Tag Archives: Thomas Jefferson

XI. The Fight against the Assessment Bill Continues; The Virginia Act for Religious Liberty, Drafted by Thomas Jefferson, Passes instead; Thomas Jefferson’s Unswerving Position on Religious Liberty, All Vestiges of the Establishment Removed


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Jerald Finney
Copyright © March 5, 2018


Virginia Bill For Religious Freedom -Passed in 1786. Click above image to go to the online PDF.

The people were against the assessment bill, and the Presbyterians reversed their position, opposed the bill, and for the first time, on August 10, 1785, the whole Presbyterian body supported Jefferson’s “Bill for Establishing Religious Freedom,” “although that bill had been before the Legislature since June 1779.” The Baptists asked all counties which had not yet prepared a petition to do so and agreed to prepare a remonstrance and petition against the assessment. Thus the Presbyterians and Baptists stood together, but for different motives. Mr. Madison’s opinion was that the Presbyterians were “moved by either a fear of their laity or a jealousy of the Episcopalians. The mutual hatred of these sects has been much inflamed by the late act incorporating the latter…. Writings of Madison, I., 175.”[1]

Patrick Henry, the leading proponent of the assessment bill was elected governor, “depriving the bill of its ablest legislative leader.” The Memorial and Remonstrance had received wide distribution. At the next session, the General Assembly was flooded with petitions and memorials from all parts of the State, overwhelmingly against the bill. The bill was defeated by three votes.

On January 16, 1786, the Virginia Act for Religious Liberty, drafted by Thomas Jefferson, was passed instead. That bill provided for religious liberty and freedom of conscience. Click here to see the entire PDF of the Bill. It stated, in part:

  • “I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;
  • that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such, endeavoring to impose them on others hath established and maintained false religions over the greatest part of the world and through all time;
  • that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;
  • that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …
  • that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own;
  • that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order; …
  • “II. Be it enacted by the General Assembly 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.
  • “III. And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare, that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights.”[2]

The act included three factors: church, state, and individual. It protected the individual from loss at the hands of the state incursion into his church affiliation, and implicitly banned church establishment. “It did not attempt to define the relations between Church and State except in terms of the individual.”[3]

Thomas Jefferson, the author of the above bill, never swerved from his devotion to the complete independence of church and state. He wrote:

  • “The care of every man’s soul belongs to himself. But what if he neglect the care of it? Well, what if he neglect the care of his health or estate, which more clearly relate to the state. Will the magistrate make a law that he shall not be poor or sick? Laws provide against injury from others; but not from ourselves. God himself will not save men against their wills.”[4]
  • “But our rulers can have no authority over such natural rights, only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God….
  • “Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.”[5]

The Baptists continued their struggle to remove all vestiges of the establishment until 1802 when the glebes were sold and all religious societies were placed on equal footing before the law. The glebes were tracts of land and buildings built thereon for the accommodation of the minister and his family, all at the expense of the people within the parish. The Baptists fought to have the act incorporating the Episcopal church repealed. Reuben Ford and John Leland attended the first 1787 assembly meeting as agents in behalf of the Baptist General Committee.[6] On August 10, 1787, the act incorporating the Episcopal church was repealed, and until 2001—when Jerry Falwell and trustees of the Thomas Road Baptist Church, who were joined by the American Civil Liberties Union, challenged the Virginia Constitutional provision forbidding the incorporation of churches in federal district court—no church in Virginia could be incorporated.[7]

“The Baptists continued to memorialize the Legislature … and in 1799 that body passed an act entitled ‘An Act to Repeal Certain Acts, and to Declare the Construction of the Bill of Rights and the Constitution Concerning Religion,’ which act declared that no religious establishment had legally existed since the Commonwealth took the place of the regal government, repealed all laws giving to the Protestant Episcopal church any special privileges, and declared that ‘the act establishing religious freedom’ contains the true construction of the Bill of Rights and of the Constitution; but no order was given for the sale of the glebes.”[8]

As the Anglican establishment in Virginia yielded to pressure from Baptists [and to a much lesser extent Presbyterians] so that religious liberty was established in that state, “[t]he same pressure, reinforced by the conditions of frontier living, ended the Anglican establishment in the Carolinas and Georgia…. [T]he conditions which made establishment possible never existed in the states admitted after Vermont, nor in the territories with the exception of unique Utah.”[9]

By the time the Constitutional Convention convened in 1787, “three states, Rhode Island, New York, and Virginia granted full religious freedom. Pennsylvania, Delaware, and Maryland demanded in different degrees adherence to Christianity. New Jersey, North Carolina, South Carolina, and Georgia demanded Protestantism.”[10]


Endnotes

[1] Lenni Brenner, editor, Jefferson and Madison on Separation of Church and State (Fort Lee, NJ: Barricade Books, Inc, 2004), p. 74 (letter dated August 20, 1785); Charles F. James, Documentary History of the Struggle for Religious Liberty in Virginia (Harrisonburg, VA.: Sprinkle Publications, 2007; First Published Lynchburg, VA.: J. P. Bell Company, 1900), p p. 134-139. Madison’s quote was from a letter to Mr. Jefferson.

[2] Cited in Norman Cousins, In God We Trust (Kingsport, Tennessee: Kingsport Press, Inc., 1958), pp. 125-127; see also, for an edited version, Living American Documents, Selected and edited by Isidore Starr, Lewis Paul Todd, and Merle Curti, (New York, Chicago, Atlanta, Dallas, Burlingame: Harcourt, Brace & World, Inc., 1961), pp. 67-69.

[3] William H. Marnell, The First Amendment: Religious Freedom in America from Colonial Days to the School Prayer Controversy (Garden City, New York: Doubleday & Company, Inc., 1964), pp. 96-97.

[4] Leo Pfeffer, Church, State, and Freedom (Boston: The Beacon Press, 1953), p. 94, citing Saul K. Padover, The Complete Jefferson (New York: Duell, Sloan & Pearce, 1943), p. 943. Keep in mind that although Pfeffer’s quotes of Jefferson and others often spoke of God and His sovereignty and freedom of conscience, Pfeffer passes over God as though he had not been mentioned.

[5] Pfeffer, citing Joseph L. Blau, Cornerstones of Religious Freedom in America (Boston: Beacon Press, 1949), pp. 78-79.

[6] James, pp. 142-146.

[7] See Falwell v. Miller, 203 F. Supp. 2d 624 (W.D. Va. 2002).

[8] James, pp. 142-145.

[9] Marnell, p. 130.

[10] Ibid., p. 98.

VII. The Revival Dies; Separate Churches Die; Baptist Denomination Grows; Formation of the Warren Association in 1770 To Obtain Religious Liberty; Isaac Backus’s Efforts; An Appeal to the Public

 


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VIII. Backus Presents Appeal for Religious Liberty at Continental Congress; Debate in the Newspapers; Warren Association Activities; Backus Urges Religious Liberty in New Massachusetts Constitution; John Adams Works against Religious Liberty

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Jerald Finney
Copyright © February 28, 2018


The revival died out almost as fast as it had appeared. Conversions became rare. People turned their attention to politics and controversy. The Separate churches and groups either died, or found their way into the Baptist camp. The Baptist denomination experienced an unprecedented growth. In 1740 no more than six Calvinistic Baptist churches existed in New England; but by 1800 there were more than 325 Baptist churches, most of them Calvinistic.[1]

The Warren Association, an association of Baptist churches, was formed in 1770. The main goal was to obtain religious liberty. This marked an important movement in the history of New England. An advertisement to all Baptists in New England was published requesting them to bring in exact accounts of their cases of persecution to the first annual meeting on September 11, 1770. The establishment feared the association and countered by dealing deceitfully with it and spreading lies about the association.[2]

Isaac Backus was the key member of the grievance committee of the Warren Association in September 1771. “[He soon] became the principal spokesman for the Baptists in their efforts to disestablish the Puritan churches. As such he did more than any other man to formulate and publicize the evangelical position on Church and State which was ultimately to prevail throughout America.”[3]

“An Appeal to the Public for Religious Liberty Against the Oppression of the Present Day” was the most important of the 37 tracts which Backus published during his lifetime and was central to the whole movement for separation of church and state in America. “It remains the best exposition of the 18th century pietistic concept of separation.”[4] In that tract, Backus argued, among other things:

  • “Basic to the Baptist position was the belief that all direct connections between the state and institutionalized religion must be broken in order that America might become a truly Christian country. Backus, like Jefferson and Madison, believed that ‘Truth is great and will prevail’—but by ‘Truth’ he meant the revealed doctrines of grace. His fundamental assumption was that ‘God has appointed two different kinds of government in the world which are different in their nature and ought never to be confounded together; one of which is called civil, the other ecclesiastical government.’ The two had been ‘confounded together’ by the Emperor Constantine and the Papacy and had ultimately been brought to New England by the Puritans ‘who had not taken up the cross so as to separate from the national church before they came away.’ A ‘Brief view of how civil and ecclesiastical affairs are blended together among us [in 1773] to the depriving of many of God’s people of that liberty of conscience which he [God] has given us’ utilized also the long–forgotten arguments of Roger Williams to defend the doctrines of separation.”[5]

