Ideas and Society

Editor’s Note: The following is part four in a series on religious liberty. To see the previous installment, click here. 

Does all this mean the government can take sides on the question of God? Emphatically, yes. The government under the Framers did take sides on the existence of God, and clearly they did not intend the Constitution to ever inhibit the government from doing so.

Some people might try to challenge the word “same,” as used by the Court when it said the religion clauses provide “the same” protection as Jefferson’s Statute (i.e. “the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective, and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute”) The only argument that could be used is to say that “the same” does not really mean “the same.” The way these people would probably go about arguing this is to cite the fact that the Court also said:

The “establishment of religion” clause of the First Amendment means at least this: 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. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect “a wall of separation between church and State.”

The important three words in the first line are: “means at least.” They would have to argue that this is broader than the provision in Jefferson’s Statute, and therefore is not “the same.” The provision in Jefferson’s Statute reads:

That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.

The fallacy of this argument is that it misses the fact that the Court could have just as easily said that the Virginia Statute also “means at least” all of those same things. The Statute did not enumerate every conceivable application of its use, nor did the religion clauses. That doesn’t make them different. The uses which apply to one also apply to the other.

It is not valid to argue that because the Court’s description uses more words and cites more specifics that it is broader than the scope of the Virginia Statute. Using that reasoning, the Court’s “description” of the religion clauses would be broader than the scope of the religion clauses, which use very few words and no specifics. In other words, the description does not in any sense contradict the Virginia Statute and is absolutely consistent with the Court’s claim that the two things offer the same intended protections.