Denial of Equal Rights to Religious Minorities and Non-Believers in The United States


Yale Law Journal, vol. 39, pp. 659-681 (1930)

  1. Christianity Part of Our Law
  2. Are Oaths of Believers Alone Believable?
  3. Official Oaths Founded on Christian Belief
  4. Compelling Marriage in the Face of the Church
  5. Sunday Laws
  6. Blasphemy
  7. Bible Reading in the Schools


Actual deference is accorded federally, and in the states generally, to Christianity as:

The Constitution never gave unbelievers the right not to be offended by the fact that this is a Christian nation. They have the right to "believe" and to "worship" according to their own religion and to not be taxed to support Christian churches. That is all.
(1) a religious belief, in manner offensive to opposing creedists and non-believers;
(2) a Church established for such believers, in some states; and
(3) a Church supported by militantly evangelical laws, in a few states.
It is ridiculous to blame "religious hatred" on a religion which is universally admitted to denounce hatred and make love of enemies a religious requirement in the strongest possible terms. Violence and bigotry in the name of Christianity will be eradicated by more Christianity, not more atheism.

Religious hatred has been engendered by this deference to the Church, resulting in such movements as the Know Nothing Party,[8] the American Protective Association, and Ku-Kluxism,[9] and in the present day participation of the Church in state affairs, through organizations like the Lord’s Day Alliance and the Anti-Saloon League, as in the Protestant Church’s part in the late presidential campaign against Governor Smith based on his religion.

When Chancellor Kent of New York said, "The people of this state in common with the people of this country, profess the general doctrine of Christianity as a rule of their faith and practice,"[10] he meant "in due form of law," as it had been generally understood under Lord Coke’s dictum that "Christianity is part and parcel of the Common Law,"[11] and not merely in recognition of the palpable fact that the majority were Christians whose practices must be respected. For in this decision the learned judge set down his dictum that those of exotic beliefs were "impostors" (mentioning the Moslems, then having more votaries in the world than Christianity), and that such infidels had no rights before a court in a Christian land which Americans were bound to respect.[12] Worse than all, this opinion is a key note, often cited to this day by appellate courts, in deciding religious controversies. There is thus imposed on religious minorities a subserviency insulting to their patriotism.

Following a unanimous opinion of the Supreme Court in Church of Holy Trinity v. United States in 1892,[13] Mr. Justice Brewer, in the Haverford Lectures in 1904, showed with ample citations and authorities that this is in fact a "Christian nation."[14] He approved the opinion of Mr. Justice Story in the Girard College case[15] as to Christianity: "Its divine origin and truth are admitted," and for that reason, "Christianity must be neither impugned nor repudiated."

And just how is it that Lord Coke's dictum ("Christianity is part and parcel of the Common Law") has been "disposed of as mere rhetoric and not law"? By the author's own admission, only a few states had "disposed" of it. This is typical of secularist agit-prop. It incarnates its own wishful thinking into present reality, making those who disagree with secular dreams feel backward and impotent.

Lord Coke’s dictum, now disposed of as mere rhetoric and not law, has been recognized in many decisions of our courts,[16] nicely discriminated in some few states, repudiated in others,[17] but in several states pressed to its logical conclusion. Thus in Maryland to this very day, according to its highest Court of Appeal:

"The Sabbath is emphatically the day of rest and the day of rest here is the Lord’s Day or the Christian Sunday. . . . Ours is a Christian community, and the day set apart as the day of rest is the day consecrated by the resurrection of our Saviour. . . . And if the Christian religion is benefited and fostered by this day of rest, as it undoubtedly is, there is all the more reason for enforcement of laws that help to preserve it."[18]

In some states constitutional provisions and statute and bench-made law call for the observance of Christian doctrine and dogma by its citizens. In so doing they deny citizens their inalienable rights and "exclude in whole or part, certain persons not belonging to such adopted religion from participating in public honors, trusts, emoluments, privileges and immunities."[19] Religious proscriptions are found in the following:

The following sectarian practices, moreover, are uniformly used by both federal and state authorities:

Article VII of the Constitution contains these words, and Hartogensis is correct to see this as an official endorsement of Christianity. The only reason these long-standing "sectarian" practices have not been struck down by the secularist Court is because the Court says these practices no longer have any vital theological meaning for most Americans. Sad, but perhaps true. Not true, however, of the Founding Fathers.

Considering the fact that the history of America’s colonies shows that they were established to further Christianity, it is not remarkable that the newly constituted states began to establish Christianity during and immediately after the Revolutionary War. In all the state constitutions there is mention of God, but in none of them is there mention of Christ or the Holy Trinity,[24] although there are mentions of Christianity and the duty to worship God. Yet it may be argued with Mr. Justice Brewer that, because of religious references in certain of these constitutions, especially to Christian beliefs and dogmas, and likewise in decisions of appellate courts, that reference is thereby made to the God of the Christians.

