The Constitution and Separation of Church and State

PART VIII

1871
Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union
Chapter XIII
Of Religious Liberty
Those things which are not lawful under any of the American constitutions may be stated thus:---

1. Any law respecting an establishment of religion. The legislatures have not been left liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religions persuasions or mode of worship. There is not complete religious liberty where any one sect is favored by the state and given an advantage by law over other sects. Whatever establishes a distinction against one clam or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. It is not mere toleration which is established in our system, but religions equality.

2. Compulsory support, by taxation or otherwise, of religions instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.

3. Compulsory attendance upon religions worship. Whoever is not led by choice or a sense of duty to attend upon the ordinances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or map owe to his fellow citizen or to society; but those which spring from the relations between himself and his maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws me obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle ceremonies; which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship.

4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is to place itself between the finite being and the Infinite when the former is seeking to render the homage that is due, and a mode which commends itself to his conscience and judgment as being suitable for him to render and acceptable to its object.

5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation.

These are the prohibitions which in some form of words are to be found in the American Constitutions, and which secure freedom of conscience and of religious worship. No man in religious matters is to be subjected to the censorship of the State or of any public authority; and the State is not to inquire into or take notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.

Source of Information:

Treatise on the Constitutional Limitations Which Rest upon the Legislative Powers of the States of the American Union, By Thomas M. Cooley, LL.D., Second Edition, Little, Brown, and Company 1871, pp (467-478)

December Term 1872

Editor's Note:
In most cases I do not include, quote or cite state court cases, not even state Supreme Court cases from the 1784-1947 time period. The reason being, those cases involved state laws, state constitutions, etc, and during that period of time, the concept of separation of church and state that was embodied in the Federal Constitution did not apply to the states. You will note that many of the authors, included in this study, of the written and or spoken word who did support some sort of connection, union, etc of religion and the state did cite and or quote state court cases to bolster their arguments. Especially court cases that supported claims that Christianity was part of the Common Law and that the Common Law was at the foundation of the laws of this nation. I did include such cites and quoting, but otherwise I have avoided state cases.

This Ohio case is an exception, and is an exception because, it does mention the national government, and it offers a different opinion regarding the status of Common law/Christianity., In short the opinion and decision of the court, while only binding on Ohio, did present an argument that spanned common themes raised by other that touched on both a state and the national level.

Supreme Court of Ohio.

December Term, 1872.

The Board of Education of the City of Cincinnati v. John D. Minor et al (1)

We are told that this word " religion " must mean " Christian religion," because " Christianity is a part of the *common law of this country," lying behind and above its Constitutions. Those who make this assertion can hardly be serious, and intend the real import of their language. If Christianity is a law of the State, like every other law, it must have a sanction. Adequate penalties must be provided to enforce obedience to all its requirements and precepts. No one seriously contends for any such doctrine in this country, or, I might almost say, in this age of the world. The only foundation -- rather, the only excuse -- for the proposition that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its Constitutions and laws are made by a Christian people. And is not the very fact that those laws do not attempt to enforce Christianity, or to place it upon exceptional or vantage ground, itself a strong evidence that they are the laws of a Christian people, and that their religion is the best and purest of religions? It is strong evidence that their religion is indeed a religion " without partiality," and therefore a religion " without hypocrisy." True Christianity asks no aid from the sword of civil authority. It began without the sword, and wherever it has taken the sword, it has perished by the sword. To depend on civil authority for its enforcement is to acknowledge its own weakness, which it can never afford to do. It is able to fight its own battles. Its weapons are moral and spiritual, and not carnal. Armed with these, and these alone, it is not afraid nor " ashamed " to be compared with other religions, and to withstand them single-handed. And the very reason why it is not so afraid or " ashamed " is that it is not the power of man," but " the power of God," on which it depends. True Christianity never shields itself behind majorities. Nero, and the other persecuting Roman emperors, were amply supported by majorities; and yet the pure and peaceable religion of Christ in the end triumphed over them all; and it was only when it attempted, itself, to enforce religion by the arm of authority, that it began to wane. A form of religion that cannot live under equal and impartial laws ought to die, and sooner or later must die.

