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The Federal Establishment of Religion

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; Amendment I, U. S. Constitution

The question that has arisen in the minds of many is this: how did the U. S. Supreme Court arrive at the conclusion that this Amendment mandated the exclusion of the Bible and prayer from public schools?

More obviously, why did it take from 1791 until 1963 for nine (actually, there were only eight, Potter Stewart dissented) politically-appointed third-rate ambulance chasers to figure this one out?

The answer might surprise you.

Let's backtrack a century or two.

As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments. See McGowan v. Maryland, 81 S.Ct. 1101, 1112-1113 (1961). Each State was left free to go its own way and pursue its own policy with respect to religion. Thus Virginia from the beginning pursued a policy of disestablishmentarianism. Massachusetts, by contrast, had an established church until well into the nineteenth century.

So matters stood until the adoption of the Fourteenth Amendment, or more accurately, until the Supreme Court's decision in Cantwell v. Connecticut in 1940, 60 S.Ct. 900. In that case the Court said:

"The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."

Abington School District v. Schempp, 83 S.Ct. 1560 (1963) (Justice Potter Stewart dissenting) (footnote omitted).

The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. South Carolina v. United States, 26 S.Ct. 110, 111 (1905).

At least, that's the rhetoric.

What actually happened was this:

Most of the States ratified the Fourteenth Amendment in 1868. The Supreme Court, in 1954, then made the statement that, "our Constitution presupposes that all men are created equal." This was the famous Brown v. Board of Education of Topeka, Kansas, 74 S.Ct. 686 (1954) case in which the Supreme Court mandated the racial integration of the state public school system.

Contrary to the Supreme Court nonsense of that era, the Constitution "presupposes" nothing. The Court used the Fourteenth Amendment as its excuse for its justification of its social engineering experiment in the public school system. What the Fourteenth Amendment actually states is, "the equal protection of the laws," Section 1.

Even the Supreme Court cannot enact or change a scientific fact (if all men were created equal, I would look like Arnold Schwartzenegger--don't I wish). Only God can turn a word into a fact (John 1).

As the Attorney General in 1954 pointed out regarding Brown, "they didn't interpret the Constitution, they amended it."

Nine years later the Supreme Court then decided that the Establishment clause of the First Amendment was enforceable through the States via the Fourteenth Amendment. School District of Abington Township, Pennsylvania v. Schempp, 83 S.Ct. 1560 (1963).

The Court Struck down a statute that called for the reading of ten verses from the Bible and the Pledge of Allegiance in public school every morning. Children were exempt upon request from their parents.

This was the case that made Madelyn Murray O'Hare so famous. Her son William J. Murray III was one of the petitioners.

Another paragraph of Stewart's dissent bears repeating:

What seems to me to be of paramount importance, then, is recognition of the fact that the claim advanced here in favor of Bible reading is sufficiently substantial to make simple reference to the constitutional phrase "establishment of religion" as inadequate an analysis of the cases before us as the ritualistic invocation of the nonconstitutional phrase "separation of church and state."

A quote from the majority opinion also bears repeating:

It is insisted that unless these religious exercises are permitted a "religion of secularism" is established in the schools. We agree of course that the State may not establish a "religion of secularism: in the sense of affirmatively opposing or showing hostility to religion, thus "preferring those who believe in no religion over those who do believe."

See Abington, supra at 1573.

Now watch what happened to some people in Arkansas:

For longer than anyone can reliably remember, perhaps for as long as 51 years, the Gravette, Arkansas public schools had provided an opportunity for its elementary school children to learn about the Bible. Bible classes were taught during regular school hours and in the school building, by volunteers who were not acting on behalf of any church and were not employees of the school. No course credit was given for these classes and attendance was voluntary. Parents who did not wish their children to attend could arrange for them to spend the time given over to Bible classes in the library, in tutoring sessions, or in other unspecified, instructional situations. Ninety-six percent of the children attended the Bible classes.

The parents of one of the affected children filed a suit under 42 U.S.C. § 1983, asserting that the practice violated the Establishment and Free Exercise Clauses of the First Amendment of the Constitution of the United States, and in their complaint plaintiffs moved for an injunction.

Now get a load of the ruling of a federal judge concerning this affair:

Even if one religion of secular humanism were established through public school textbooks, such conduct would not allow establishment of a second religion, Christianity, in public schools.

Doe v. Human, 725 F.Supp. 1503 (W.D. Ark. 1989)

The judge in this case, Morris Sheppard Arnold, was then apparently rewarded for his "Bible trashing" by being appointed to the Eighth Circuit Court of Appeals and where he joined his brother, Richard Arnold, then Chief Judge of the Circuit, in violation of the federal anti-nepotism statute, 28 U.S.C. § 458.

It is unfortunate that Chief Justice William Rehnquist is ignored in this regard:

In Abington School District v. Schempp, 83 S.Ct. 1560, 1567 (1963), the Court made the truly remarkable statement that "the views of Madison and Jefferson, preceded by Roger Williams, came to be incorporated not only in the Federal Constitution but likewise in those of most of out States" (footnote omitted). On the basis of what evidence we have, this statement is demonstrably incorrect as a matter of history (footnote omitted). And its repetition in varying forms in succeeding opinions of the Court can give it no more authority than it possesses as a matter of fact; stare decisis may bind courts as to matters of law, but it cannot bind them a to matters of history.

Wallace v. Jaffree, 105 S.Ct. 2479, 2512 (1985)

In case you're wondering where today's Supreme Court gets the authority to amend the Constitution by changing its meaning without having their thought processes trivialized by a national referendum as required by Article V, they gave it to themselves.

Stare decisis (to abide by decided decisions) is a cornerstone of our legal system, but it has less power in constitutional cases, where, save for constitutional amendments, this Court is the only body able to make needed changes. Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3056 (1989).

Trace the origin of the Webster case and you will see the real reason federal judges don't want the Bible in the public school system.

Harry Blackmun used the "philosophy" of the Stoics, an ancient Greek sect, as part of his justification for the idea that, "life does not begin until live birth." Roe v. Wade, 93 S.Ct. 705, 730 (1973). This is contradicted by Scripture, see Job 3:3.

The Stoics were followers of a god known as "Zeus" to the Greeks. His name was "Jupiter Olympus" to the Romans.

In Hebrew, his name was Baal.

That is, on January 22, 1973, the United States Supreme Court installed Baal worship as the official religion of the United States.

The Congress is considering a constitutional amendment to restore school prayer.

It isn't necessary.

The only thing that is necessary is to bring Bills of Impeachment against federal judges issuing these foundationless opinions.

Write your Congressman (House of Representatives) and demand that he do so. If he doesn't, impeach him at the ballot box.

Michael H. Brown  Author of: Erwin Rommel School of Law: How to Defeat an Illegal Legal System