradiction to the materialistic trends of our times, the perpetuation of our institutions and the teaching of literature." Id., at 223.

If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. [This] is not a permissible state objective under the Establishment Clause. [T]he mere posting of the copies under the auspices of the legislature provides the "official support of the State...Government" that the Establishment Clause prohibits.  [449 U.S. 39, 41-42]

This decision is more than ridiculous; it is evil. Not a single person who signed the Constitution would agree with the idea that the Federal Government has the power to order municipal schools to remove copies of the Ten Commandments from classroom walls. Read what the Founders said.

MARSH v. CHAMBERS, 463 U.S. 783 (1983)

Court Opinion and V&FT Analysis
Court Opinion at

There are apparently some limits to how blatantly a-historical the Court will get. This case may illustrate that limit. At first glance, this case appears to break from the anti-Christian tack the Court has been following. It concerned a challenge to the practice of the Nebraska Legislature of beginning each session in prayer. The Continental Congress, the very Congress that approved the First Amendment, and virtually every state in the Union, approved legislative prayer. It existed before the Constitution was written, and for 200 years since. Much as they may have wanted to, how could the Court have called it "unconstitutional?" Justice Brennan, dissenting, astutely noted, "If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction." (103 S.Ct. 3330 at 3351) Could the Court have braved such outcry?  Had there been any real prayer going on in the Nebraska Legislature, the Court might have found a way.

Luckily for the Court, complaints had been lodged years earlier that the prayers were "too explicitly Christian" (id. at 3339n.8), and so the Chaplain "removed all references to Christ" and replaced them with "elements of the American civil religion." (opinion of the Court, at 3336n.14)  The prayers thus had a secular purpose and a secular effect. Had these prayers been explicitly Christian they would have been banned. (Compare Allegheny v. ACLU, below, in which the Christian Nativity Scene was banned, but the Menorah was allowed to stand.)

The dissent astutely recognized that had the "Lemon Test" been applied, the uninterrupted 200-year tradition of legislative prayer would have had to come to an end. But tradition overruled Lemon in this unique case. As the Court would say in Edwards v. Aguillard,

The Lemon test has been applied in all cases since its adoption in 1971, except in Marsh v. Chambers, 463 U.S. 783 (1983), where the Court held that the Nebraska Legislature's practice of opening a session with a prayer by a chaplain paid by the State did not violate the Establishment Clause. The Court based its conclusion in that case on the historical acceptance of the practice. (note 4)

(And the fact that the prayers had already been watered down into "American civil religion.")

The Court got back on track with this case. An Alabama law authorized a one-minute period of silence for students. In striking down the law, the appeals court and the Supreme Court agreed: "It is not the activity itself that concerns us; it is the purpose of the activity that we shall scrutinize." [472 U.S. 38, 47n.30]

The "purpose" was found in the statements of one of the sponsors of the bill who hoped the students would use the one minute of silence to pray. That was all the Court needed to hear. Chief Justice Burger, dissenting, was alarmed that the vote of the entire Alabama Legislature could be overturned because of this one legislator's Christian hopes.

Curiously, the opinions do not mention that all of the sponsor's statements relied upon—including the statement "inserted" into the Senate Journal—were made after the legislature had passed the statute; indeed, the testimony that the Court finds critical was given well over a year after the statute was enacted. As even the appellees concede, see Brief for Appellees 18, there is not a shred of evidence that [472 U.S. 38, 87] the legislature as a whole shared the sponsor's motive or that a majority in either house was even aware of the sponsor's view of the bill when it was passed. The sole relevance of the sponsor's statements, therefore, is that they reflect the personal, subjective motives of a single legislator. No case in the 195-year history of this Court supports the disconcerting idea that postenactment statements by individual legislators are relevant in determining the constitutionality of legislation.

They are only relevant if they are Christian, it would appear. Had the law been passed because its sponsors believed it conformed to the Secular ideals of the religion of Secular Humanism, there would have been no problem.

The Founding Fathers did not believe it inappropriate for legislators to harbor hopes that students would pray. In fact, the Framers believed that government had a duty to encourage and promote piety and true religion. Read their hopes here.

EDWARDS v. AGUILLARD, 482 U.S. 578 (1987)

Court Opinion and V&FT Analysis
Court Opinion at

This is another case in which Big Brother looks into the heart and overrules entire Legislatures if it finds Christianity in one legislator's heart. But the real dynamic in this case is the Court's belief that presenting scientific evidence against Darwinism—scientific facts which would tend to support the historical record in Scripture—constitutes an "establishment of religion." After all, "we all know" who wants these ideas taught in schools.

