Former Supreme Court Justice Hugo Black once said: “‘No law’ means no law.” He was referring to the First Amendment authority of Congress in regard to an establishment of “religion.” Such clarity and understanding is obviously lacking among some current judges, attorneys, politicians, and journalists.
The distinguished constitutional historian Leonard W. Levy points out that the object of the Bill of Rights was to “restrict Congress” and limit the power of government (The Establishment Clause, 1986, p. 84.). There is no historical evidence to suggest that the Fourteenth Amendment intended to remove that restriction. Within the law, religion is to be freely exercised without government aid.
A cochairman of the 1789 Joint Senate-House Committee which drafted the two religion clauses was Congressman James Madison. As President, he clearly stated his understanding of their meaning in two vetoes:
On February 21, 1811, Madison vetoed as unconstitutional a bill accommodating an Episcopal church: “Because the bill exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions, and . . . vests in the ... church an authority to provide for the ... education of poor children” (Writings of James Madison, 8:132).
On February 28 Madison vetoed a bill accommodating a Baptist church: “Because the bill ... comprises a principle and precedent for the appropriation of funds of the United States for the use and support of religious societies, contrary to the ... Constitution” (Writings, 8:133).
A few years later in his undated essay “Monopolies” Madison wrote: “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.” Madison would have vetoed the 1993 Religious Freedom Restoration Act.
In a Jan. 1, 1802, letter to the Danbury Baptist Association of Connecticut President Thomas Jefferson deliberately defined the religion clauses and wrote: “The powers of government reach actions only, and not opinions” and “man ... has no natural right in opposition to his social duties.” In other words, Congress cannot make laws “prohibiting” the free exercise of religion; however, laws can be made which limit the exercise thereof--religion is not above the law.
For example, there was no confusion or accommodation in 1879 when a unanimous Supreme Court (Reynolds v. U.S.) ruled against polygamy as a violation of government law, regardless of religious opinion. In 1990 the Court (Smith v. Employment Division of Oregon ) refused to accommodate peyote-using Native Americans.
As for accommodating parochial schools, in 1947 the Court (Everson, 330 U.S. at 15) said: “No tax in any amount, large or small, can be levied to support any religious ... institutions. ... In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church & State.’”
In regard to the Fourteenth Amendment, it did not repeal the First Amendment restriction on Congress; the Everson Court said: “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.”
The question for the 1997 Supreme Court of the United States, as it considers Aguilar, Smith,and Flores, is whether it will overturn precedent and the Father of the Constitution.
Copyright 1997 Gene Garman