Amidst persecutions of Baptists for failing to pay ministerial taxes, the association met on September 1773 and voted to refrain from giving any more certificates for tax exemption to pay the established minister. Backus listed the reasons why they would no longer obey “a law requiring annual certificates to the other denomination.” “Jefferson in his preamble to the Religious Liberty Act of Virginia and Madison in his famous Remonstrance of 1785 utilized essentially deistic arguments based upon reason and natural law. Backus’s arguments were pure pietism[:]”[6]

  • [To get a certificate] “implies an acknowledgement that religious rulers had a right to set one sect over another, which they did not have.” 2. Civil rulers have no right to impose religious taxes. 3. Such practice emboldens the “actors to assume God’s prerogative.” 4. For the church, which is presented as a chaste virgin to Christ, to place her trust and love upon others for temporal support is playing the harlot. 5. “[B]y the law of Christ every man is not only allowed but also required to judge for himself concerning the circumstantials as well as the essentials of religion, and to act according to the full persuasion of his own mind.” The practice tends to envy, hypocrisy, and confusion, and the ruin of civil society.[7]

An Appeal to the Public was pietistic America’s declaration of spiritual independence. Like Jefferson’s Declaration three years later, it contained a legal brief against a long train of abuses, a theoretical defense of principle, and a moral argument for civil disobedience.”[8] No answer was ever given to “An Appeal to the Public” which was published in Boston. The collection of taxes for support of the established religion continued with confiscation of property and imprisonments occurring.[9]


Endnotes

[1] William L. Lumpkin, Baptist Foundations in the South (Eugene, Oregon: Wipf & Stock Publishers, 2006), p. 20.

[2] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 154-156; pp. 408-409 of A History of New England… gives more on the formation of the Warren Association.

[3] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 109.

[4] Ibid., p. 123. The entire contents of the tract are in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968), pp. 303-343.

[5] Ibid., pp. 123-124.

[6] Ibid., p. 126.

[7] Backus, Volume 2, p. 178, citing “An Appeal to the Public for Religious Liberty.”

[8] McLoughlin, Isaac Backus and the American Piestic Tradition, p. 127.

[9] Backus, Volume 2, pp. 178-182. Christian, Volume I, p. 388.

VIII. Backus Presents Appeal for Religious Liberty at Continental Congress; Debate in the Newspapers; Warren Association Activities; Backus Urges Religious Liberty in New Massachusetts Constitution; John Adams Works against Religious Liberty


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IX. The Baptists Fight in the Courts; Reject Backus’s Advice; Backus Changes His Focus to Baptist Doctrines; Connecticut Continues To Persecute Dissidents; Connecticut Rejects Forced Establishment in 1818

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Jerald Finney
Copyright © February 28, 2018


Attempts to gain religious freedom continued. The Warren Association sent Isaac Backus to the Continental Congress in 1774 where he met with an Association of other Baptist churches from several adjacent colonies which had elected a large committee to assist. They presented their appeal for religious liberty. John Adams and Samuel Adams, neither of whom was a friend to separation of church and state, falsely asserted that Massachusetts had only a “very slender” establishment, hardly to be called an establishment, that the General Court was clear of blame and always there to hear complaints and grant reasonable help.[1] While Mr. Backus was gone, the lie was spread that he had gone to Philadelphia to break the union of the colonies.

All the time these happenings were going on, the issues were being debated in the newspapers. The Warren Association continued to publish to the public instances of persecution as well as to actively seek religious liberty from the government. The Warren Association presented a memorial on July 19, 1775, requesting religious liberty and pointing out the inconsistency of rebelling against England for taxing without representation while doing the same thing in the colonies. Ultimately, nothing came of this. In 1777, Mr. Backus prepared an address, which was supported by a large number from various denominations, urging religious liberty to the Assembly which had been empowered to frame a new Constitution which was accomplished in 1780. The Third Article of the new constitution “excluded all subordination of one religious sect to another,” but imprisonment, and confiscation of property from men who refused to acknowledge such subordination continued.[2]

In 1778, Mr. Backus wrote “Government and Liberty Described and Ecclesiastical Tyranny Exposed.” He quoted Charles Chauncy:

  • “We are in principle against all civil establishments in religion. It does not appear to us that God has entrusted the State with a right to make religious establishments…. We claim no right to desire the interposition of the State to establish that mode of worship, [church] government, or discipline we apprehend is most agreeable to the mind of Christ. We desire no other liberty than to be left unrestrained in the exercise of our principles in so far as we are good members of society.” This, said Backus, was all that Baptists asked. [3]
  • “Perhaps as a result of this tract, the General Assembly tried to conciliate the Baptists by appointing a Baptist minister to deliver the election sermon in May 1779. That minister, in his sermon, remained faithful to the principle of separation.”[4]

Massachusetts began efforts to adopt a new constitution in 1777. The proposed constitution was defeated, but a new effort which began in 1779 proved successful. John Adams worked against the Baptist position at the convention. Mr. Backus, although not a delegate, went to Boston to stand for Baptist principles during the constitutional convention. He lobbied, wrote newspaper articles, published new tracts, and informed his brethren of what was going on.[5]

Mr. Backus worked at the convention for a Bill of Rights. The first basic rights he listed were:

  • “All men are born equally free and independent, and have certain natural, inherent and unalienable rights, among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property, and persuing and obtaining happiness and safety.”
  • “As God is the only worthy object of all religious worship, and nothing can be true religion but a voluntary obedience unto his revealed will, of which each rational soul has an equal right to judge for itself; every person has an unalienable right to act in all religious affairs according to the full persuasion of his own mind, where others are not injured thereby. And civil rulers are so far from having any right to empower any person or persons to judge for others in such affairs, and to enforce their judgments with the sword, that their power ought to be exerted to protect all persons and societies, within their jurisdiction, from being injured or interrupted in the free enjoyment of his right, under any pretence whatsoever.”[6]

Backus’ position, although seeking the same end, was from a different point of view than that of George Mason, Thomas Jefferson and James Madison.

“Three years earlier George Mason, with Jefferson’s approval and Madison’s amendments, had written a statement on religious freedom into the Bill of Rights in the Virginia Constitution:

  • ‘That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.’
  • “Backus’s tone was that of a New Light pietist; Mason’s that of an Enlightened latitudinarian. The Virginians spoke of the ‘Creator,’ Backus spoke of ‘God.’ Mason stressed reason and duty, Backus stressed ‘religious worship.’ Backus referred directly to God’s ‘revealed will’ and to the ‘soul.’ Mason omitted any reference to them.
  • “The difference was obvious and fundamental. The Virginia separationists were interested in leaving the mind free to follow its own rational direction. The Massachusetts pietists believed that separation was necessary in order to leave the ‘rational soul’ free to find ‘true religion’ as expressed in the Bible, ‘the revealed will’ of God. Implicit in both statements was a belief in God, in natural law, in man’s ability to find them. But the deistic separationists of Virginia trusted entirely to man’s reason and free will. The pietists insisted that only through the supernatural grace of God would men find the Truth that is in Jesus Christ. Though both views were individualistic, the deist was anthropocentric, the pietist theocentric.”[7]

The humanistic view of Mason, Jefferson, and Madison that man, through his reason could successfully address all his problems, and the humanistic goal of the “happiness of man” were inherent in the Declaration of Independence and the Constitution, the two greatest governing documents of all time, although blended with Biblical principles. Neither the name of Jesus nor the goal of “the glory of God” was in the Declaration of Independence or the Constitution.[8]

The Warren Association, on September 13, 1780, published a remonstrance, authored by Mr. Backus, against Article Three of the proposed constitution. The remonstrance stated, among other things, that the provision therein requiring the majority of each parish “the exclusive right of covenanting for the rest with religious teachers,” thereby granting a power no man has a right to; and further stating that “the Legislature, by this Article, are empowered to compel both civil and religious societies to make what they shall judge to be suitable provision for religious teachers in all cases where such provision shall not be made voluntarily.”[9] However, support for ministry could only be through voluntary support, not coercion that denied freedom of conscience. Backus and other Baptists “did not object to the view that Massachusetts should remain a Christian commonwealth; piety, religion, and morality could only be maintained with the institution of the public worship of God and of public instructions in piety, religion, and morality” were “generally diffused throughout the community.[10]

  • “Jefferson, Mason, and Madison, designing the creation of a secular state, not only opposed all such practices but also objected to the use of chaplains in the Congress and armed forces, the authorization by the state of certain days of fasting, thanksgiving, and prayer; and the compulsory religious services in state universities. Jefferson explicitly stated that America was not and ought not to be a Christian country…. Backus never qualified his belief in a Christian commonwealth. He consistently argued for ‘a sweet harmony between’ Church and State. ‘It is readily granted,’ he wrote in 1784, ‘that piety, religion, and morality are essentially necessary for the good order of civil society.’”[11]

Endnotes

[1] Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), pp. 200-202, and fn. 1, p. 201.