*Legal Christianity is a solecism, a contradiction of terms. When Christianity asks the aid of government beyond mere impartial protection, it denies itself. Its laws are divine, and not human. Its essential interests lie beyond the reach and range of human governments. United with government, religion never rises above the merest superstition; united with religion, government never rises above the merest despotism; and all history shows us that the more widely and completely they are separated, the better it is for both.

Religion is not -- much less is Christianity or any particular system of religion -- named in the preamble to the Constitution of the United States as one of the declared objects of government; nor is it mentioned in the clause in question, in our own Constitution, as being essential to anything beyond mere human government. Religion is " essential" to much more than human government. It is essential to man's spiritual interests, which rise infinitely above, and are to outlive, all human governments. It would have been easy to declare this great truth in the Constitution; but its framers would have been quite out of their proper sphere in making the declaration. They contented themselves with declaring that religion is essential to good government; providing for the protection of all in its enjoyment, each in his own way, and providing means for the diffusion of general knowledge among the people.
The declaration is not that government is essential to good religion, but that religion is essential to good government. Both propositions are true, but they are true in quite different senses. Good government is essential to religion for the purpose declared elsewhere in the same section of the Constitution ; namely, for the purpose of mere protection. But religion, morality, and knowledge are essential to government, in the sense that they have the instrumentalities for producing and perfecting a good form of government. On the other hand, no government is at all adapted for producing, perfecting, or propagating a good religion. Religion, in its widest and best sense, has most, if not all, *the instrumentalities for producing the best form of government. Religion is the parent, and not the offspring, of good government. Its kingdom is to be first sought, and good government is one of those things which will be added thereto. True religion is the sun which gives to government all its true lights, while the latter merely acts upon religion by reflection.
Properly speaking, there is no such thing as " religion of state." What we mean by that phrase is, the religion of some individual, or set of individuals, taught and enforced by the State. The State can have no religious opinions; and if it undertakes to enforce the teaching of such opinions, they must be the opinions of some natural person, or class of persons. If it embarks in this business, whose opinion shall it adopt? If it adopts the opinions of more than one man, or one class of men, to what extent may it group together conflicting opinions? or may it group together the opinions of all? And where this conflict exists, how thorough will the teaching be! Will it be exhaustive and exact, as it is in will elementary literature and in the sciences usually taught to children., and, if not, which of the doctrines or truths claimed by each will be blurred over, and which taught in preference to those in conflict? These are difficulties which we do not have to encounter when teaching the ordinary branches of learning. It is only when we come to teach what lies" beyond the scope of sense and reason "- what from its very nature can only be the object of faith--that we encounter these difficulties. Especially is this so when our pupils are children, to whom we are compelled to assume a dogmatical method and manner, and whose faith at last is more a faith in us than in anything else. Suppose the State should undertake to teach Christianity in the broad sense in which counsel apply the term, or the " religion of the Bible," so as also to include the Jewish faith,-- where would it begin how far would it go? and what points of disagreement would be omitted.

If it be true that our law enjoins the teaching of the *Christian religion in the schools, surely, then, all its teachers should be Christians. Were I such a teacher, while I should instruct the pupils that the Christian religion was true and all other religions false, I should tell them that the law itself was an unchristian law. One of my first lessons to the pupils would show it to be unchristian. That lesson would be: "Whatsoever ye would that men should do to you, do ye even so to them ; for this is the law and the prophets." I could not look the veriest infidel or heathen in the face, and say that such a law was just, or that it was a fair specimen of Christian republicanism. I should have to tell him that it was an outgrowth of false Christianity, and not one of the "lights" which Christians are commanded to shed upon an unbelieving world. I should feel bound to acknowledge to him, moreover, that it violates the spirit of our constitutional guaranties, and is a state religion in embryo; that if we have no right to tax him to support " worship," we have no right to tax him to support religious instructions; that to tax a man to put down his own religion is of the very essence of tyranny; that however small the tax, it is a first step in the direction of an " establishment of religion;" and I should add, that the first step in that direction is the fatal step, because it logically involves the last step.

