Religious Power and the U.S. Constitution

February 21, 1982
Lakeland

The limitations on religious power and the exercise of religious power have filled countless pages in history. In our nation the 1st Amendment to the Constitution has been the foundation of freedom from majority co-ercion, from majority compulsion. The 1st Amendment is brief but I can think of no other one sentence which is so clearly a foundation for individual freedom and rights.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

James Madison was the principal architect of this basic declaration of freedom for Americans. Madison was sensitive to the historical reality that a majority can and will repress the rights of the minority, unless that majority is required by law to accept and defend the rights of a minority. Madison wrote (in The Federalist):

“In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as by individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie is known to be inadequate in individuals: In large numbers, little is to be expected from it.”

Thomas Jefferson stands in equal stature with Madison in holding to this basic freedom. He and Madison worked together on the hard road of freedom from the time of the Declaration of Independence, the Declaration of Rights of the Virginia Constitution, the Virginia Statute for Religious Freedom, as well as the 1st Amendment.

When Jefferson was President of the U.S. he wrote a letter on 1/1/1802 to the Danbury, Conn. Baptist Association, which is perhaps one of the more famous statements of this Unitarian advocate of freedom:

“Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

When Jefferson said free, he meant just that as attested in plain language in his NOTES ON VIRGINIA, “The legitimate powers of government extend only to such acts as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god.”

Jefferson was consistent in his understanding of the 1st Amendment. “He refused, as chief executive, to issue proclamations concerning religious fasts of thanksgivings. He felt that such proclamations would commit the executive and thereby the government to promoting religious activities and might be considered an infringement on the free exercise of religion.” (See Butts – AMERICAN TRADITION IN RELIGION AND EDUCATION).

There are just two points I would seek to develop today:

1)The First Amendment stands – but time and again there have been organized attempts to infringe upon it. Such attempts will not cease.

2)That the First Amendment is not a muzzle to prevent religious people from efforts to implement ethical principles and social values through legislation and social persuasion.

In this nation, churches exist side by side in relative tolerance, despite a world of differences that exist between their unlike assumptions as to the source of truth and widely differing interpretations of religious experience. But one dispute seems fated for continuing acrimony: the serious cleavage of opinion about the “wall of separation between Church and State,” to repeat Jefferson’s enduring phrase.

That religious institutions should divide so bitterly on the many facets of the church/state issue may be regrettable, but the questions are serious, not trivial. In King Henry V (sc. 1, act iv), Shakespeare has the king say just before battle,

“There is some soul of goodness in things evil,
Would men observingly distill it out.”

Church/State controversies frequently are pitched on bitter exchanges of hostile argument, and that may be bad, but there is opportunity in such confrontations to distill out value or wisdom, to clarify one’s convictions and, perhaps, dissolve prejudice if discourse can be kept on a level of mutual goodwill amid sharp disagreement.

Church/State relationships represent a wide range of differences, some seemingly routine, some dramatic. The use of the Bible as the sanction for court testimony, the saluting of the flag (“this nation under God,” the compulsory nature of school attendance, religious chaplains in the armed services and in the Congress – all these and many more touch lightly or heavily on the Church/State controversy.

There always seems to be a church/state issue before the U.S. Supreme Court. Consider a decision handed down by the Court on January 12, 1982. The case involved a transaction occurring in 1976 when 77 acres of land and buildings, costing an estimated $10 million, was given to the Valley Forge Christian College, an Assemblies of God Bible school in Pennsylvania. The property had been declared surplus by the federal government and given away under the Federal Property and Administrative Services Act of 1949.

Americans United for Separation of Church and State, an organization some of us support, challenged this give-away, arguing that the $10 million gift violated the 1st Amendment by directly aiding in the establishment of a religion. The Supreme Court by a 5 to 4 decision held that Americans United could not file suit. Justices Rehnquist, White, O’Connor, Powell, and C.J. Burger ruled that Americans United had no legal standing to file the suit. Justices Brennan, Marshall, Blackmun, and Stevens dissented.