[2] Ibid., pp. 203-204, 219-220, 225-229, 228-229.

[3] William G. McLoughlin, Isaac Backus and the American Piestic Tradition (Boston: Little, Brown and Company, 1967), p. 140. The entire tract is reproduced in Isaac Backus on Church, State, and Calvinism, Pamphlets, 1754-1789, Edited by William G. McLoughlin (Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1968), pp. 345-365.

[4] Ibid., 141.

[5] Ibid., p. 142.

[6] Ibid., pp. 142-144.

[7] Ibid., pp. 142-144.

[8] Again, the Constitution is the greatest governing document ever conceived by a nation, but the Biblical principle of “leaven”—bad doctrine always corrupts the good—has proven again, by the national experience, to be true. To understand and address a problem, one must be willing to face all the facts head on.

[9] Backus, A History of New England…, Volume 2, fn. 2, pp. 229-230.

[10] McLoughlin, Isaac Backus and the American Piestic Tradition, pp. 148-149.

[11] Ibid., pp. 149-150.

(1) Introduction: Distinct Differences between Church and State Render Them Mutually Exclusive


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Jerald Finney
Copyright © February
11, 2018


This series of lessons will examine Bible teaching which makes clear that state (civil government) and church are so distinct that they are mutually exclusive—that God ordained each for particular purposes and that He desires that both operate under Him but that neither work with, over, or under the other. The Old Testament develops the doctrine of civil government. There we learn that God ordained civil government to directly control evil since the restraint of conscience was insufficient to control the sinful man. God added the restraint of civil government as a further direct, worldly control over man. The Old Testament deals with Gentile civil government and the theocracy and Israel, their purposes and authorities under God, their history, and prophecies concerning, among other things, concerning their fate. The New Testament announces something new, the church, a spiritual organism made up of spiritual beings.

Combining church and state has had dire consequences, as history shows.[i] Catholic and Protestant theology historically justified (and continue to justify) the union of church and state by examining Scripture not literally, but allegorically or spiritually, when and where convenient to support a desired conclusion (such as union of church and state). Those religious organizations interpret Scripture in such a way as to apply the principles for Israel and Judaism to Gentile nations. Just as religion and state were combined in the Jewish theocracy, this spiritualized and allegorized theology, when implemented, unites church and state in Gentile nations.

JamesMadisonOnC&SMany of America’s founding fathers—most especially James Madison and Thomas Jefferson (see [ii], a copy of Virginia Bill for Religious Liberty drafted by Thomas Jefferson)—and other leaders understood that church and state should be separate. From a worldly common sense point of view Madison and Jefferson and others arrived at their understanding by studying the consequences of such unions both historically and also contemporaneously. From a Bible or spiritual perspective, Roger Williams, Isaac Backus, John Leland and other Baptists understood both the problems created by combining church and state and the true reasons for those problems. Backus wrote:

  • “Christians must be careful not to apply God’s principles for the Jewish religion and the nation Israel to church and state. The principles for the two are so distinct that they are mutually exclusive. The government of the Church of Christ is as distinct from all worldly governments, as heaven is from earth.”[iii]

Indeed, union of church and state is contrary to biblical principles; and, therefore, the consequences of church-state union have always been dire and will be so until the return of Christ and the establishment of the Kingdom.

God gave both church and state certain powers. God gave the state earthly and temporal power within jurisdictional boundaries which He set out. The power given a church was meant to provide a spiritual and eternal good.

The purpose of the Gentile civil government is fleshly or earthly.[iv] Gentile civil government, according to God, was ordained by God to deal with those temporal earthly matters assigned it by God. God gave man certain authority over man. He gave man the responsibility to rule over man under His rules. Gentile civil government has authority to punish those who commit certain crimes against their fellow man and to reward those who do good. The purpose of the Gentile civil government is to control evil men thereby maintaining some degree of peace in this present world. A civil government, as defined by God, is made up of men under God ruling over man in earthly matters.

Much of God’s spiritual word deals with actions of individuals, families, churches, and nations here upon the earth. Civil governments are not given jurisdiction over many areas of life which are governed by the Word of God. A civil government which ignores God and His Word is setting itself up for judgment.

God ordained a church under God, not a business under civil government, an entity that is to work hand in hand with or perhaps over the state to bring in the kingdom of God, or an entity that is to work under state rules. Admittedly, the ultimate God-given purpose of both a church and a civil government is to glorify God, each acting under God, but neither acting with or under the other. However, the underlying purposes of a church and the state are significantly different: the underlying purpose of a church is heavenly or spiritual; the underlying purpose of a civil government is earthly. God gave neither a church nor the state authority to rule over or with the other. Civil government does not have the authority or the ability (the knowledge, understanding and wisdom) to rule over God’s churches. For reasons already looked at in these lessons, a church is not to join with the civil government in any way.

Christians are told to obey civil government as regards certain earthly matters and civil government has authority over all citizens as to some temporal earthly matters. Individuals, families, and churches are not to be under the civil government with regard to spiritual matters, which include many activities and actions as shown in the Bible.


Endnotes

[i] See the historical section of this study of this abridged course for more on this. See, for a more advanced study, (1) Section 4 of God Betrayed/Separation of Church and State: The Biblical Principles and the American Application which is available free in both PDF and online form or may be ordered in softback and Kindle by going to “Order information for books by Jerald Finney which also has links to the free PDF and Online Form of the book; (2) the section on the history of the First Amendment; and/or (3) An Abridged History of the First Amendment.).

[ii] Virginia Bill for Religious Freedom drafted by Thomas Jefferson:Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.

[iii]  Isaac Backus, A History of New England With Particular Reference to the Denomination of Christians called Baptists, Volume 2 (Eugene, Oregon: Wipf & Stock Publishers, Previously published by Backus Historical Society, 1871), p. 561.

[iv] See Section I.A., The Biblical Doctrine of Government of this short course for more on government. For a more advanced analysis, “The biblical doctrine of government” for more on the jurisdiction and purposes of the various God-ordained governments including civil government.

Is Separation of Church and State Found in the Constitution?

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Jerald Finney © February, 2014

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Knowing the correct answer to the question, “Is ‘Separation of Church and State found in the Constitution” is vital in the success of the spiritual warfare of the believer in America. Does the First Amendment to the United States Constitution establish a wall which is to keep church out of state and state out of church; or does it set up a one way wall: that is, does it forbid state to stay out of church matters, but allow church to enter into state matters? If the latter, since “churches” vary in belief so dramatically, which church is to control in the affairs of state? Most Christians assert that the phrase “One nation under God” on our currency and in our Pledge of Allegiance make clear that the Constitution forbids separation of church and state. They state that the phrase “separation of church and state” is not found in the Constitution; that the Constitution through the First Amendment does not separate church and state. Are they correct in their understanding? [For a thorough analysis of the source of the misunderstandings-revisionist history-set alongside the easily verifiable history with complete citations, see information page on The Trail of Blood of the Martyrs of Jesus by clicking here.]

cropped-separationofchurchandstate_3.jpgI begin with an actual encounter with a “Christian” political activist over this matter of the meaning of separation of church and state. Then I:

1)     briefly explain my position with reference particularly to the beliefs of Thomas Jefferson and James Madison (with links to more extensive and in depth studies);

2)     briefly reveal those who are promoting the incorrect version of “separation of church and state” to conservative Americans (and more specifically to “Christians”) today and their motives;

3)     briefly answer the question of whether the Constitution or any other governing document requires the federal government to be guided by God and His principles and explain how a nation can proceed under God without combining church and state;

4)     briefly address biblical teaching on the downfall of a nation;

5)     conclude.

20In 2008, I started a seminar in El Paso, Texas with the diagram at left. A activist Christian lady immediately raised her hand and pointed out that the diagram separated church and state and that she did not agree with this. I had anticipated this question because I had struggled with the issue of separation of church and state for many years. Some years before this seminar I had begun to read in books and articles and to hear on Christian radio and from other Christians that “separation of church and state is not found in the Constitution.” I repeated that sound bite many times myself, but I was always perplexed as to where to go from the simple statement. I had read that the Supreme Court totally misinterpreted Jefferson’s Danbury Letter to mean that the First Amendment created a wall between church and state that was never intended. I had also read that the original intent of the religion clause of the First Amendment was to keep the state out of church affairs but not to keep the church out of state affairs; that the wall only functioned one way. Was this true? I found the answers to these questions after years of historical and legal studies.