The court held that there can be no valid secular reason for prohibiting the teaching of evolution, a theory historically opposed by some religious denominations. The court further concluded that "the teaching of `creation-science' ... as contemplated by the statute, involves teaching `tailored to the principles' of a particular religious sect or group of sects." Id., at 427 (citing Epperson v. Arkansas, 393 U.S. 97, 106 (1968)). The District Court therefore held that the Creationism Act violated the Establishment Clause either because it prohibited the teaching of evolution or because it required the teaching of creation science with the purpose of advancing a particular religious doctrine. [482 U.S. 578, 582]

This is simply a war on the beliefs of Fundamentalist Christians, by a Court that does not believe them. Can you imagine the court attacking any other religion in this manner? Suppose the Court had said

The court held that there can be no valid secular reason for prohibiting the teaching of white supremacy, a theory historically opposed by some religious denominations. The court further concluded that "the teaching of `honesty, fairness, and diligent labor' as contemplated by the statute, involves teaching `tailored to the principles' of a particular religious sect or group of sects." The Court therefore held that the Good People Act violated the Establishment Clause either because it prohibited the teaching of Racism or because it required the teaching of goodness with the purpose of advancing a particular religious doctrine.

Besides, was it the case that the entire Louisiana Legislature was acting only to advance the tenets of fundamentalists? That they knew this legislation was unconstitutional and nevertheless violated their oaths of office and lied about it? The only evidence to support this claim rested in the fact that the bill's sponsor hoped he could draft legislation with a secular purpose and a secular effect (Lemon) which would also conform to his religious motivations. The evidence in fact indicates he had a tough time convincing his colleagues to grant "equal time" to scientific evidence against Darwinism.

Thomas Paine on Creationism in schools.


Court Opinion at

The opinion of the Court begins with Everson, and concludes that the County acted unconstitutionally by permitting a private religious group to place a nativity scene on public property. Such a display could give the impression that the government "endorsed" Christianity.

Of course, the word "endorsement" is not self-defining. Rather, it derives its meaning from other words that this Court has found useful over the years in interpreting the Establishment Clause. Thus, it has been noted that the prohibition against governmental endorsement of religion "preclude[s] government from conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred." Wallace v. Jaffree, 472 U.S., at 70 (O'CONNOR, J., concurring in judgment) (emphasis added). Accord, Texas Monthly, Inc. v. Bullock, 489 U.S., at 27, 28 (separate opinion concurring in judgment) (reaffirming that "government may not favor religious belief over disbelief" or adopt a "preference for the dissemination of religious ideas"); Edwards v. Aguillard, 482 U.S., at 593 ("preference" for particular religious beliefs constitutes an endorsement of religion); Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring) ("The fullest realization of true religious liberty requires that government . . . effect no favoritism among sects or between religion and nonreligion"). [492 U.S. 573, 593]

This is an accurate and helpful understanding of the Court's "endorsement" test. It has absolutely nothing whatsoever to do with an accurate or useful understanding of the Original Intent of the Framers of the Constitution.

Sectarian differences among various Christian denominations were central to the origins of our Republic. . . .  Precisely because of the religious diversity that is our national heritage, the Founders added to the Constitution a Bill of Rights, the very first words of which declare: "Congress shall make no law respecting an establishment of religion, or [492 U.S. 573, 590] prohibiting the free exercise thereof . . . ." Perhaps in the early days of the Republic these words were understood to protect only the diversity within Christianity, but today they are recognized as guaranteeing religious liberty and equality to "the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism." Wallace v. Jaffree, 472 U.S., at 52.

Read what the Supreme Court said about "infidels" in 1844. "But today," whenever the Court discusses what the Founding Fathers believed about Christianity, it immediately follows with "but today . . . ."

Every single person who signed the Constitution believed that it was appropriate for the State to "endorse" and "promote" "true religion. The Court simply does not bind itself by the Original Intent of the Authors of the Constitution.

On the contrary, the Constitution mandates that the government remain secular. . . .  [492 U.S. 573, 610]

Every single person who signed the Constitution believed that government was an ordinance of God, with an explicitly religious foundation. Gain understanding of the Founders here. Since America was a nation "under God," no one believed that the government must remain secular, that is, indifferent to its relationship to God. Unbelievers have always been at a legal disadvantage in America because a Christian nation like America is predicated on belief in God.

