If there is one fundamental principle upon which the United States of America is established, it is the principle of the rule of law. The supreme law of the United States of America is the Constitution for the United States of America and all citizens at both the state and federal level are bound to its authority. The Constitution deliberately and specifically states that “religion” shall not be established by law. In other words, in America religious law and establishments of religion shall not prevail over civil law which is created by all Americans through their elected political representatives. The First Congress and the people of America through their state legislatures made it perfectly clear in the First Amendment that at the national level religion would not be imposed by law or government. The Fourteenth Amendment through its “liberty” provision allowed application of that prohibition to the states. In America there is to be no religious law, therefore civil law prevails regardless of religious opinions, and religious establishments are subject to the same laws as every other organization.
It is ridiculous to assert that organizations of religion are exempt from civil law. In America religion is not above the law except in the realm of opinions. Any American may believe whatever he or she chooses in regard to religion, but no American is granted immunity or exemption from the laws of society in regard to actions, regardless of religious belief. In America there is no religious law, and government can make no law respecting an establishment of “religion.” It is laughable to assert that in America any group of individuals can claim exception to the laws of society merely by designating themselves as a church or religious society. What havoc would then reign in the name of religion? Religion would then be established by law and the Establishment Clause would be rendered meaningless; the Free Exercise Clause would be turned into a license for anarchy. The Constitution would become a worthless agreement.
Where then does America, as a nation based on law, draw the legal line regarding religion? The words of the Constitution are not meaningless. They were debated and deliberately chosen for the purpose of giving order and stability to civil society. No two clauses of the First Amendment were given more consideration by the First Congress than the two religion clauses. The Establishment Clause and the Free Exercise Clause are not in conflict--one does not contradict the other in regard to the principle of the supremacy of civil law. America is not a theocracy. The first clause in the Bill of Rights plainly says that “religion” is not to be established by law--religion is not be established as law. The new world of the United States of America separated itself from the old world and its history of legalized religious tyranny. In America religion is not to rule.
So, what happens in the United States of America when a church or church organization claims it can do whatever it pleases in the name of religion because it calls itself a religious organization and distorts the significance of the Free Exercise Clause as if it guaranteed any action constitutional protection? Well, what should happen is that such organizations should be corrected and reeducated as to a proper understanding of the Free Exercise Clause and the Constitution.
The Constitution for the United States of America is a social compact or contract drafted to establish civil order and harmony based upon the proposition that the rule of civil law prevails at all times and in all circumstances. The Constitution is the supreme law of the land, and all public officials (both state and federal) are sworn to abide by it. No public official has any authority to allow any action in the name of religion if such action violates the laws of the land. The only total protection given to religion in America is in regard to opinion, not actions. A person or group may believe whatever it chooses, but no individual or group has any constitutional right to violate the laws of society. The laws of America’s civil society relate to actions, not opinions, as they maintain order, harmony, and peace among citizens who are allowed to believe whatever they choose in regard to religion. Religious opinion is totally free and cannot be prohibited, but all actions can be restricted by civil law; otherwise, religious opinion reigns supreme and anarchy prevails. The Constitution does not legalize anarchy.
What did the Founding Fathers understand from history? They understood that religious wars and persecutions resulted from conflicting opinions in the name of religion. Therefore, in America a society was to be established wherein religion was not to be established by law and all actions were to conform to civil law. In America there was to be no religious law, only civil law. Religion would be totally free only in regard to opinions, not actions.
For example, in 1776, before the Constitution was drafted and during his effort to disestablish the Anglican church in Virginia, Thomas Jefferson wrote: "Whatsoever is . . . prohibited by the laws, ought not to be permitted to churches in their sacred rites. for instance, it is unlawful in the ordinary course of things or in a private house to murder a child. it should not be permitted any sect then to sacrifice children: it is ordinarily lawful . . . to kill calves or lambs. they may, therefore, be religiously sacrificed. But if the good of the state required a temporary suspension of killing lambs (as during a seige); sacrifices of them may then be rightfully suspended also. this is the true extent of toleration. . . . [if] anything pass in a religious meeting seditiously [meaning "incitement of resistance to or insurrection against lawful authority," Webster's Ninth New Collegiate Dictionary] and contrary to the public peace, let it be punished in the same manner and no otherwise than as if it had happened in a fair or market" (Papers of Thomas Jefferson, 1:547-548). After the Constitution was drafted, Jefferson wrote: "The declaration that religious faith shall be unpunished does not give immunity to criminal acts dictated by religious error" (Ltr. to James Madison, July 31, 1788, Papers, 13:442-443).