This sign gets it wrong: we want Separation of Church and State not Separation of God and State
This sign gets it wrong: we want Separation of Church and State not Separation of God and State

I answered the lady’s concerns by stating that I believed that she and I were on the same page; that I believe that most of our founding fathers never intended to separate God and state, but that they did indeed intend to separate church and state. I mentioned that the writings of James Madison, Thomas Jefferson, and most of our Founding Fathers showed that they understood this. They knew that all church-state unions have always resulted in the corruption of both church and state as well as individual citizens, horrible persecutions (imprisonments, murder and torture) of those who did not bow down to the established “church” and its theology, and many other undesirable consequences. The history of the First Amendment proves this (See the “History of the First Amendment” which is available online in the PDF of God Betrayed Section IV and in Online form). Madison and Jefferson were eyewitnesses to the persecutions of dissenting Baptists in Virginia and they understood the history of the persecutions of all those who exercised their God-given freedom to choose a theology contrary to that of the church-state unions. They were aware that all church-state unions, beginning with the marriage of church and state in the early fourth century, continuing throughout the dark and middle ages, the reformation, and in the American colonies up until the time they lived resulted in horrible persecutions of those who would not bow down to the established beliefs.

4Jefferson’s writings make clear his position on separation of church and state. For example, in 1779 he wrote the Virginia Act for Religious Liberty which was passed in 1786. The act included three factors: church, state, and the individual. It protected the individual from loss at the hands of state incursion into his church affiliation, and implicitly banned church establishment. See En1 to read the entire act and another quote from Jefferson. Jefferson never swerved from his devotion to the complete independence of church and state (See also pp. 264-283 of God Betrayed to read more about Jefferson’s position. Click here to go directly to PDF of God Betrayed.).

Madison also fought for separation of church and state in Virginia. He wrote, in his famous “Memorial and Remonstrance:”

  • 18“… Because experience witnesses that ecclesiastical establishments, instead of maintaining the purity and efficacy of religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the clergy; ignorance and servility in the laity; in both, superstition, bigotry, and persecution. Inquire of the teachers of Christianity for the ages in which it appeared in its greatest luster; those of every sect point to the ages prior to its incorporation with civil policy. Propose a restoration of this primitive state, in which its teachers depended on the voluntary rewards of their flocks, many of them predict its downfall….
  • “Because the establishment in question is not necessary for the support of civil government…. If religion be not within the cognizance of civil government, how can its legal establishment be said to be necessary for civil government? What influences, in fact, have ecclesiastical establishments had on civil society? In some instances, they have been seen to erect a spiritual tyranny on the ruins of the civil authority; in more instances, have they been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the publick liberty, may have found on established clergy convenient auxiliaries. A just government instituted to secure and perpetuate it needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his religion, with the same equal hand which protects his person and property; by neither invading the equal hand which protects his person and property; by neither invading the equal rights of any sect, nor suffering any sect to invade those of another….”

See pages 278-279 of God Betrayed (Click here to go directly to online PDF of God Betrayed) for more extensive excerpts from “Memorial and Remonstrance.” Click here to go directly to the complete Memorial and Remonstrance online.

Thus, when the First Amendment was introduced and promoted by James Madison, the only question was the exact wording of the Amendment. The representatives at the Constitutional Convention understood that the purpose of the religion clause was (1) to place a two way wall between church and state (This purpose is stated in the establishment clause: “Congress shall make no law respecting an establishment of religion.”) and (2) to provide for freedom of conscious, also known as free will or soul liberty (This purpose is stated in the free exercise clause: “or prohibiting the free exercise thereof.”). These two purposes go hand in hand. The historical established churches, beginning with the spiritual harlot called the Catholic “church” and then her offspring -Protestant “churches” – violently persecuted (hung, burnt at the stake, drowned, buried alive, imprisoned, tortured with unspeakable horror) those who exercised their God-given free will in contradiction to the doctrines of the church-state establishment and were labeled “heretics” by the established church.

19At the seminar, I explained my position in more detail and showed that the same theology that justified union of church and state was initially developed and expanded upon from earlier sources by Augustine, practiced by the Catholic church, and later by Protestant churches (in modified form). Proponents of those same theologies remain at work to achieve the impossible goals of their adherents (peace and unity throughout the earth) in America today. In fact, many adherents of those theologies are very active in, and are leaders in, the contemporary American political warfare. Many believe that they will set up the kingdom of heaven on earth, the millennium, either through the efforts of the church or through a church-state combination and without the intervention our Lord Jesus Christ. Others believe that there is no millennium, and that a worldwide church-state combination will bring peace and unity to the earth. Others, such as myself, are totally convinced that the Bible teaches that Christ Himself will return at Armageddon and set up and reign over the millennium by power. See En2 for various explanations of millennialism.

1Along with the question of whether First Amendment separates church and state, another question that needs to be addressed is whether the Constitution or any other governing document requires the federal government to be guided by God and His principles? The Founding Fathers while implementing the biblical principle of separation of church and state in the First Amendment did not understand that a nation should, within her organic governing documents, recognize that the God of the Bible, the only God, should be honored and hailed as the ruler of nations and that His principles should be recognized and applied within the laws of the nation and in the interpretation of those laws.

A nation can proceed under God without combining church and state. How? The constitution of such a nation will:

1)     name the name of Jesus as the Supreme ruler;

2)     make clear that the nation will look to the biblical doctrines of government, church, and separation of church and state in ordering and carrying out its responsibilities under God;

3)     lay out its God-given jurisdiction as explained in the Bible;

The First Amendment to the U.S. Constitution
The First Amendment to the U.S. Constitution

4)     separate church and state. The First Amendment implements the biblical principle of separation of church and state.

5)     provide for religious liberty (also called soul liberty or freedom of conscience). The First Amendment does this.

6)     guarantee freedom of speech, press, assembly and the right to petition the government for a redress of grievances. The First Amendment does this.

See En3 for information on an historical example of governing documents which proved that this can be done.

1The Constitution allows, but does not require, Americans to recognize the God of the Universe, the God of creation, almighty God, and to operate according to His principles and to pray in the name of Jesus even at government functions. This is obvious from a study of history including the multitude of statements made by Presidents, senators, representatives, government officials at all levels of government; and from a reading and study of state constitutions, laws, and federal and state legal cases. History also shows that almost everyone in America at the time of the adoption of the Constitution reverenced the Bible and the God of the Bible and that prayers were made to Him at official government functions. Of course, the United States Supreme Court has removed the recognition of God (and especially the Lord Jesus Christ) from practically all civil government affairs. See for an explanation of how the Supreme Court has done this: The Supreme Court Reinterprets the First Amendment and Removes God or Section V of God Betrayed.

However, sad to say, neither the Constitution nor any other federal governing document names the name of Jesus and requires that the United States government be guided by God and His principles (being guided by God and His principles is something entirely different from establishing a church). If you disagree, show me one Constitutional provision or federal law which either requires recognition of God (and specifically the Lord Jesus Christ) and/or His principles as laid out in His Word. There is none. Unlearned Christians (me once being in their fold) argue that the implementation of certain biblical principles in the Constitution prove that the Constitution is a “Christian” document. However, they fail to point out the enlightenment principles which pollute the Constitution. I deal more in depth with these matters in God Betrayed. Unstudied Christians argue, as I once did, that the Declaration of Independence did recognize God and that Americans march behind the banner of the Declaration. However, the Declaration was written over a decade before the adoption of the Constitution and the First Amendment, and the Declaration is not law despite the rhetoric which says, “We proceed under the banner of the Declaration of Independence.” This author contends that even the Declaration is flawed when biblically analyzed. Even if the contention that it is not flawed were correct,  the Declaration is not controlling law and an examination of the Declaration and the Constitution leaves open the obvious contention that Americans had changed between the time of the writing of the Declaration and the adoption of the Constitution.

1The Bible teaches that a Gentile nation, as well as the nation Israel, that rejects the one true God, the God of the Bible, and His principles will become more and more morally bankrupt, will digress to political tyranny, and ultimately be judged by God. The United States is a moral cesspool and is well into the political tyranny stage. You may go to the following audio teaching for a thorough examination of Scripture on this matter: “The Biblical Doctrine of Government.” That teaching is also available in detailed form in Section I God Betrayed in PDF form or which can be ordered by going to Order Information for Books by Jerald Finney. A thorough analysis is impossible in a short article such as this, but here are a few verses from the Old Testament which substantiate this conclusion:

  • “The LORD is high above all nations, and his glory above the heavens” Psm. 133:4.
  • “Let all the earth fear the LORD: let all the inhabitants of the world stand in awe of him…. “Blessed is the nation whose God is the LORD; and the people whom he hath chosen for his own inheritance…. There is no king saved by the multitude of an host: a mighty man is not delivered by much strength.” (Psm. 33.8, 12, 16; see the whole chapter of Psm. 33). [Bold emphasis mine]
  • “Why do the heathen rage, and the people imagine a vain thing?  The kings of the earth set themselves, and the rulers take counsel together, against the LORD, and against his anointed, saying, Let us break their bands asunder and case their cords from us. He that sitteth in the heavens shall laugh: the LORD shall have them in derision. Then shall he speak unto them in his wrath, and vex them in his sore displeasure.…. Thou [Jesus] shalt break them with a rod of iron; thou shalt dash them in pieces like a potter’s vessel. Be wise now therefore, O ye kings: be instructed, ye judges of the earth. Serve the LORD with fear, and rejoice with trembling. Kiss the Son, lest he be angry, and ye perish from the way, when his wrath is kindled but a little. Blessed are all they that put their trust in him.” Psm. 2:1-5, 9-12 (The 2nd Psalm gives the order of the establishment of the kingdom.).