All of these state constitutions, drafted both before and after the federal constitution and the First Amendment, are compelling evidence that the modern doctrine of "separation of church and state" is a complete myth.

By the constitution of South Carolina of 1778, "the Christian Protestant religion was constituted and declared to be the established religion of the State."[25] Under the constitution of Maryland of 1776, the legislature may in its own discretion lay a general and equal tax for the support of the Christian religion. The constitution of Massachusetts of 1780 was mandatory, requiring municipalities to make provision for the public worship of God and the support of Protestant teachers of religion. In Vermont’s constitutions of 1793 and 1813 every denomination of Christians "ought to observe the Lord’s Day and keep up some kind of religious worship." By New Jersey’s constitution of 1776, no Protestant inhabitant shall be denied the enjoyment of his civil rights. Both Connecticut (1818) and New Hampshire (1912) not only state that every denomination of Christians shall be equally under the protection of the law, but New Hampshire allows municipalities to levy a tax to support Protestant Christian schools,[26] and Connecticut prescribes rules for Christian church membership. The Mississippi constitution prescribes that the Holy Bible must not be excluded from the public schools.[27] More liberally the constitutions of Nebraska and Ohio prescribe that laws shall be passed to protect every kind of religious worship.

This is wishful thinking. The fact that one man did not believe in the Deity of Christ says nothing about the rest of the State of Virginia. And Jefferson's views about the Deity of Christ prove nothing about whether he believed the federal judiciary had the power to order municipal schools to remove copies of the Ten Commandments from classroom walls. In 1930 the "cutting edge" of secularist trendiness was to speak of "the morals of Christ" as a way of diluting Christian doctrine. A generation later it would be "unconstitutional" even to teach the morals of Christ in public schools. This shows that the modern doctrine of "separation" was not even true in 1930, much less in 1776 when Virginia ratified its Christian constitution.

These religious discriminations are in a different category from the generalization of Virginia’s constitution of 1902, where it is stated that the moral duty of all is to practice Christian forbearance, love and charity -- following Thomas Jefferson, who disbelieved in the New Testament miracles but published the morals of Christ.

Despite the general impression to the contrary, the First Amendment to the Federal Constitution did not for all time fix religious freedom in America; it merely denied to Congress the right to establish religious worship, reserving this power to the states.[28] And religious liberty in several of the states has progressed no further than this definition: All persons professing the Christian religion are equally entitled to the protection of their religious liberty.[29] Indeed, equality of all Christians before the law was the highest ideal of the colonists, and it has continued so, even in those words, to this day. The result is an institution here similar to the established Church of England which has been defined as follows: "It is established by law, in that the State recognizes it as the National Church of the English people, an integral part of the Constitution of the realm."[30]

In contrast, one is reminded at this point of the present day rights before the law in England for all nonconformists, believers and non-believers alike, and of the deference paid to all of them. Thus, the state feels bound to admit them all to office, to receive their oaths and affidavits, to accept their testimony, to give them equal rights to marry without reference to a creed or no creed, to purge their expressions of disbelief in Christ of the charge of blasphemy, and so on. The House of Lords in England has definitely thrown out the ruling that Christianity is part and parcel of the common law in Bowman v. Secular Society[31] and Bourne v. Keane.[32] Singularly these decisions of a decade ago had not until recently been brought to the attention of lawyers, either in opinions, or in text books or law publications, and even now are not generally known.

Notice that Hartogensis' goal is to "uproot" case-law precedent such as laid down by Chancellor Kent, one of America's greatest jurists.

And the mischief lies in the capital made out of the statement by Coke, as reinforced by Chancellor Kent for America, establishing precedents here which it will be hard to uproot, and a body of substantial law difficult to set aside, and worst of all, a public opinion not to be changed at all, if the present zeal of bigots is to measure it.

indent.gif (90 bytes)Sec. X of the Know-Nothing Platform of 1856 calls for: "Opposition to any union between Church and State; no interference with religious faith or worship, and no test oaths for office . . . ."
indent.gif (90 bytes)The Founding Fathers had a bias against Roman Catholicism because Romanism is monarchical, and our system of government is Republican. However, any Roman Catholic who repudiated papal sovereignty and embraced the American system of government was accepted, regardless of the rest of his theology and worship.

[8] See 5 VON HOLST, CONSTITUTIONAL HISTORY (1885) 79 et seq. In the history of the Know-Nothing Party there appears much interference of Catholic prelates in public affairs, as in the visit of the Papal legate, Cardinal Bedini.