The majority held that Americans United were not hurt and therefore not qualified to sue, further that the property given to the Assemblies of God was surplus property, handled by the Department of Health, Education, and Welfare. R.G. Puckett, Executive Director of Americans United, writes, “Supposedly this property was not given to the church group for sectarian purposes through a specific act of Congress under its powers to tax and spend.”

The Court’s decision in this particular case will stand; there is no appeal beyond the Supreme Court. Puckett wrote, “We have no quarrel with the Assemblies of God other than their willingness to accept the property without paying even one dollar for it. We support their rights to train ministers, missionaries, and laypersons to witness and practice their faith, but the U.S. Government should not finance such projects.”

But the case highlights the reality that there are always attempts to weaken the 1st Amendment, that it is always under attack, particularly by those who seek to finance their religious activities through taxpayers’ money.

Within that memory of most of us there have been many far-reaching issues and controversies before the Supreme Court:

The issue of released time in the public school for religious education, declared unconstitutional [in] the McCollum case in 1948.

The New York State Regents prayer declared unconstitutional.

The many ways that attempts have been made to secure public money for private parochial schools.

In the Zorach case in 1952, a majority of the justices ruled that released time for public school students was constitutional when the religious classes were held in locations removed from the school buildings and school grounds. In that case, in a strongly-worded dissent, Justice Black said in part, “Here the sole question is whether New York can use its compulsory education laws to help religious sects get attendants, presumably too unenthusiastic to go unless moved to do so by the pressure of this state’s machinery.”

The First Amendment will always be under attack through various and sometimes ingenious means. Among current proposals: a voucher system to parents to pay for parochial education; income tax credits when money is used for such purposes, and on and on. We can trust only, that in the long run, the Supreme Court will hold in most cases at least that taxpayers’ money will not be used for private religious purposes, purposes over which the taxpayers will have no control unless they happen to be believers or communicants in the religion thus being established in violation of the First Amendment.

Other words Justice Jackson said in the Zorach case should be valued by everyone: “My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be collected and decided by Caesar.”

My second point is that the 1st Amendment is not a muzzle to stifle religious people from efforts to implement ethical principles and social values through legislation. Frequently when a religious denomination or organization such as our UUA or our UUSC takes a stand on social issues, the question will be raised: religious organizations are tax free, by what right are they meddling in the affairs of government.

Yes, religious organizations are free from taxation. The basis for this, to my mind, is that the power to tax is the power to destroy. One can conceive how a religious organization taking an unpopular stand could be punished and ruined, financially, by being hit with crushing taxation. But this tax-free status does not and should not interfere with sounding a prophetic voice when convinced that something is wrong.

For example, consider this item from Thursday’s (2/18) LEDGER: [Newspaper clipping from AP: CLERGY CALLS FOR END TO AID TO EL SALVADOR; “Accusing the Reagan Administration of ‘uncritical association with government-sponsored murder and repression in El Salvador,’ a broad coalition of religious leaders and educators called Wednesday for an end to U.S. military aid to that nation. ...”

That diverse gathering of religious leaders trusted with guiding their denominations or organizations would not have common ground in theology, the source of authority in religion, biblical interpretation, or agree on what sacraments and rituals are. Their common ground is that which is the ethical core of all major religions – to do unto others as one would be done by. It so happens that I am pleased and encouraged that our UUA President, Gene Pickett, is one of the signers. Even if I did not agree, I would support his right and obligation to speak out on this issue. But I do agree and know that many of you do, and have let my Senators and Representative know that, as have many of you. The uniting motive was stated by the Hebrew prophet of old, “let justice prevail in the gates.”

The unifying motive is an answer to the question, “Who is my neighbor?” Well, the world is our neighborhood and all persons in it, our neighbors, including, particularly now the suffering persons in El Salvador.

I would summarize what I have said in two sentences:

Religious power must be restrained in any and all attempts to establish any organized religion with government support or approval.

Religious power must be unleashed in the never-ending pursuit of social justice.