The Old Testament details God’s principles for nations, both Jew and Gentile, and lays out the complete history and fate of nations from beginning to end. God ordained civil government, and the fact that that God desires nations to submit to Him and His principles is undeniable. That no nation ever has or ever will do so before He returns and establishes His Kingdom on earth is clear from a literal interpretation of scripture.

SeparationOfChurchAndState14In spite of the flaws in the Constitution, America, to a great extent, originally honored God. Of course, the First Amendment was not a flaw; the religion clause was a statement of the biblical principle of separation of church and state. As time went by, the flaws in the document have made it easier for the natural progression of moral awfulness and political tyranny. I, like most politically active “Christians” but not according to knowledge, worked to “bring America back under God.” As a result of those efforts in the Republican Party (1982-beginning of the twenty-first century), I saw that America continued to grow worse in every way and at an accelerated pace in spite of our efforts. By 2002, I realized that America was a grossly immoral nation. America is now a tyrannical and morally awful nation much worse than it was in 2002. In 2005 God focused my efforts on His doctrine of the church, which is where they should have been in the first place. If Christians cannot get the doctrine of the church right in understanding and practice, how in the world do they think they can get civil government right? Even though many “believers” still seek to honor God in the political arena, they are not proceeding according to knowledge, wisdom, and understanding in either their government or their church efforts. God makes clear that when His people do not act according to knowledge (among other things), they will fall (See, e.g., 2 Pe. 1.2-10; Ho. 4).

For more in depth studies of the First Amendment, one can go to the following resources:

The History of the First Amendment
An Abridged History of the First Amendment

Endnotes

En1. Jefferson wrote: “Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth.” Jefferson understood that establishment of a church (a church working with, over, or under civil government) always brings the worst of persecution of those who do not bow down to the church-state or state-church union.”

Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.
Virginia Bill for Religious Liberty drafted by Thomas Jefferson in 1779 and enacted in 1786.

The Virginia Bill for Religious Liberty written by Jefferson and passed in 1786 stated:

“I. Well aware that Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the Holy Author of our religion, who being Lord of both body and mind, yet chose not to propagate it by coercions on either, as was in his Almighty power to do;

that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such, endeavoring to impose them on others hath established and maintained false religions over the greatest part of the world and through all time;

that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, … that our civil rights have no dependence on our religious opinions any more than [on] our opinions in physics or geometry;

that therefore the proscribing any citizen as unworthy the public confidence by laying upon him an incapacity of being called to offices of trust and emolument, unless he profess or renounce this or that religious opinion is depriving him injuriously of those privileges and advantages to which in common with his fellow citizens he has a natural right; …

that to suffer the civil magistrate to intrude his powers into the field of opinion and to restrain the profession or propagation of principles, on supposition of their ill tendency, is a dangerous fallacy, which at once destroys all religious liberty, because he being of course judge of that tendency, will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with, or differ from his own;

that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt [open, or public] acts against peace and good order;

and, finally, that truth is great and will prevail if left to herself, that she is proper and sufficient antagonist to error and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors [cease] to be dangerous when it is permitted freely to contradict them.

“II. Be it enacted by the General Assembly 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.

“III. And though we well know that this assembly, elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to her own, and that therefore to declare this act irrevocable would be of no effect in law, yet, as we are free to declare, and do declare,  that the rights hereby asserted are of the natural right of mankind, and that if any act shall hereafter be passed to repeal the present or to narrow its operation, such act will be an infringement of natural rights.”

En2. The word millennium means “1000 years” and comes from Re. 20. 4-6 where it says that certain people “came to life, and reigned with Christ a thousand years. There are three major views on the time and nature of the millennium.

Amillennialism takes the position that this is a period during which Satan’s influence has been greatly reduced so that the gospel can be preached throughout the world. Christ does not bodily reign during this period, and there is no future millennium yet to come. Amillennialists believe that the term “thousand years” is a figure of speech for a long period of time in which God’s will will be accomplished. Christ will return at the end of this period, believers and unbelievers will be resurrected, unbelievers will be eternally condemned and believers reunited with their spirits, judged, and will enjoy heaven forever.

According to postmillennialism, Christ will return after the millennium. The church and state, operating during the period in which we now live, will establish peace and righteousness and a millennial age will occur when this occurs. At the end of that thousand years, Christ will return to earth, believers and unbelievers will be raised, the final judgment will occur, a new heaven and a new earth will be established, and we will enter into the eternal state.

Premillennialism teaches that Christ  will return before the millennium, believers who have died will be raised from the dead, their bodies reunited with their spirits, will reign with Christ 1000 years.  During this 1000 years, Satan will be bound. At the end of that period, he will be loosed and will lead the unbelievers of the millennium in rebellion against Christ. Satan and his followers will be defeated, Christ will raise the dead and they will be judged. Those whose names are not found written in the book of life will be cast, as was Satan, into the lake of fire. At the final judgment, believers will enter into the eternal state.

There are two main premillennial positions. Classic premillennialism says Christ will return after the great tribulation, rapture believers, and that believes will reign with Christ on earth for 1000 years. Pretribulational premillennialism teaches that Christ will return part way to earth before the tribulation, call believers to Himself, , and return to heaven with those believers. This will be followed by a seven year period of great tribulation. At the end of that time, Christ will return, crush all the Gentile armies which have come against Israel, and set up His millennial reign. See, e.g., Wayne Gruden, Systematic Theology (Grand Rapids, Michigan: Zondervan, 2000), pp. 1109-1113.

En3. The first government in history with complete religious freedom was the government of the colony or Rhode Island (See the online version, “The Baptists in Rhode Island” or go to Section IV, Chapter 6 of God Betrayed available in PDF form – for ordering information go to the following link: Order information for Books by Jerald Finney.).

The first government in history that was to have complete freedom of conscience and religious liberty also declared that the government was to be under the Lord Jesus Christ. Signed on March 7, 1638, the Portsmouth Compact read:

“We whose names are underwritten do swear solemnly, in the presence of Jehovah, to incorporate ourselves into a body politic, and as he shall help us, will submit our persons, lives and estates, unto our Lord Jesus Christ, the King of kings, and Lord of lords, and to all those most perfect and absolute laws of his, given us in his holy word of truth, to be guided and judged thereby.” 38 [19 signatures followed: Thomas Savage, William Dyre, William Freeborne, Philip Sherman, John Walker, Richard Carder, William Baulstone, Edward Hutchinson, Sen., Henry Bull, Randal Holden, William Coddington, John Clarke, William Hutchinson, John Coggshall, William Aspinwall, Samuel Wilbore, John Porter, Edward Hutchinson, Jun., and John Sanford.].

Three passages were marked in support of the compact: Exodus 24.3, 4; II Chronicles

2.3; and II Kings 11.17.

In August of 1638, the people of Providence approved the first public document establishing government without interference in religious matters, the Providence Compact:

“We whose names are here underwritten being desirous to inhabit in the town of Providence, do promise to submit ourselves in active or passive obedience to all such orders or agreement as shall be made for public good to the body in an orderly way, by the major consent of the present inhabitants, masters of families, incorporated together into a township, and such others whom they shall admit into the same, only in civil things.” [Signed by Stukely Westcoat, William Arnold, Thomas James, Robert Cole, John Greene, John Throckmorton, William Harris, William Carpenter, Thomas Olney, Francis Weston, Richard Watearman, and Ezekiel Holliman.]

As James R. Beller proclaims, the document was “the first of a series of American political documents promulgating government by the consent of the governed and liberty of conscience” (James R. Beller, America in Crimson Red: The Baptist History of America (Arnold, Missouri: Prairie Fire Press, 2004), p. 13). Thus, liberty of conscience was the basis for legislation in Rhode Island, and its annals have remained to this day [when Underhill wrote this] unsullied by the blot of persecution. (Roger Williams and Edward Bean Underhill, The Bloudy Tenent of Persecution for Cause of Conscience Discussed and Mr. Cotton’s Letter Examined and Answered. (London: Printed for the Society, by J. Haddon, Castle Street, Finsbury, 1848 (Reprint)), p. xxviii).

Jury Nullification: Article, Brief, and Requested Jury Instruction

Jerald Finney
Copyright © July 21, 2013

Jury nullification has been an issue near and dear to my heart since the time in the 1980s when the Lord was dealing with me about going to law school. After attending the University of Texas School of Law and getting my license to practice law in 1993, I attended a Fully Informed Jury Association seminar and pursued the issue in selected cases. I drafted a brief to present to the court and a Requested Jury Instruction on the issue. The judges became very antagonistic when presented with the brief and the instruction. I will not bore you with the entire battle, but present this article to you so that, by reading the brief and requested instruction you may gain some understanding of the issue. Since I have not been allowed to argue nullification in any of my Texas cases where I attempted to do so, I have come up with a few tactics devised to try to get the jury to apply their right to nullify. Visit the Fully Informed Jury Association by clicking the blue colored link. Following the brief below is a copy of the requested instruction. Note: This website will not allow me to correctly format the headings to the brief and requested instruction (some of the entries in the headings are not centered).