[9] A case may even be made out of recognition of Ku-Kluxism in the laws of some states. Cf. Jaurez [sic] v. State, 102 Tex. Grim. App. 297 (1925), where county officers sought by law to prevent Catholics from serving as grand jurors. See Seagle, A Christian Country, in American Mercury, Oct.1925.

[10] People v. Ruggles, 8 Johns. 291 (N. Y. 1811).

[11] See Note ANN. CAS. 1913E 1222, 1227; Note (1894) 22 L. R. A. 501 et seq. The following are judicial authority for the proposition that Christianity is part of the common law in the United States: Shover v.State, 10 Ark. 259 (1850); State v. Chandler, 2 Har. 553 (Del. 1837); State v. Bott, 31 La. Ann. 663 (1879); Pearce v. Atwood, 13 Mass. 324 (1816); Lindenmuller v. People, 33 Barb. 548 (N. Y. 1861); Updegraph v.Comm., 11 5. & R. 394 (Pa. 1882); Charleston v. Benjamin, 2 Strob. 508 (S. C. 1846); Bell v. State, 1 Swan 42 (Tenn. 1851); Grimes v. Harmon, 35 Ind. 198 (1871); Melvin v. Easley, 52 N. C. 356 (1860); Judefind v. State, 78 Md. 510, 28 Atl. 405 (1894).

[12] Under the common law, Jews and Mohammedans were classed with infidels unworthy of belief on oath because the Old Testament did not show a belief in a future world, a doctrine thought to have been introduced by the New Testament of the Christians.

This is false. Truth is not determined by numbers. This is the difference between a Christian Republic and a secularist Democracy. Every single Signer of the Constitution believed that tyranny and darkness were best defended against by a Christian government. Immigrants to America from non-Christian nations agreed. Hartogensis is deceptive in his mention of non-Christian religions. He is not agitating for a Jewish nation, or a Bahaist nation; he is agitating against a Christian nation and for a secular nation. But are Jews and Bahaists better off in a Christian nation like America, or an atheistic empire like the Soviet Union?

In differentiating atheists, skeptics, and non-believers, one must bear in mind the large numbers of confessing members of other faiths than Christianity in this country.

The unequal standing of the so-called "false religions" before the law is well illustrated in the attitude of the government expressed by the Census Bureau. In 1916, a religious census was taken; and this was followed in 1926 by a more elaborate and expensive one published in 1928 listing 213 religious bodies, all Christian except only two, Jews and Bahaists. Yet it is well known that there are many Buddhists, Mohammedans, Hindus and others confessing Asiastic religions in this country, some with pretentious houses of worship. That the numbers are negligible is not correct, and that small church memberships were not considered is also not correct, because the "summary of more important statistics" as released by the Census Bureau in September, 1928, lists forty-five negligible Christian denominations, each with less than a thousand members and some with less than fifty. The following figures for religions in North America are more significant: Mohammedans, 20,000; Buddhists, 180,000; Hindus, 150,000; Jews, 4,000,000; Confucionists and Taoists, 600,000; Shintoists (blank) and Animists, 50,000. WORLD ALMANAC (1930) 443.

[13] 143 U. S. 457, 12. Sup. Ct. 511 (1892) (opinion of Brewer, J.)

[14] BREWER, THE UNITED STATES A CHRISTIAN NATION (1905). See especially p.34, regarding the chaplains of the Army and Navy: until recently exclusively and now generally "their whole range of service whether in prayer or preaching has been an official recognition of Christianity." Cf. also Stephens, School, Church and State (1928) 12 MARQ. L. REV. 206: "Christianity and democracy are not separable if democracy is to persist."

[15] Vidal v. Girard’s Executors, 2 How. 127, 199 (U. S. 1844) - Christianity was declared to be part of the common law of Pennsylvania. Cf. also ibid. 198: in the case "of a devise in Pennsylvania for the establishment of a school or college for the propagation of Judaism or Deism, or any other form of infidelity . . . there must be plain, positive, and express provisions, demonstrating not only that Christianity is not to be taught; but that it is to be impugned or repudiated" (as occurs in every Jewish school). Accord: Zeisweiss v. James, 63 Pa. 471 (1870) (declared void a devise for atheistic teaching because an insult to Christianity). But in Manners v. Library Co., 93 Pa. 165 (1880), a bequest for atheistic teaching was sustained.

The former case approved the statement that: "Although Christianity is part of the Common Law of the State, yet it is so in this qualified sense, that its divine origin and truth are admitted and therefore it is not to be maliciously and openly reviled and blasphemed against, to the annoyance of believers or the injury of the public." Vidal v. Girard’s Executors, supra at 198. See also 3 STORY, CONSTITUTION OF THE UNITED STATES (5th ed. 1891). 628: "It is impossible for those who believe in the truth of Christianity as a divine revelation to doubt that it is the especial duty of government to foster and encourage it among all the citizens and subjects."

