The Constitutional Principle: Separation of Church and State
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Additional 19th Century Cases

A look at additional 19th century cases that add insight and balance to the material above including Bloom v Cornelius (Ohio Supreme Court, 1853); Board of Education of the City of Cincinnati, plaintiff in error, v Minor (Ohio Supreme Court, 1872)
Edited by Jim Allison

December term 1853 Ohio Supreme court Bloom v Cornelius

The case involved a contract that was signed on a Sunday. The court ruled the it being signed on a Sunday did not make it invalid. (Some states had laws on their books that did make such contracts invalid.)

However what is important for us is not just the decision but the following quotes which can be found in the opinion and which are in direct conflict with some of the quotes that both U. S. Supreme Court Justice David Brewer and Religious Right activist and Author David Barton use to prove their arguments.

"Christianity is a part of the common law of England, but, under the provisions of our constitution, neither Christianity nor any other system of religion is a part of the law of this state."

(By the way, this is a part of the holding of this case and not part of dicta. If an Ohio Supreme Court could have made that ruling in the 1850's a Mass and or Pa court could have made a similar ruling had it wanted to at earlier times in the 1800's)

From the same holding:

"We have no union of Church and State, nor has our government ever been vested with authority to enforce any religious observance simply because it is religious."

From the same holding

"The statute, prohibiting common labor on the Sabbath, could not stand for a moment as the law of this state, if its sole foundation was the Christian duty of keeping the day holy, and its sole motive to enforce the observance of that duty. It is to be regarded as a mere municipal or police regulation, whose validity is neither strengthened nor weakened by the fact that the day of rest it enjoins is the Sabbath day."

(Signing a contract on Sunday would have been viewed as common labor)

*Some* states thought that Christianity was part of the common law; or that it mattered or would have applied here, others didn't. It wasn't universal.

SEE: The word Religion does not mean Christian for the opinion of Supreme Court, State of Ohio, December Term, 1872 in the case BOARD OF EDUCATION OF THE CITY OF CINCINNATI, plaintiff in error, v. MINOR at al. (28 Ohio St. 211) Constitutional Law -- Bible in the Public Schools.


An additional fact is not mentioned often by Barton and others who try to use the court cases of the late 1700s and the 1800s to advance their agenda: Some state Supreme Courts began ruling in the late 1800s that required daily prayer and Bible reading in public schools was unconstitutional.

Ohio, 1869-1872 (The Board of Ed of the city of Cincinnati. V Minor, mentioned above.) On appeal, the Ohio Supreme court said public schools could not be required to hold daily religious exercises.

Wisconsin, 1890: The state Supreme Court stuck down mandatory Bible reading. Prayer and hymn singing in public schools as did Supreme Courts in Nebraska (1903) and Illinois (1910) Courts in South Dakota, Washington and Louisiana did the same in the early 1900s. Iowa (1814) and Kansas (1904) ruled such practices were constitutional.

ALSO SEE: Was school prayer widespread before 1962?

The point of the above is you will find a very mixed bag when you begin to examine court cases in this nation's early years. You will find that there weren't that many cases to begin with:

Moving into the 1800s and continuing on into this century; battles were, at times, fought in the state courts. Between 1800 and 1920 there were 87 recorded Sabbath closing law cases, 112 recorded church property disputes, 18 public school prayer and bible reading cases, 15 cases involving public aid to sectarian schools, and 22 reported blasphemy cases. (9)

Footnote

(9). "Death of the Christian Nation: The Judiciary and Church-State Relations," H. Frank Way, Journal of Church and State, Volume 29, Autumn 1987, Number 3, pp 511.

You will find that the rulings in some of these cases and the dicta in many of these cases were filled with religious references and in some cases the rulings favored the same. But mostly, you will see that to be the case early on, in the late 1700s and up through the mid 1800s. Later in the 1800s, that began to become more and more.

For a very good article on this, see:

"Death of the Christian Nation: The Judiciary and Church-State Relations," H. Frank Way, Journal of Church and State, Volume 29, Autumn 1987, Number 3

Separation of church and state is a process. It only began in the late 1700s in this country, on the state and national level. It was and is a process that still continues today.


 
 
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