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
§
     VS.                       §              OF              
§
                     [NAME OF DEFENDANT]            §                [Name of county] COUNTY, TEXAS                

BRIEF IN SUPPORT OF ALLOWING DEFENDANT, THROUGH HIS ATTORNEY, TO ARGUE JURY NULLIFICATION, AND ASKING THE COURT TO INCLUDE A JURY NULLIFICATION INSTRUCTION IN THE CHARGE

Defendant, by and through his attorney, respectfully shows the court as follows:

Jury nullification is a positive force in a civilized society. Only the jury is in a position to balance compassion against the letter of the law and assure justice in a proper case.  [T]he jury stands as a bulwark against laws which it deems unjust or excessively harsh.”  Mouton v. State, 923 S.W.2d 219, 222 (Tex. App.–Houston [14th Dist.] 1996, no pet. history).  It is undisputed that a jury has the power of nullification.” Id. at 221.  “[J]ury nullification is a recognized aspect of our jury system.” Id.   The court in United States v. Burkhart, 501 F2d 993, 997 (6th Cir. 1974) noted that the law of jury nullification “allows a defense attorney “some leeway in persuading the jury to acquit out of considerations of mercy or obedience to a higher law.” Mouton at 221-22.

The majority in Sparf et al. v. United States, 156 U.S. 51 (1895), which was cited in Mouton, “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. CLAY S. CONRAD, JURY NULLIFICATION 106 (Carolina Academic Press 1998).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id.  “The case did not hold that federal judges could not give jurors [a nullification] instruction, or that they must disingenuously inform jurors that they were bound to follow the courts instructions.” Id. (emphasis mine).  “The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law.” Id. “The case did not hold that federal judges could not give jurors such [a jury nullification] instruction.” Id. at 108.

The criminal justice system which allows the defense attorney to argue jury nullification and the judge to tell the jury that it has the right to nullify the law is a better system. And there are good reasons for a jury to be told that they have the right to nullify the law.  Jurors may not be aware of their power to render a verdict according to conscience, or that they are immune from prosecution if they do so–particularly if they are under the impression that their oath binds them to enforcing the law as given in the court’s instructions. JURY NULLIFICATION at 126.  “Counting on jurors to come to  Court aware of their hidden powers runs counter to what little empirical evidence exists.” Id. at 133.  “Furthermore, psychological studies indicate that a juror may be willing to convict and impose a cruel sentence if the legal system supports and applauds his actions, because judicial instructions have deprived him of any personal moral responsibility for his verdict.” Id.

Judge Jack B. Weinstein believes that “[n]ullification is but one legitimate result in an appropriate constitutional process safeguarded by judges and the judicial system. When juries refuse to convict on the basis of what they think are unjust laws, they are performing their duty as jurors.” Id. at 145-146 citing HON. Jack B. Weinstein, Considering Jury “Nullification”: When May and Should a Jury Reject the Law to do Justice?, 30 AM. CRIM. L. REV. 239, 240 (1993).  He wrote:

“When jurors return with a “nullification” verdict, then, they have not in reality “nullified” anything: they have done their job. . . Juries are charged not with the task of blindly and mechanically applying the law, but of doing justice in light of the law, the evidence presented at trial, and their own knowledge of society and the world.  To decide some outcomes are just and some are not is not possible without drawing upon personal views.” Id. at

District Court Judge Thomas Wiseman, in the Middle District of Tennessee, wrote:

 “Argument against allowing the jury to hear information that might lead to nullification evinces a fear that the jury might actually serve its primary purpose, that is, it evinces a fear that the community might in fact think a law unjust.  The government, whose duty it is to seek justice and not merely conviction, should not shy away from having a jury know the full facts and law of a case.  Argument equating jury nullification with anarchy misses the point that in our criminal justice system the law as stated by the judge is secondary to the justice as meted out by a jury of the defendant’s peers.  We have established the jury as the final arbiter of truth and justice in our criminal justice system…” United States v. Datcher, 830 F.Supp. 411, 412 (M.D. Tenn. 1993), discussed in Kristen K. Sauer, Informed Conviction: Instructing the Jury About Mandatory Sentencing Consequences, 95 COL. L.REV. (1995) and cited in JURY NULLICICATION at 146-147.

 A Brief History of “Jury Nullification”

History demonstrates that the advent and practice of jury nullification has been a positive and compassionate force in the development and operation of our criminal justice system. “Although the use of the jury in criminal trials in England was encouraged by the Assize of Clarendon in 1166, it was not until 1215 that juries were routinely used in the trial of criminal cases.”  JURY NULLIFICATION at 17 citing SIR PATRICK DEVLIN, TRIAL BY JURY, 9 (3d ed. 1966)(Reprinted 1988).  This was the result two events: the Pope’s condemnation of the entire system of trials by ordeal and his prohibition of clerics from participating in them and the Magna Charta.  JURY NULLIFICATION at 17.

“Although originally juries which returned ‘incorrect verdicts’ were treated very harshly, the power of juries to correct oppressive or unjust laws was beginning to be recognized by the mid-seventeenth century.  Id. at 23-28.  Bushell’s Case in 1670 ushered in what has been called the heroic age of the English jury.”  Id. at 24-28.

“In Bushell’s Case, jurors acquitted the Quakers William Penn and William Mead of the capital offenses of unlawful and tumultuous assembly, disturbance of the peace and riot.  They were charged because they preached to their congregation in the street after the police locked them out of their church because the Quaker religion was illegal.  After the evidence, the court told the jurors to convict.  They did not.  They were threatened with starvation, they were held three days without food, drink, or toilet facilities, but acquitted anyway.  They were all fined a considerable sum.  Eight paid the fine, but four were imprisoned for refusing to pay.  One of those made out what was called a writ of Habeas Corpus ad Subjiciendum, which was decided 2 1/2 months later in their favor.  The opinion in  Bushell’s Case held no more than that a juror could never be punished for his verdict unless he delivered it in bad faith.” Id.

As a result, courts began to use “special verdicts.”  Id. at 28.  Nonetheless, juries insisted on returning general verdicts, especially in seditious libel cases where the law said that the fact of publication was the only element of a libel prosecution that concerned the jury.  Id. at 29.  Many pamphlets were published and distributed informing jurors of their right to judge the law. Id.  More conventional academic and legal treatise writers also began to accept and promulgate the doctrine of jury independence.  Id. at 30.

Alexander Hamilton argued “jury nullification” in Rex v. Zenger, How. St. Tr. 17:675 (1731). Id. at 32-35.  John Peter Zenger was accused of seditious libel in New York. Id. The jury acquitted Zinger after only brief deliberations. Id. at 36.  The reverberations of Hamilton’s arguments continued both in England and America for many years and prosecutions for seditious libel began to falter with increasing consistency. Id. at 36-38.  As a result, the English Parliament in 1791 passed Fox’s Libel Act which re-established the right of juries to render a general verdict in libel cases as in all other criminal cases. Id. at 41-43.  “Juries, by exercising the power implicit in the delivery of the general verdict, had demanded and received official recognition of their right to judge whether an alleged libel was in fact false, malicious and intentional.” Id. at 44.

“The founders of this country were in agreement as to the value of the trial by jury as an essential means of preventing oppression by the government. Their primary concern was more with the radical true law-finding power of the jury than with the jury’s power of amelioration.” Id. at 47-48.  Many prominent founders such as Theophilus Parsons, a member of the Massachusetts Constitutional Convention and Chief Justice of the Massachusetts Supreme Court, John Adams, Thomas Jefferson, and Alexander Hamilton argued for the rights of jurors to judge the law.  “The right of early American jurors to deliver a general verdict according to conscience was not a controversial issue during the early years of this country.” Id. at 52. Chief Justice John Jay, in a rare jury trial in front of the Supreme Court, instructed the jurors of their right to judge the law in the instructions he gave to the jury in Georgia v. Brailsford, 3 U.S. (3 Dall.) 1 (1794).  Id. at 52-53.  Other cases from the same period expressed the same conception of the role of the jury. Id. at 53.

That federal law continued to recognize the right of jury nullification is shown in Justice Van Ness’ instruction to the jury in United States v. Poyllon, 27 F.Cas. 608, 611 (D.C.D.N.Y. 1812), and by Chief Justice John Marshall’s instructions to the jury in United States v. Hastings, 26 F.Cas. 440, 442 (C.C.D.Vir. 1812): “That the jury in a capital case were judges, as well of the law as the fact, and were bound to acquit where either was doubtful.” Id. at 60-61.  For almost five decades following the adoption of the Bill of Rights, the right of jurors to judge both law and fact was uncontroversially accepted.  Id. at 60-63.