But it will be asked, How can religion, in this general sense, be essential to good government? Is atheism, is the religion of Buddha, of Zoroaster, of Lao-tse, conducive to good government! Does not the best government require the best religion? Certainly the best government requires the best religion. It is the child of true religion, or of truth on the subject of religion, as well as on all other subjects. But the real question here is not, What is the best religion but, How shall this best religion be secured? I answer, It can best be secured by adopting the doctrine of this seventh section in our own bill of rights, and which I summarize in two words, by calling it the doctrine of "hands off." Let the State not only keep its own hands off; but let it also see to it that religious sects keep their hands off each *other. Let religious doctrines have a fair field, and a free, intellectual, moral, and spiritual conflict. The weakest --that is, the intellectually, morally, and spiritually weakest--will go to the wall, and the best will triumph in the end. This is the golden truth which it has taken the world eighteen centuries to learn, and which has at last solved the terrible enigma of " church and state." Among the many forms of stating this truth, as a principal of government, to my mind it is nowhere more fairly and beautifully set forth than in our own Constitution. Were it in my power, I would not alter a syllable of the form in which it is there put down. It is the true republican doctrine. It is simple and easily understood. It means a free conflict of opinions as to things divine; and it means masterly inactivity on the part of the State, except for the purpose of keeping the conflict free, and preventing the violation of private rights or of the public peace. Meantime, the State will impartially aid all parties in their struggles after religious truth, by providing means for the increase of general knowledge, which is the handmaid of good government, as well as of true religion and morality. It means that a man's right to his own religious convictions, and to impart them to his own children, and his and their right to engage, in conformity thereto, in harmless acts of worship toward the Almighty, are as sacred in the eye of the law as his rights of person or property, and that although in the minority, he shall be protected in the full and unrestricted enjoyment thereof. The "protection " guaranteed by the section in question, means protection to the minority. The majority can protect itself Constitutions are enacted for the very purpose of protecting the weak against the strong; the few against the many.
As with individuals, so with governments, the most valuable truths are often discovered late in life; and when discovered, their simplicity and beauty make us wonder that we had not known them before. Such is the character and history of the truth here spoken of. At first sight it seems to lie deep; but on close examination, we find it to be only *a new phase or application of a doctrine with which true religion everywhere abounds. It is simply the doctrine of conquering an enemy by kindness. Let religious sects adopt it toward each other. If you desire people to fall in love with your religion, make it lovely. If you wish to put down a false religion, put it down by kindness, thus heaping coals of fire on its head. You cannot put it down by force; that has been tried. To make the attempt, is to put down your own religion, or to abandon it. Moral and spiritual conflicts cannot be profitably waged with carnal weapons. When so carried on, the enemy of truth and right is too apt to triumph. Even heathen writers have learned and taught this golden truth. Buddha says: " Let a man overcome anger by love, evil by good, the greedy by liberality, and the slanderer by a true and upright life." Christianity is full of this truth, and, as a moral code, might be said to rest upon it. It is in hoc signo, by the use of such weapons, that Christianity must rule, if it rules at all.
We are all subject to prejudices, deeper and more fixed on the subject of religion than on any other. Each is, of course, unaware of his own prejudices. A change of circumstances often opens our eyes. No Protestant in Spain, and no Catholic in this country, will be found insisting that the government of his residence shall support and teach its own religion to the exclusion of all others, and tax all alike for its support. If it is right for one government to do so,then it is right for all. Were Christians in the minority here, I apprehend no such a policy would be thought of by them. This is the existing policy of most governments in the world. Christian countries, however, are fast departing from it--witness Italy, Prussia, Spain, England. The true doctrine on the subject is the doctrine of peaceful disagreement, of charitable forbearance, and perfect impartiality. Three men -- say, a Christian, an infidel, and a Jew--ought to be able to carry on a government for their common benefit, and yet leave the religious doctrines and worship of each unaffected thereby, otherwise than by fairly and impartially protecting each, and aiding each in his *searches after truth. If they are sensible and fair men, they will so carry on their government, and carry it on successfully, and for the benefit of all. If they are not sensible and fair men, they will be apt to quarrel about religion, and, in the end, have a bad government and bad religion, if they do not destroy both. Surely they could well and safely carry on any other business, as that of banking, without involving their religious opinions, or any acts of religious worship. Government is an organization for particular purposes. It is not almighty, and we are not to look to it for everything. The great bulk of human affairs and human interests is left by any free government to individual enterprise and individual action. Religion is eminently one of these interests, lying outside the true and legitimate province of government.