When in 1811 certain congressmen wanted to establish by law a precedent and principle that public property could be given to a religious society, President James Madison, Father of the Constitution and a cochairman of the joint Senate-House conference committee which produced the final draft of the religion clauses of the First Amendment, said such a law was unconstitutional because it violated the provision of the Constitution which forbid establishments of religion through laws passed by Congress. Further, Madison said, in regard to the specific Baptist church in Kentucky, it was unconstitutional to establish by law any legal recognition of a religious society as having a right to public property or funds. In other words, the vetoed law would have given a governmental okay to a legal financial connection between religion and government and would have voided the constitutional principle of separation between religion and government. Religion is not in any way to be established by law as a part of the responsibility of government. Religion and government are to exist in two separate realms. Religion is free in regard to opinions, as contrasted to actions. Actions are to be regulated by civil law. President Madison emphatically stated that giving public money to a religious society was an action in violation of the Constitution (The Writings of James Madison, 8:133). Religious institutions are established by private citizens and are to fund themselves without aid from government, and no action is to be authorized by Congress which would create an exception to the American principle that religious establishments are to be distinguished from public establishments.
In 1811 some congressmen also tried to get past President Madison another proposed law which violated the constitutional principle of separation between religion and government. An Episcopal church actually wanted the federal government to approve its legal incorporation including terms of its organization. Madison vetoed the proposed bill because he said it violated the Constitution’s prohibition which distinguishes religious establishments from public establishments; for example, the proposed law “would be a precedent for giving to religious societies as such a legal agency in carrying into effect a public and civil duty” (Writings, 8:132). Let there be no misunderstanding as to what Madison meant. He applied the Establishment Clause in terms of a constitutional separation between religious establishments and government. As President, he applied the principle of separation because he understood the Constitution and the danger it faced from religion: “Strongly guarded as is the separation between Religion and Government in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history” (“Detached Memoranda,” William and Mary Quarterly, 3:555, 1946).
The above two examples provide pointed reminders from James Madison to the Congress that it had no authority to make such laws and that the correct understanding of the constitutional principle regarding religion is separation between religion and government, not the legal establishment of ties between religion and government. Religious establishments are to exist completely without the support of government in terms of their opinions or activities as allowed by civil laws which apply equally to all organizations. For instance, if Congress could establish by law legal exemptions or protections for the actions of any one religious society, would it not be establishing religion as above the laws which apply to all other organizations? Such laws would violate the constitutional principle regarding the rule of civil law. Congress has no such authority. No church or religious institution is to be exempt from the civil laws of American society. Neither, as Madison would say, does Congress have any authority to provide benefits of special privilege or public money to religious establishments. The Establishment Clause is worded to affirm a principle relating specifically to establishments of religion regardless of their chosen private or public purposes--religion is not to be established, directly or indirectly, by law.
The Constitution does not allow churches or religious institutions exceptions from the laws of American society. Religious establishments are free to exist within the law, but they are not above the law and are not to be given any special status which would exempt them from civil law. The Free Exercise Clause does not give religious establishments special treatment regarding laws which apply to all organizations. The Free Exercise Clause does not allow religious establishments to choose which laws they will obey. In 1879 the Supreme Court in a “free exercise” case (Reynolds v. U.S., 98 U.S. 145) properly upheld civil law over religious opinion in regard to polygamy. In 1999 and beyond the Court must continue to rule that actions in the name of religion, by individuals or institutions, are always subject to America’s civil law.