By the mid-nineteenth century, for several reasons, the prevalence of jury instructions charging jurors with the responsibility for reviewing both law and fact began to give way to increasingly constrained instructions.  Id. at 65.  For one thing, reducing the power of the jury to determine the law gave trial judges greater control in determining case outcome. Id.  Another factor was reduced perception of a need for jury independence. Id. Americans no longer had unjust laws foisted on them by a foreign power across the sea. Id.  Furthermore, most Americans were aware of their power to judge the law. Id.  Jury independence was rarely used “and most Americans thought it should only be used to curtail gross excrescences of the criminal sanction.” Id. at 66-67.

“The laws establishing and protecting the institution of slavery and punishing those who aided fugitive slaves struck many Americans–including substantial numbers of Southerners–as cruel, unjust and fundamentally un-American.” Id. at 75.  Juries in Massachusetts began ending slavery by finding in favor of slaves who sued for freedom. Id. at 75. In one case, the fate of Quock Walker, a “runaway slave,” was debated in a series of civil jury trials, culminating in a decision that “The said Quock Walker is a free man and not the property slave of the defendant,” and Mr. Walker was awarded damages for injuries suffered when his former master, Nathaniel Jennison caught and beat him. Id. at 75-76.  Then, Jennison was found guilty of assaulting Mr. Walker and fined forty shillings in the case of Commonwealth v. JennisonId. at 76.

Chief Justice William Cushing, in his charge to the jury, instructed them that:

“As to the doctrine of slavery and the right of Christians to hold Africans in perpetual servitude, and sell and treat them as we do our horses and cattle, that (it is true) has been heretofore countenanced by the Province Laws formerly, but nowhere is it expressly enacted or established…  But whatever sentiments have formerly prevailed in this particular or slid in upon us by the example of others, a different idea had taken place with the people of America, more favorable to the natural rights of mankind, and to that natural innate desire of Liberty, with which Heaven (without regard to color, complexion, or shape of noses–features) has inspired all the human race. And upon this ground our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal–and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property–and in short is totally repugnant to the idea of being born slaves.  This being the case, I think the idea of slavery is inconsistent with our conduct and Constitution; and there can be no such thing as perpetual servitude of a rational creature, unless his liberty is forfeited by some criminal conduct or given up by personal consent or contract…” Id. at 76 citing ALBERT P. BLAUSTEIN & ROBERT L. ZANGRANDO, CIVIL RIGHTS AND AFRICAN AMERICANS, 45-46 (1991).  “The jury of white male landowners freely chose to convict, heralding the end of slavery in Massachusetts and delivering a fatal blow to the institution throughout the Northeast.” Id. at 77.

Although slavery continued in the South, The Unconstitutionality of Slavery, by Lysander Spooner, which argued the illegality and unconstitutionality of slavery, was widely disseminated both in print and by orators such as Frederick Douglass and lead to one of the most thorough jury revolts in history. Id. at 77-78.  The Fugitive Slave Act which was passed in 1850, one of the most infamous pieces of legislation ever passed by any United States legislature provided that a person accused of being a fugitive slave could, without due process of law, be brought before a quasi-judicial commissioner for a summary hearing without a jury. Id. at 79. The commissioner, if convinced of the claimant’s veracity, could return the slave to bondage. Id. The commissioner was paid ten dollars if the slave were returned, but only five dollars if the claim was rejected. Id.  The Fugitive Slave Act also provided imprisonment of up to six months and a fine of up to one thousand dollars for anyone convicted of interfering with the recovery of fugitive slaves, or who rescued or harbored fugitives. Id.  Any person with black skin could be seized as an escaped slave wholly on ex  parte testimony. Id.  The Act deprived those arrested under its auspices of the writ of Habeas Corpus. Id.

It is clear that, for whatever reason, jurors frequently refused to convict those who harbored or assisted fugitive slaves. Id. at 80.  In one case, twenty-four men helped a captured slave named Fredrick Jenkins (alias Shadrack) escape. Id. at 81. Prosecution of the participants in Shadrack’s rescue was dropped by the government after two acquittals and several hung juries. Id.  The second defendant, a black lawyer named Robert Morris, a descendant of slaves, was acquitted by a jury of twelve white men of assisting in the escape of a fugitive slave. Id. at 81-82.  According to one authority, “[h]is lawyer told the jury that they should judge the law as well as the facts, and that if any of them conscientiously believed that the Fugitive Slave Law was unconstitutional, they should disregard any instructions by the judge to the contrary.” Id. at 81.

Other evidence that jurors were freely granted the power to deliver an independent verdict during the nineteenth century include jury independence provisions inserted into several state constitutions and state statutes granting jurors the power to judge the law. Id. at 88.  Some of those survive until this day in one form or another, but in some states, courts restricted the role of jurors during the latter half of the nineteenth century, “often striking down or limiting earlier precedents and statutes.” Id. at 88-92.

In a sense, the United States Supreme Court rejected jury independence in Sparf et al. v. United States, 156 U.S. 51 (1895).  Id. at 99-108.  But the majority in Sparf “suggested no way of eliminating the power of juries, sua sponte, to nullify the law. Id. The case determined only that federal judges were not obligated to inform jurors of their power to bring in a verdict based on the juror’s own judgment of the law. Id. The case did not hold that federal judges could not give jurors such an instruction.” Id. at 108.

In spite of Sparf, during the closing decade of the nineteenth century, the prosecution found it increasingly difficult to prevail in labor cases. Id. at 106-108.

“Jury independence is a snapshot in the law, appropriately flaring up when the criminal law exceeds the limits of social consensus, dying away when the law has been reformed, only to flare up anew when the legislative ambition [and now judicial ambition] again overtakes its legitimate bounds.”  Id. at 108.  It is not debated that the laws which prohibited alcohol manufacture, sale, and consumption were routinely rejected by independent American juries. Id. at 108-115.  In some areas of the country as many as sixty percent of alcohol-related prosecutions ended in acquittals. Id. at 109.  “Prohibition has been described as a ‘crime category in which the jury was totally at war with the law.’” Id.  “Jury independence . . . was still a strong aspect of American culture and many jurors were aware of their powers and willing to exercise them when appropriate.” Id.  “Where juries did convict, they often delivered ‘compromise verdicts’ which resulted in reduced sentences for the accused.’” Id. at 111.

“During prohibition, John Henry Wigmore defended trial by jury on several grounds: that it prevented unpopular distrust of official justice, provided necessary flexibility in legal rules, educated the citizens of the country about the administration of the laws and improved verdicts by requiring that, even after the decision in Sparf et al., juries were deciding cases based both on judicial instructions and their own views of equity:

“Law and justice are from time to time in conflict.  That is because law is a general rule (even the stated exceptions to the rules are general exceptions); while justice is the fairness of this precise case under all its circumstances.  And as a rule of law only takes account of broadly typical conditions, and is aimed on average results, law and justice every so often do not coincide. * * *

“The jury, in the privacy of its retirement, adjusts the general rule of law to the  justice of the particular case.  Thus the odium of inflexible rules of law is avoided, and popular satisfaction is preserved.

“That is what the jury trial does.  It supplies that flexibility of legal rules which is essential to justice and popular contentment.”

Id. at 112 citing John H. Wigmore, A Program for the Trial of Jury Trial, 12 J. AM. JUD. SOC. 166, 169-171 (1929).

Clarence Darrow, America’s most famous criminal defense lawyer of the period and a great opponent of Prohibition and supporter of jury nullification, stated, “Since men began making laws, the favorite form of repeal is by non-observance.  It was in this way that Christianity conquered the Roman Empire.  If Christians had obeyed the laws of Rome their religion would have died at its birth.” Id. at 114 citing DARROW, THE STORY OF MY LIFE, 293, 294 (1931).

“By the early twentieth century, it seemed that jury independence had become a doctrine of the past, anachronistically surviving in a few isolated jurisdictions and watered down and disparaged where it remained.  Rejected by the federal courts and most state courts, it served as interesting fodder for an occasional law review article.  Jury independence was not advocated openly, nor had it been a particularly lively topic of discussion since the demise of slavery and the repeal of the Fugitive Slave Act in 1850.  The political nature of jury independence allowed the doctrine largely to hibernate until the 1960s when the Vietnam war cases brought it to the forefront as a tool of social protest.

“However, as the last quarter of the twentieth century approached, the rapidly increasing number of academic law journals required an increasing number of articles, in order to fill the equally increasing number of pages.  Articles on jury independence found their way onto many of those pages.  For the first time in 88 years of history, the doctrine of jury independence had established a life of its own, apart from any particular issue or policy.” Id. at 140-141.