[16] Supra note 11.

[17] Bloom v. Richards, supra note 3. But cf. Board of Education v. Minor, 23 Ohio St. 211 (1872), which holds that the Ohio constitution does not enjoin Bible reading in the schools.

[18] Judefind v. State, supra note 11, at 516, 28 Atl. at 407; cf. Hiller v. State, 124 Md. 385, 92 Atl. 842 (1914); Levering v. Park Commission, 134 Md. 48, 106 Atl. 176 (1919); Spann v. Gaither, 152 Md. 1, 136 Atl. 41 (1927).

Gov. Ritchie now construes the Sunday law to allow athletic performances in state armories despite the protests of the Lord’s Day Alliance. See Baltimore Sun, Dec. 13, 1929.

It may be objected that much space is given to Maryland throughout this article, but it is typical of the backward states, and is the situation with which the writer is best acquainted. Recent indications of the situation in Maryland are the refusal on November 29, 1929, by Judge Peter at Rockville, Md. of the testimony of an atheist, causing a non pros. in a criminal action, and the protest on January 1, 1930, of Rabbi Israel before the Baltimore School Board against the Christmas exercises held in public school attended by Jews, in which a Catholic priest officiated in his robes.

[19] See STORY, op. cit. supra note 15, at 629.

[20] See AMERICAN SENTINEL OF WASHINGTON (1895). There was a concerted persecution in 1893. especially near Ford’s Store, Md., culminating on the one hand in the Judefind case, supra note 11, and on the other in the sending to jail of a Seventh Day Adventist because he refused to testify on his holy day, the seventh day Sabbath.

[21] To this list might be added the celebration in public schools of Christmas and Easter as religious occasions for evangelical purposes, the compulsory attendance of dissenters in the public schools and prevention of their attendance in parochial schools, and finally the prohibition of the teaching of evolution in schools.

[22] To Moslems and especially to the believing Jew, the use of these words is heresy in violent conflict with his confession of faith. For such refusal to express belief in the divinity of Christ, tens of thousands of Jews have suffered martyrdom these 1800 years, and continue to be proscribed, ostracized, and otherwise to suffer socially everywhere to this day. Compare the persecution of Doctor Lumbrozo, infra note 85.

[23] In order not to offend the sensibilities of mixed assemblies, however, it is now usual to have prayers addressed to the Deity in general, like "Our Heavenly Father," and to exclude all reference to Christ.

Politics in action. The 1776 Delaware constitution did contain explicit reference to the Trinity, and other constitutions were clearly Christian, but these phrases were diluted down to be "inclusive." In short, politicians meant to create words which would placate two groups with opposite motivations. This is duplicity. Political compromise is the art of lying.

[24] But in no charter or constitution is there mention of any other creed than Christianity. See BREWER, op. cit. supra note 14, at 27.

[25] See for this and the subsequent constitutional provisions, KETTLEBOROUGH, MANUAL OF STATE CONSTITUTIONS (1918).

[26] Cf. Hale v. Everett, 53 N. H. 9 (1868).

[27] Cf. Hackett v. Brooksville, 120 Ky. 608, 87 5. W. 792 (1905), where a similar result is reached by judicial decision. Here the prayer authorized was: "These things we ask for Christ’s sake."

[28] Permoli v. New Orleans, 3 How. 589, 609 (U.S. 1845). See U. S. C. A. Const. Pt. 2, p.454 (1926), for full list of cases.

[29] Cf. the constitutions of Connecticut, Massachusetts, and New Hampshire. See also the view of Judge Samuel Chase, later Chief Justice of the United States, in Runkel v. Winemiller, 4 H. & McH. 429, 450 (Md. 1799): "All sects and denominations of Christians are placed upon the same equal footing, and are equally entitled to protection in their religious liberty."

This "differentiation" is not at "nice" as Hartogensis would like you to believe. More on the case is here.

[30] 9 ENCL. BRIT. (11th ed. 1910) 442. A nice differentiation appears in Lindenmuller v. People, supra note 11, at 561: "Christianity is not the legal religion of the State as established by law. If it were it would be a civil or political institution, which it is not."

[31] [1917] A. C. 406.

[32] [1919] A. C. 815. Both these cases were ably discussed in their relation to the American situation by Max J. Kohler of the New York bar in (1928) 31 JEWISH HIST. SOC. 105

  1. [Introduction]
  2. Christianity Part of Our Law
  3. NEXT: Are Oaths of Believers Alone Believable?
  4. Official Oaths Founded on Christian Belief
  5. Compelling Marriage in the Face of the Church
  6. Sunday Laws
  7. Blasphemy
  8. Bible Reading in the Schools

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