LEE v. WEISMAN, 505 U.S. 577 (1992)

Court Opinion and V&FT Analysis
Court Opinion at

This case struck down the last outpost of prayer in public schools: The Graduation Ceremony. If the Founders believed the government should not compel religious observances, and if the Court in Allegheny believed that the government could not even give an appearance of "endorsing" religious observances, the Court in Weisman concluded that the government could not permit religious observances in public because an atheist might witness it and be plunged into the torturous depths of psychological vexation. The "psychological coercion test" gives a lone atheist the right to nullify the free exercise of an entire community of theists.

School principals in the public school system of the city of Providence, Rhode Island, are permitted to invite members of the clergy to offer invocation and benediction prayers as part of the formal graduation ceremonies for middle schools and for high schools. The question before us is whether including clerical members who offer prayers as part of the official school graduation ceremony is consistent with the Religion Clauses of the First Amendment . . . .  [505 U.S. 577, 580]  
It has been the custom of Providence school officials to provide invited clergy with a pamphlet entitled "Guidelines for Civic Occasions," prepared by the National Conference of Christians and Jews. The Guidelines recommend that public prayers at nonsectarian civic ceremonies be composed with "inclusiveness and sensitivity." . . . The school principal, petitioner Robert E. Lee, invited a rabbi to deliver prayers at the graduation exercises for Deborah's class. Rabbi Leslie Gutterman, of the Temple Beth El in Providence, accepted. The principal gave Rabbi Gutterman the pamphlet before the graduation, and advised him the invocation and benediction should be nonsectarian.
Rabbi Gutterman's prayers were as follows:

    "God of the Free, Hope of the Brave:
    "For the legacy of America where diversity is celebrated and the rights of minorities are protected, [505 U.S. 577, 582] we thank You. May these young men and women grow up to enrich it.
    "For the liberty of America, we thank You. May these new graduates grow up to guard it.
    "For the political process of America in which all its citizens may participate, for its court system where all may seek justice, we thank You. May those we honor this morning always turn to it in trust.
    "For the destiny of America, we thank You. May the graduates of Nathan Bishop Middle School so live that they might help to share it.
    "May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled.

    "O God, we are grateful to You for having endowed us with the capacity for learning which we have celebrated on this joyous commencement.
    "Happy families give thanks for seeing their children achieve an important milestone. Send Your blessings upon the teachers and administrators who helped prepare them.
    "The graduates now need strength and guidance for the future; help them to understand that we are not complete with academic knowledge alone. We must each strive to fulfill what You require of us all: to do justly, to love mercy, to walk humbly.
    "We give thanks to You, Lord, for keeping us alive, sustaining us, and allowing us to reach this special, happy occasion.
    AMEN"   [505 U.S. 577, 582]

These non-sectarian prayers were tame compared to the explicitly Christian prayers routinely offered by the men who drafted the Constitution and served in the highest offices in the land. Read some of them here. Justice Souter, in his concurring opinion, acknowledged that the Founders allowed, encouraged, and participated in such prayers, but accused the Framers of not understanding the meaning of the Constitution they themselves had authored:

[T]hose 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. [Such acts were] patently unconstitutional by modern standards. If the early Congress's political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine . . . .

The Secular Court contends that their understanding of the constitutionality of prayer is more accurate than that of those who created the document.

The Weisman Court went beyond the Lemon Test, and beyond the "endorsement" test (Allegheny), and announced the "psychological coercion test." Under this test, if one person finds himself uncomfortable in the presence of an acknowledgement of God, then that activity is unconstitutional. One 14-year old objected to remaining respectfully silent during a theistic prayer, and her phobia eliminated the opportunity for the rest of the community to put into action their agreement with George Washington:

[I]t 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. . . .
Proclamation for a National Day of Thanksgiving, October 3, 1789

The illogic and departure from historic precedent by the Court is ably spelled out in the dissent of Justice Scalia, in which Justices Rehnquist, White, and Thomas joined. Read it here.

Observing the evolution of the Court's many "tests" and the increasing hostility toward Christianity, 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.
(to Judge Spencer Roane, Sept. 6, 1819.)

The "separation of church and state" as promulgated by the Supreme Court, is a myth.

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Paradigm Shift


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