Juries are still nullifying the law. Id. at 143-153 (examples given: e.g., defendant found not guilty of two counts of marijuana cultivation where he admitted to growing more than 40 plants in his home and his sole defense was that smoking and eating marijuana alleviated the nausea and weight loss associated with AIDS; a Michigan jury refused to punish Dr. Kevorkian for his role in helping Thomas Hyde commit suicide; a Colorado jury refused to convict a man for assisting his mother who requested his help because her suffering got to be too much in committing suicide; cases where juries refuse to convict women who have killed their batterers, not in self-defense, after years of abuse).  Others categories of cases in which independent juries are likely to nullify the law include abortion protest cases, gun owner cases, and, should Roe v. Wade, 410 U.S. 113 (1973) ever be overturned, it is unlikely that independent juries would enforce laws criminalizing abortion.  Id. at 152.  In fact, against all reason, it seems to the attorney for defendant that the average “Pro-Choice” person is far more likely to nullify the law in the appropriate case than the average so-called “Pro-Lifer” many of whom have bought the liberal lie that “I am Pro-Life and would never have an abortion, but I don’t think the government should legislate morals.  It ought to be up to the pregnant woman.”  That reasoning would require the abolition of all our criminal laws.  I represented an abortion clinic sidewalk counselor in Austin.  At trial, the jury would have nullified the law and convicted had not the judge granted defendant’s motion for a directed verdict.  After talking with the jurors after trial, it was apparent that the jurors had lied during voir dire so that they could get onto the jury.  It was also apparent that they were angry because the judge followed the law and granted defendant’s motion for directed verdict after the close of the state’s evidence.

Conclusion

At times, jury nullification is necessary to assure that justice is done.  A judge can allow the defense lawyer to argue jury nullification.  A judge can, but is not required to instruct the jury of its power of nullification.  To deny the jury the right to be fully informed – by either the defense lawyer or the judge or both – of its power of nullification in an attempt to prevent it from exercising the full extent of its proper function will likely result in an injustice in a case where the letter of the law and justice conflict.  Sometimes, as history demonstrates, law and justice do not coincide.

Respectfully submitted,

____________________________________

Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466
ATTORNEY FOR DEFENDANT

VERIFICATION

STATE OF TEXAS                      §

§

COUNTY OF TRAVIS                 §

BEFORE ME, the undersigned authority, on this day personally appeared Jerald Finney who, upon being duly sworn, upon oath did acknowledge and state to me as follows:

“My name is Jerald Finney.  I have read the above and foregoing statements and they are to my personal knowledge, true and correct.”

SIGNED this ____ day of _______________, 200___.

______________________________

Jerald Finney

SUBSCRIBED AND SWORN before me on this ______ day of _______________, 201__.

______________________________

Notary Public, State of Texas

______________________________

Printed Name of Notary

My Commission Expires:_________

No. ______________

 STATE OF TEXAS               §              IN [Name of Court]
§
VS.                §                OF
§
[NAME OF DEFENDANT]          §               [Name of county] COUNTY, TEXAS

DEFENDANT’S REQUESTED INSTRUCTION NO. ___

TO THE HONORABLE JUDGE OF SAID COURT:

                                             , defendant in this action, before the Court has presented the charge to the jury and in the time and manner required by law, requests that the Court include in the charge to be submitted to the jury the following instruction.

INSTRUCTION NO. ___:

It is presumed that juries are the best judges of fact.  Accordingly, you are the sole judges of the true facts in this case.

I think it requires no explanation, however, that judges are presumed to be the best judges of the law.  Accordingly, you must accept my instructions as being correct statements of the legal principles that generally apply in a case of the type you have heard.

The order in which the instructions are given is no indication of their relative importance.  You should not single out certain instructions and disregard others but should construe each one in the light of and in harmony with the others.

These principles are intended to help you in reaching a fair result in this case.  You should give them due respect.  Moreover, justice will ordinarily be done by applying them as a whole to the facts which you find have been proven.  You should do just that if, by doing so, you can do justice in this case.

Even so, it is difficult to draft legal statements that are so exact that they are right for all conceivable circumstances.  Accordingly, you are entitled to act upon your conscientious feeling about what is a fair result in this case, and acquit the defendant if you believe that justice requires such a result.

Exercise your judgment without passion or prejudice, but with honesty and understanding.  Give respectful regard to my statements of the law for what help they may be in arriving at conscientious determination of justice in this case.  That is your highest duty as a public body and as officers of this court.

Respectfully submitted,

____________________________________

Jerald C. Finney
P.O. Box 1346
Austin TX  78767
Tel. & FAX: (512)385-0761
State Bar No.:  00787466
ATTORNEY FOR DEFENDANT

This requested instruction, having been duly and timely requested, is hereby ________________ and exception allowed.  [State modification, if any]:

SIGNED this ________ day of _____________________________, 201__.

___________________________________
JUDGE PRESIDING

The 19th Century Supreme Court Interpretation of “Separation of Church and State”

Jerald Finney
Copyright © January 14, 2012


Click here to go to links to all Chapters in Section V.


Note. This is a modified edition of Section V, Chapter 2 of God Betrayed. The author makes some controversial statements regarding not only civil court jurisprudence but also some biblical principles. An honest study of the Word of God brought him to his conclusions. He invites anyone to show him where he is wrong as to his biblical pronouncements. If anyone can do so, then he will publicly repent and recant. Likewise, if anyone finds that their presuppositions were wrong, he invites them to repent and recant. How can anyone ever hope to get his individual, family, church, and state government correct without being willing to embrace and promote new light when it comes his way?


The 19th Century Supreme Court Interpretation of “Separation of Church and State”

The religion clause of the First Amendment to the United States Constitution states, “Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof.” What did the authors of this clause of the First Amendment to the Constitution of the United States mean? What was meant by “religion” and “the free exercise of religion” or “freedom of religion?” Was the First Amendment intended to create “separation of church and state?” If so, what was meant by “separation of church and state?” Many Christians have addressed this issue, and most of their debating points have been off base, as have the arguments of secularists. This author traced the history of the First Amendment in Section IV of God Betrayed which is reproduced on this website. Historically, the purpose of the First Amendment was to separate church and state (keep the federal government out of church and churches out of civil government—i.e., the meaning was that the church was not to work under, hand and hand with, or over the federal government.).

The Supreme Court, in the nineteenth century, started out reasonably – not historically or biblically – well on this issue; but in the mid-twentieth century, although not yet removing the original meaning of the First Amendment separation of church and state, the Court moved into another area adding a completely perverted twist to the meaning of “separation of church and state,” thereby turning the First Amendment religious clause into a tool that would be used to remove God from any state activity.

The nineteenth Century Court could have done much better had it gone directly to a complete and non-revised history of relevant facts and to the Bible and not to the views of the “Christian” world for its guidelines. In the nineteenth century, the Supreme Court defined “religion,” “the free exercise of religion,” “freedom of religion,” and “separation of church and state” much differently than does our modern Supreme Court. In 1879, the Court wrote in its opinion in Reynolds v. United States:

“The word ‘religion’ is not defined in the constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the [First Amendment to the United States Constitution] was adopted. The precise point of inquiry is, what is the religious freedom which has been guaranteed” (Reynolds v. United States, 98 U.S. 145, 162 (1879))? (Bracketed material added by author.].

According to the Court, “religion” meant “Christianity” and “freedom of religion” meant freedom to practice the one true religion, “Christianity,” or any imposter of the true religion as long as such practice did not violate or conflict with the moral or social laws of Christianity.

The Reynolds Court referred, as did the mid-twentieth century Court (See Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, 91 L. Ed. 711, 1947 U.S. LEXIS 2959; 168 A.L.R. 1392 (1947)), to an obscure letter written by Thomas Jefferson. Regarding the First Amendment religion clause:

“Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: ‘Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions,—I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.’ Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order” (Reynolds, 98 U.S. at 164).

According to Jefferson, the laws of government could reach actions, but not opinions. What actions could government reach? He desired that those laws should not reach, but rather should restore, the natural rights of man. And “[man] has no natural right in opposition to his social duties” (Ibid.)?

What is the origin of man’s “natural rights” and his “social duties” which cannot oppose one another? Jefferson signed the Declaration of Independence which stated, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness…. We, therefore, [appeal] to the Supreme Judge of the world for the rectitude of our intentions” (The Declaration of Independence para. 2, 32 (U.S. 1776)).  The Declaration referred to “the separate but equal station to which the Laws of Nature and of Nature’s God entitles them” (Ibid., para. 1).  Thus, according to Jefferson and the other signers of the Declaration of Independence, man’s “natural rights” come from God.

What defined man’s social duties? What was to tell us the meaning of good order? What actions violated social duties and subverted good order? From Reynolds one can certainly conclude that the Mormon religion, the ways of the Asiatic people, and the ways of the African people were not to be the guide America (98 U.S. at 164). Instead, social duties and good order were to be defined by looking at the laws of the northern and western nations of Europe, especially England (Ibid., pp. 164-65). In England the ecclesiastical (church) courts punished polygamy, and presided over testamentary causes and the settlement of the estates of deceased persons (Ibid., p. 165). Marriage was declared to be a “sacred obligation,” and a “civil contract … regulated by law” (Ibid. This last statement of the Court concerning marriage was flawed. Contract law is based upon enlightenment, not biblical, principles. Marriage as defined in the Bible is a covenant between God, man, and woman. