Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; (Amendment I)
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Amendment XIV)
This Manifesto proceeds from the understanding that the First Amendment is a limitation on government confining it to what is secular and within its delegated and specified powers.
Government has no power or jurisdiction in religious matters.
A government with no jurisdiction regarding religious matters can neither establish religion nor impose religious beliefs or activities on its citizens.
The free exercise of religion is a guarantee that citizens can exercise their religion free from jurisdiction that exceeds the legitimate secular power of government.
Although the First Amendment originally applied only to the federal government– “Congress shall make no law”–the Supreme Court in 1947 (Everson v. Board of Education) applied that prohibition to the states and all their agencies down to the smallest school district.
The Everson case involved a New Jersey law that reimbursed parents for sending their children to schools—including parochial schools—by public transportation.
Surprisingly in light of its opinion, the Court actually upheld the bus transportation law by a majority of five to four. However, the Court’s opinion included several statements that led to the polarization of scholars, lawyers, and commentators that has persisted and deepened ever since.
The first of the Court’s controversial statements declared:
“Neither [a state nor the federal government] can pass laws which aid one religion, aid all religions, or prefer one religion over another.”
In this pronouncement the Court completely skewed Church-State discussion by setting up a religious standard for judging by a secular court.
In subsequent decisions Justices of the Supreme Court added to this blunder. In 1963 Justice William Brennan held that the First Amendment forbade government to assist what serves “the essentially religious activities of religious institutions.” In 1971that the Court decided a law’s “principal or primary effect must be one that neither advances nor inhibits religion.” Repeatedly the Court has held that government cannot assist what are “pervasively sectarian” institutions.
How does the Court evaluate what aids religion, when is an institution “pervasively sectarian” or how does it assess whether a law has the principal or primary effect of aiding religion? It doesn’t.
Were courts or legislatures to engage in a process to evaluate any of these questions, to hold hearings and call religious experts, it would become immediately clear that secular bodies were engaging extensively in religious matters.
Judges have avoided this dilemma by turning themselves into potentates handing down religious decisions from on high.
In the 1947 Everson decision, the Court rightly held that James Madison’s Memorial and Remonstrance should be used as a guide to the historical meaning of the First Amendment.
Madison wrote this document in 1785 as part of a successful petition movement against a proposed General Assessment Bill in Virginia that would have taxed citizens for the support of ministers of the Christian church. Each person taxed could designate which religious group would benefit and those who did not want to designate a religion could have their taxes go for education.
Since Madison shepherded the Bill of Rights through Congress four years later, his view on Church and State expressed in the Memorial are of great importance.
In the Everson opinion, however, the Court lauded Madison and his Memorial and then proceeded to completely ignore it in practice.
Madison wrote:
We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society and that Religion is wholly exempt from its cognizance.
The Justices in the Everson decision, however, not only declared that religion was within their “cognizance” but turned themselves into religious experts who knew what aids religion.
The Constitution mandates that the government is confined to what is secular and within its limited and specified powers; the Everson Court decided that its standard would be what is religious and what assists religion.
The Constitution mandates that courts evaluate the impact of laws on the State; the Everson decision decided that it would evaluate the impact of laws on the Church.
Although the Everson Court gave much lip service to Madison’s Memorial, in fact it adopted the Blaine Amendments as the standard for the application of the First Amendment.
In 1875, James G. Blaine the Speaker of the U.S. House of Representatives attempted to enact a constitutional amendment prohibiting aid to “sectarian” institutions. He failed in his efforts but 37 states passed their own state versions of his amendment.
“Sectarian” was a code word for Catholic as several Justices of the Supreme Court have recently acknowledged, and those amendments were clearly aimed at Catholic parochial schools.
As applied to the states by Everson, the First Amendment should have invalidated the Blaine Amendments in that they had clearly targeted the Catholic Church and set up a religious standard, i.e., what was religious–sectarian–rather than what was secular, for judging by the courts. However, the rhetoric of the Court did the opposite and actually nationalized them.
To apply the standard of what aids religion to the law in general would lead to complete confusion. When government fire departments put out fires in churches they surely aid religion. Allowing religious schools to fulfill the state’s mandatory requirement for the education of children is an enormous aid to religion.
It is little wonder that the discussion and understanding of the meaning of the First Amendment is so chaotic. The Constitution demands that the Supreme Court limit itself to what is secular but it has turned itself instead into a religious tribunal. It now claims the expertise not only to determine what aids religion but to distinguish between primary and secondary aids to religion as well as to define what is “essentially religious.”