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- Secularists claim that the Constitution and the First Amendment guarantee freedom for
all non-Christian religions, and especially for the religion of Secular Humanism
- Polygamy has always been a crime in Christian nations.
- Mormons tried to use the First Amendment and Jefferson's "wall of separation"
metaphor to eliminate laws against polygamy.
- They lost. America is a Christian nation.
Let's 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, butand this is surely more significantthe 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
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
Another case is 136 U.S. 1, LATE CORPORATION OF THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS et al. v. UNITED STATES, May 19, 1890. The Court said the following:
"It is distinctly stated in the pleadings and findings of fact that the property
of the said corporation was held for the purpose of religious and charitable uses. But it
is also stated in the findings of fact, and is a matter of public notoriety, that the
religious and charitable uses intended to be subserved and promoted are the inculcation
and spread of the doctrines and usages of the Mormon Church, or Church of Latter-Day
Saints, one of the distinguishing features of which is the practice of polygamy,-a crime
against the laws, and abhorrent to the sentiments and feelings of the civilized world.
Notwithstanding the stringent laws which have been passed by congress,-notwithstanding all
the efforts made to suppress [136 U.S. 1, 49] this barbarous practice,-the sect or
community composing the Church of Jesus Christ of Latter-Day Saints perseveres, in
defiance of law, in preaching, upholding, promoting, and defending it. It is a matter of
public notoriety that its emissaries are engaged in many countries in propagating this
nefarious doctrine, and urging its converts to join the community in Utah. The existence
of such a propaganda is a blot on our civilization. The organization of a community for
the spread and practice of polygamy is, in a measure, a return to barbarism. It is
contrary to the spirit of Christianity, and of the civilization which Christianity has
produced in the western world. The question, therefore, is whether the promotion of such a
nefarious system and practice, so repugnant to our laws and to the principles of our
civilization, is to be allowed to continue by the sanction of the government itself, and
whether the funds accumulated for that purpose shall be restored to the same unlawful uses
as heretofore, to the detriment of the true interests of civil society. It is unnecessary
here to refer to the past history of the sect; to their defiance of the government
authorities; to their attempt to establish an independent community; to their efforts to
drive from the territory all who were not connected with them in communion and sympathy.
The tale is one of patience on the part of the American government and people, and of
contempt of authority and resistance to law on the part of the Mormons.
Whatever persecutions they may have suffered in the early part of their history, in
Missouri and Illinois, they have no excuse for their persistent defiance of law under the
government of the United States.
"One pretense for this obstinate course is that their belief in the practice of
polygamy, or in the right to indulge in it, is a religious belief, and therefore under the
protection of the constitutional guaranty of religious freedom. This is altogether a
sophistical plea. No doubt the [Kali] Thugs of India imagined that their belief in the
right of assassination was a religious belief; but their thinking so did not make it so.
The practice of suttee by the Hindu widows may have sprung from a supposed religious
conviction. The offering of human sacri- [136 U.S. 1, 50] fices by our own ancestors in
Britain was no doubt sanctioned by an equally conscientious impulse. But no one, on that
account, would hesitate to brand these practices, now, as crimes against society, and
obnoxious to condemnation and punishment by the civil authority. The state has a perfect
right to prohibit polygamy, and all other open offenses against the enlightened sentiment
of mankind, notwithstanding the pretense of religious conviction by which they may be
advocated and practiced. Davis Beason, 133 U.S. 333,
Note that the Court acknowledges past persecution of the Mormons, but distinguishes its
decision from that embarrassing lawlessness.
And of course, the Court is clear that "religious freedom" belongs to those
who practice the True Religion. The Court refuses to acknowledge that the practices of the
worshippers of Kali even rises to the level of "religion." Even if they were
"no doubt" sincere.
The modern Supreme Court has completely reversed this thinking, of course, calling even atheism a
"religion," determining "religion" only on the basis of a
"sincerely held belief." Separationist Leo Pfeffer, who argued for Roy Torcaso in the US Supreme Court, admits:
It is reasonable to suggest that an earlier generation would have been surprised at a
holding that the term religion as used in our Constitution and laws
does not encompass belief in God [as it did] in the 18th century, when our Constitution
was written, [when] the meaning then generally ascribed to God [was] the deity depicted in
This admission refutes Ed's assertion that the Founders had atheists in mind when they
spoke of "religious freedom." But then Pfeffer
describes the God of the Bible as "anthropomorphic," and claims that America in
the mid-twentieth century would hardly accept such a definition, and the only conclusion
is that neither the term "God" nor "religion" can be given a precise
or static definition. In other words, the Constitution does not mean what the Founders
intended it to mean, it means what we in the 20th century WANT it to mean. The Founders
believed in religious freedom for those who worship the God of the Hebrew-Christian
Scriptures. But we can't limit religious freedom to that envisioned by the Founders, cuz
they liked the Bible and we don't. So for us, the Constitution's definition CANNOT be
static, because we want to change it. Pfeffer's view is mere subjectivism, and
subjectivism in law inevitably leads to facsism:
The state may constitutionally prohibit assassination, human sacrifice, and polygamy;
but this is so not because the belief of the Hindu Thug, the primitive Briton, or the 19th
century Mormon does not constitute "religion" within the meaning of the First
Amendment's free exercise clause, but only because the societal interest in the
preservation of human life or of the monogamous family is deemed by the state to be
paramount to the Thug's or Briton's or Mormon's right to exercise his religion.
Church, State, and Freedom, 1953, rev ed 1967 ch 15.
This is exactly the opposite of what the Court held and what the Founders believed.
Notice that the State no longer considers monogamy an important state interest.
Christian marriage can now be destroyed by the State. This shift to pure fascism is
shocking. For the Founders, the government was "under God," and Christians --
and only Christians -- had religious freedom. We all had freedom because the State was
limited by Christian principles, and when we saw the State exceeding Biblical limits, we
could call it to account, by imposing God's requirements on the State. For Pfeffer and the
Humanists, however, the God of the Bible no longer has anything to do with
"religion," Christians cannot tell the State what it can or cannot do, ANYTHING
can be a genuine "religion" -- even human-sacrificing Aztecs and assassins of
Kali -- but the STATE will determine the extent of your rights, limited by the morality of
no religion (except that of Secular Humanism, the worship of man the power-grabber).
It is undeniable that in 1890 the US Supreme Court did not believe in the ACLU version
of "separation of Church and State," and the ACLU did not get that doctrine out
of the Constitution.
The Constitution does not require us to believe the ACLU.