Is it Unconstitutional for the Federal Government to Favor Religion Over Non-Religion?

We often hear mention of the separation of church and state. Usually, its mention is accompanied by the claim that the government cannot favor religion over non-religion; any instance of such, according to the Separationists, violates the United States Constitution.

Though it may come as a surprise to many, the phrase separation of church and state has no mention in the Constitution. To support their allegation of unconstitutionality, Separationists must rely on a flawed interpretation of the Establishment Clause of the First Amendment:

Congress shall make no law respecting an establishment of religion . . .

Consequently, the erroneous exegesis leads them to affirm the demonstrably false principle that the government cannot favor religion over non-religion; in other words, any recognition of even a generic theism is, on their view, unconstitutional.

However, one need not look hard to find that this is not—and never was—the model adopted by America. George Washington added to the form of Presidential oath prescribed by Art. II, § 1, cl. 8, of the Constitution, the concluding words “so help me God.”1Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004). The Supreme Court under John Marshall opened its sessions with the prayer, “God save the United States and this Honorable Court.”21 C. Warren, The Supreme Court in United States History 469 (rev. ed. 1926). The First Congress instituted the practice of beginning its legislative sessions with a prayer. Marsh v. Chambers, 463 U.S. 783, 787-788 (1983).

Interestingly, the same week that Congress submitted the Establishment Clause—i.e., the very clause upon which the Separationist’s argument depends—as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. Id. at 788. What is more, the day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim “a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many signal favours of Almighty God.”3H. R. Jour., 1st Cong., 1st Sess., 123 (1826 ed.); see also Sen. Jour., 1st Sess., 88 (1820 ed.). President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of the American people “to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be,” thus beginning a tradition of offering gratitude to God that continues today. Van Orden v. Perry, 545 U.S. 677, 687 (2005) (plurality opinion) (quoting President Washington’s first Thanksgiving Proclamation). Moreover, the same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Id. at 52, n.(a).

The actions of our First President and Congress and the Marshall Court were not idiosyncratic. Though it may come as a surprise to some, the views of current government on this matter have not significantly changed: presidents continue to conclude the Presidential oath with the words “so help me God”; our legislatures, state and national, continue to open their sessions with prayer led by official chaplains; the sessions of SCOTUS continue to open with the prayer “God save the United States and this Honorable Court”; invocation of the Almighty by our public figures, at all levels of government, remains commonplace; our coinage bears the motto, “IN GOD WE TRUST”; and our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one Supreme Court opinion rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v.Clauson, 343 U.S. 306, 313 (1952), repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675 (1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).

In sum, it is inconceivable to hold that the First Congress—having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session—thought that this practice was inconsistent with the Establishment Clause. And since this practice was well established and undoubtedly well known, it seems equally clear that the state legislatures that ratified the First Amendment had the same understanding. Indeed, what could possibly be more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it? Therefore, since the actions of the very Congress responsible for producing the Establishment Clause clearly and unarguably conflict with the notion that the government cannot favor religion over non-religion, the Separationist’s argument is evacuated of any force whatsoever.

Notes   [ + ]

1. Blomquist, The Presidential Oath, the American National Interest and a Call for Presiprudence, 73 UMKC L. Rev. 1, 34 (2004).
2. 1 C. Warren, The Supreme Court in United States History 469 (rev. ed. 1926).
3. H. R. Jour., 1st Cong., 1st Sess., 123 (1826 ed.); see also Sen. Jour., 1st Sess., 88 (1820 ed.).
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