American journal First Things has this week dusted off a 1998 speech on the subject of church and state by then Supreme Court justice Antonin Scalia. In the speech, which is a fine elucidation of key ideas of more than historic value, Scalia explains how the United States ‘has consistently affirmed a national belief in God—but not a national belief in a particular religion.’ This is the ‘key distinction,’ he says, in a ‘distinctively American approach toward church and state,’ between ‘official encouragement of religion, which was always practiced, and official favoritism of particular religious sects, which was prohibited.’
In support of this claim, Scalia quotes at length the person he calls the ‘best exemplar’ of this American religious tradition, President George Washington. First from his 1796 Farewell Address to the nation:
‘Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.’
And then from the first President’s earlier 1789 proclamation of the nation’s first Thanksgiving:
‘Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor—and whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”
‘Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be—That we may then all unite in rendering unto him our sincere and humble thanks—for his kind care and protection of the People of this Country previous to their becoming a Nation—for the signal and manifold mercies, and the favorable interpositions of his Providence which we experienced in the course and conclusion of the late war—for the great degree of tranquillity, union, and plenty which we have since enjoyed—for the peaceable and rational manner, in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted—for the civil and religious liberty with which we are blessed; and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.
‘And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions—to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually—to render our national government a blessing to all the people, by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed—to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord—to promote the knowledge and practice of true religion and virtue, and the encrease of science among them and us—and generally to grant unto all Mankind such a degree of temporal prosperity as he alone knows to be best.’
Scalia might also have quoted Washington’s successor, President John Adams, from 1798:
‘We have no Government armed with Power capable of contending with human Passions unbridled by morality and Religion. Avarice, Ambition and Revenge or Galantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.’
Scalia shows how this doctrine of official encouragement of religion has been expressed in longstanding American practice, including ‘publicly supported army and navy chaplains, House and Senate chaplains who open each day’s sessions with a prayer, exemptions from state property taxes for houses of worship, “In God We Trust” on the coinage (since the Civil War), and yes, even opening of the sessions of the Supreme Court with the invocation “God save the United States and this Honorable Court.”’
He illustrates how the doctrine was still guiding jurisprudence as recently as 1952, when William O. Douglas gave the following Court opinion upholding the right of schools to allow children out of class early for religious instruction:
‘We are a religious people whose institutions presuppose a Supreme Being. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. The government must be neutral when it comes to competition between sects. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction.’
However, not long later, Scalia explains, the Court began abandoning this original doctrine in favour of a new one which aimed for neutrality not only between religious sects but also between religion and non-religion. In 1968, for example, the Court gave the following opinion:
‘Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’
This new doctrine was applied, for instance, in 1989 to strike down sales tax exemptions for doctrinal religious publications, since it was now deemed unconstitutional to ‘favor religious belief.’
Scalia points out, rightly, that this new doctrine, besides being contrary to time-honoured American tradition, is also contradicted by the very law it claims to rest on: the First Amendment, whose Free Exercise Clause gives ‘special favor to the free exercise of religion.’ He also highlights how the Court itself continues to lack consistency in this area, as despite its new doctrine it has recently upheld ‘the longstanding practice of legislative chaplains who open sessions of both state and federal legislatures with non-denominational prayers’ and ‘property-tax exemptions for church property’.
Scalia submits that the Court has changed its opinion once and it could change it again – back to the original and better tradition of favour for religion in general over irreligion and atheism. This would help restore in law the due honour reserved to religion as service of the Creator and Supreme Being, as well as provide a more coherent basis for the Court’s continued support for certain American traditions of civil religion. We can certainly hope so.
But what of America as a Christian nation? Scalia does not mention this possibility, but it is plain that he would deem it to be a favouring of one sect over others, which was in his view precisely what the Founders were seeking to prohibit. However, whatever was the prevailing view during the Founding, it certainly appears to be the case that during the 19th century the idea of America as constitutionally Christian gained a certain purchase. Here, for instance, is John Adams again, now in 1813 in retirement, writing to Thomas Jefferson:
‘And what were these principles [upon which the Founders achieved independence]? I answer, the general principles of Christianity in which all those sects were united and the general principles of English and American liberty in which all these young men united … Now I will avow that I then believed and now believe that those general principles of Christianity are as eternal and immutable as the existence and attributes of God. And that those principles of liberty are as unalterable as human nature.’
Notably the Supreme Court itself has on occasion affirmed this idea, including in 1892:
‘We are a Christian people, and the morality of the country is deeply engrafted upon Christianity… This is a Christian nation… While because of a general recognition of this truth the question has seldom been presented to the courts, yet we find that in [an earlier judgment], it was decided that, ‘Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania.’’
Such sentiments suggest that in between the Founding era of ‘favour for religion in general’ and the modern era of ‘no favour for religion’ there was a period of ‘favour for religion plus more or less officially Christian’. This is not perhaps so surprising given the prevalence of Christianity in America and its vitality in the 19th and early 20th centuries. But is it also related to the changing role of the state during that time?
In the 18th century the state was a lot smaller and a lot less active than it is now so there were many more areas in which religion could be freely engaged without being subject to constitutional principles of non-establishment and neutrality with their various prohibitions. The modern state which emerged during the 19th century, on the other hand, was much larger and more active, becoming heavily involved in education and welfare programmes, among many other things. This made the impact of the ‘wall of separation’ between state and religion on the free exercise of religion far more acute, potentially imposing state religious neutrality in areas which had previously been non-state and free for religious involvement. The Supreme Court also began the process of ‘incorporation’ whereby it applied Bill of Rights provisions in the Constitution, including the First Amendment, to state and local government and not just to the federal government.
In this context, understanding America as subscribing to ‘general Christianity’, as well as being broadly true, was also useful for enabling religion to continue to play its traditional role in areas such as schooling, with prayers and Bible reading remaining staples in public schools. Such practices continued until the 1960s, when the Supreme Court struck them down as contrary to non-establishment and state neutrality. Areas of ongoing contention in the relationship between America and Christianity include display of the Ten Commandments and crosses on government property, the public celebration of Christmas, and the use of church services to mark certain official state events. Such practices would be much more straightforward to justify if America could return to its earlier notion that it is a generally Christian country.
It is easy to agree with Scalia that the recent shift to neutrality between religion and non-religion is a regrettable change that leaves many inconsistencies in government practice and overturns or threatens good American traditions – not least the free exercise of religion itself, which relies on a certain favour towards religion, and has been under siege in recent years, though with some relief under President Trump.
But would we not want to go further and say that the 19th century move to recognise America as a Christian nation was more honest, not to mention necessary given the huge expansion of the modern state? The state takeover of education, for example, which ultimately led to the ejection of the Bible and prayer from public schools shows the dangers of a big modern activist state that disavows the religion of its people. And the driving out of religion from education and public life is not good for the faith or good for America. America’s leaders need to heed once more the words of John Adams, that their Constitution ‘was made only for a moral and religious People’ and is ‘wholly inadequate to the government of any other.’