Counsel say that to withdraw all religious instruction from the schools would be to put them under the control of " infidel sects." This is by no means so. To teach the doctrines of infidelity, and thereby teach that Christianity is false, is one thing; and to give no instructions on the subject is quite another thing. The only fair and impartial method, where serious objection is made, is to let each sect give its own instructions, elsewhere than in the State schools, where of necessity all are to meet; and to put disputed doctrines of religion among other subjects of instruction, for there are many others, which can more conveniently, satisfactorily, and safely be taught elsewhere. Our charitable, punitive, and disciplinary institutions stand on an entirely different footing. There the State takes the place of the parent, and may well act the part of a parent or guardian in directing what religious instructions shall be given.

The principles here expressed are not new. They are the same, so far as applicable, enunciated by this court in Bloom v. Richards, 2 Ohio State, 3871 and in McGatrick v. Wason, 4 Ohio State, 566. They are as old as Madison, and were his favorite opinions. Madison, who had more to do with framing the Constitution of the United States than any other man, and *whose purity of life and orthodoxy of religious belief no one questions, himself says :

"Religion is not within the purview of human government." And again he says: "Religion is essentially distinct from human government, and a exempt from its cognizance. A connection between them is injurious to both. There are causes in the human breast which insure the perpetuity of religion without the aid of law.(2)

In his letter to Governor Livingston, July 10, 1822, he says: "I observe with particular pleasure the view you have taken of the immunity of religion from civil government, in every case where it does not trespass on private rights or the public peace. This has always been a favorite doctrine with me."(3)

I have made this opinion exceptionally and laboriously long. I have done so in the hope that I might thereby aid in bringing about a harmony of views and a fraternity of feeling between different classes of society, who have a common interest in a great public institution of the State, which, if managed as sensible men ought to manage it, I have no doubt, will be a principal instrumentality in working out for us what all desire -- the best form of government and the purest system of religion.

I ought to observe that, in our construction of the first named of the two resolutions in question, especially in the light of the answer of the Board, we do not understand that any of the "readers," so called, or other books used as mere lesson-books, are excluded from the schools, or that any inconvenience from the necessity of procuring new books will be occasioned by the enforcement of the resolutions.

It follows that the judgment of the Superior Court will be reversed, and the original petition dismissed.
Judgment accordingly.
Footnotes:
(1) The opinion in this case was rendered by Mr. Justice Welch. Stanley Matthews, since a Justice of the Supreme Court of the United States, and George Hoadley, subsequently Governor of Ohio, were of the counsel for the Board of Education, and delivered clear and effective speeches at the trial of the case before the Superior Court. The defendants had brought their action to the Superior Court of Cincinnati to enjoin the Board of Education from carrying into effect two resolutions adopted by the board, November I, 1869. which read as follows:

"Resolved, That religious instruction, and the reading of religious books, including the Holy Bible, are prohibited in the common schools of Cincinnati, it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the common school fund.

" Resolved, That so much of the regulations on the course of study and text-books in the intermediate and district schools (page 213 annual report) as reads as follows:'The opening exercises in every department shall commence by reading a portion of the Bible, by or under the direction of the teacher, and appropriate singing by the pupils,' be repealed."

Two of the judges of the Superior Court, Hagans and Storer, decided in favor of religion in the public schools, and enjoined the board from carrying the foregoing resolutions into effect. The other member of the court, Judge Taft, dissented. The case was then carried to the State Supreme Court, which reversed the decision of the lower court, and wrote a decision which proved of national interest, and justifies its republication, For decision entire, see 23 Ohio State, 211r et seq.

(2) Madison to Edward Everett, March 19, 1823, see page

(3) In the same letter he declared: " We are teaching the world . . . that religion flourishes in greater purity without, than with, the aid of government."

Source of Information:
Supreme Court of Ohio. December Term, 1872. The Board of Education of the City of Cincinnati V. John D. Minor et al. American State Papers Bearing On Sunday Legislation, Revised and Enlarged Edition, Compiled and Annotated by William Addison Blakely, Revised Edition Edited by Willard Allen Colcord, The Religious Liberty Association, Washington D.C. 1911, pp 460-469.

See Part IX of this topic for additional reference materials.