Julio Gonzalez, M.D., J.D.
Last week we discussed the events culminating in Jefferson's wall of separation between church and state. Amazingly, Jefferson's letter to the Danbury Baptist Association lay dormant for seventy years.
But in 1874, George Reynolds, a Utah Mormon, decided he wanted to marry another woman while still married to his existing wife. Polygamy was an accepted practice within the Mormon Church where so many of the nation's Mormons lived. However, the rest of the nation, and in particular, the federal government, took a staunchly anti-polygamous stance.
Reynolds proceeded with his polygamous marriage and was subsequently convicted of engaging in the illegal activity of having more than one wife in conflict with Utah's increasingly anti-polygamist statutes. He appealed the conviction as infringing upon his religious freedoms.[i] Ultimately, the Supreme Court heard the case and ruled against Reynolds, asserting that although Congress and the state did not have the authority to regulate religious beliefs, they were able to prohibit certain religious practices, such as polygamy. In its analysis, the Court entered a discussion regarding the meaning of religious freedom and the proper role of government in regulating religious-based conduct. As part of its analysis, the Court quoted the entire paragraph of Jefferson's letter to the Danbury Baptist Association regarding the separation of church and state marking the phrase's entry into the legal corpus.
Admittedly, the Court's foray into the realm of regulating religious-based conduct within a territory did not equate to the same judicial oversight over a state. After all, a territory of the United States is not sovereign and, accordingly, is subject to the direct authority of the federal government. A state, however, is sovereign and subject to greater protections against legal intrusions by federal courts.
Enter the Fourteenth Amendment.
One of the three Civil War amendments, the Fourteenth Amendment was clearly written in an effort to protect the newly-freed slaves, but in the twentieth century, Progressive jurists reapplied those words in a manner different than was originally intended.
One of the first opportunities the Court had to extend its powers regarding religious freedom presented itself in 1940, in Cantwell v. Connecticut.[ii] The controversy arose from Newton Cantwell's actions, as a Jehovah's Witness minister, of door knocking with the intent of proselytizing his faith to the residents of New Haven, Connecticut. His routine was to approach a home, and if the homeowner allowed, he would ask permission to play a phonographic recording of his church's message. Once the homeowner listened to the message, he would ask the homeowner to purchase a book teaching the Jehovah's Witness faith or to make a contribution to his church. Mr. Cantwell was eventually arrested for violating a state statute prohibiting the solicitation of ". . . any valuable thing for any religious, charitable, or philanthropic cause, . . ."[iii]
In Court, Cantwell argued that the statute was unconstitutional because it inhibited his freedom of worship and his freedom of speech in contradiction to the due process rights afforded to him by the Fourteenth Amendment of the Constitution. The Court agreed, stating that whereas the First Amendment to the Constitution has prohibited Congress from making any law establishing a religion or prohibiting the free exercise thereof, "[t]he Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."[iv]
In its ruling reversing Cantwell's convictions, the Court acted to protect Cantwell's freedom of speech and his right to freely exercise his religion. However, the ruling was based on an authority borrowed from the Fourteenth Amendment, not from those given to it by the original version of the Constitution.
In Everson v. Board of Education,[v] the Court, in an opinion authored by Hugo Black, upheld a New Jersey tax law calling for the collection of money to support school transportation for all children regardless of whether the children were being transported to secular or religious schools. Everson marked the first time the Court applied the freedom of religion clause in the First Amendment to a state. In his opinion, Justice Black again employed Jefferson's wall of separation analogy stating,
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. [Footnote 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. [Footnote 7] 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." [Everson v. Board of Education, 330 U.S. 1, 15-16 (1947)]
Admittedly, these first two forays into religious freedom by the Supreme Court served to protect our religious liberties. But in expanding the authorities afforded to it by the Fourteenth Amendment, the Court changed the character of the Constitution in a manner never intended by the Framers, the legislature, or the people, and it was changed by an unelected and a virtually un-checkable subgroup of government.
The unfortunate and longer lasting result of the Court's actions in Everson and Cantwell were to divine a new function for the Courts; the role of arbiter of the constitutionality of state laws relating to religion, something the courts had never previously possessed. So, in essence, the door for later judicial activists to erode our rights to publicly worship and publicly acknowledge the supremacy of God was now broadly opened.
Next week, we will see how that erosion actually played out.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He is the author of The Federalist Pages and served in the Florida House of Representatives. He can be reached through www.thefederalistpages.comto arrange a lecture or book signing.
The Court cited the letter in its attempt to define religion and religious freedom, which it correctly observed had no definitions within the Constitution. The Court in Reynolds did not specifically define "religion" or "religious freedom," but used the Danbury Baptist Association letter, Madison's Memorial and Remonstrance, and sections of the Jefferson's Bill for Establishing Religious Freedom in defining the proper relationship between government and religious worship.
Although the law included a few exceptions to the prohibition of exchanging valuable items or money for solicitations, the Cantwells did not qualify for them.
[i]Reynolds v. United States, 98 U.S. 145 (1878).
[ii]Cantwell, 310 U.S. 296.
[v]Everson v. Board of Education, 330 U.S. 1 (1947).