The Northwest Ordinance is perhaps the most frequently cited accommodationist "proof" that the Constitution did not separate church and state. Given it's importance to the accommodationist position, our discussion of the Ordinance will be fairly detailed.
The accomodationist argument
The Northwest Ordinance was first enacted by Congress in 1787, when the nation was still operating under the Articles of Confederation. The purpose of the Ordinance was to create a temporary government for the Northwest Territory (a huge swath of land that extended from the great lakes to the Ohio river valley), and to establish a procedure by which territories could apply for admission into the Union. The Ordinance was reenacted with very minor changes in 1789, after the passage of the Constitution.
Accommodationist make at least two claims about the Northwest Ordinance: (1) the Ordinance in some way violates the separationist reading of the First Amendment, and (2) the reenactment of the Ordinance in 1789 can be read as a sort of commentary on the First Amendment.
As to (1), accommodationists argue that the first sentence of Article III of the Northwest Ordinance violates the separationist understanding of the First Amendment. The sentence reads as follows:
Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.
Accommodationists note that the wording of Article III seems to link the encouragement of education to the promotion of religion. One accommodationist, David Barton, for example, goes so far as to suggest that Article III "required religion to be included in schools" (The Myth of Separation, p. 39). Less extreme accommodationists would claim merely that the wording of Article III indicates that the authors of the Ordinance were comfortable with "promoting religion, morality and knowledge in public education" (John Baker, "The Establishment Clause as Intended...," in Eugene W. Hickok, Jr., The Bill of Rights: Original Meaning and Current Understanding, p. 49). Additionally, the language of the Article seems to link religion to "good government," which can be read as supportive of the accommodationist position.
As to (2), accommodationists note that the Northwest Ordinance was reenacted by the same Congress that finalized the text of the First Amendment. Accordingly, accommodationists argue that the Ordinance indicates that the First Amendment was not intended by Congress to rule out a close connection between government and religion. David Barton, the accommodationist quoted above, for example, notes that,
The Northwest Ordinance received final House approval on July 21, 1789, Senate approval on August 4, 1789, and was signed into law by President George Washington on August 7, 1789, in the midst of the time that the same Congress was formulating the First Amendment (from June 7, 1789, to September 25, 1789). (The Myth of Separation, p. 37)
and then later argues:
Since the same Congress which prohibited the federal government for the "establishment of religion" also required that religion be included in schools, the Framers obviously did not view a federal requirement to teach religion in schools a violation of the First Amendment. (The Myth of Separation, p. 39).
The Separationist Response
While the accommodationist argument looks plausible on its face, a little digging suggests that it self-destructs on the historical and legal data. Not only does the Northwest Ordinance not violate the separationist understanding of the First Amendment (or otherwise support accommodationist claims), the first sentence of Article III was placed in the Ordinance under the most suspicious of circumstances.
First examine the history of the first sentence of Article III of the Northwest Ordinance.
Then consider the following arguments:
The Northwest Ordinance:
- does not violate the separationist understanding of the First Amendment.
- cannot be read as a commentary on the First Amendment;
- had no constitutional authority.
Finally, we note that:
- The accommodationist argument omits evidence that the Ordinance's framers had no desire to aid religion.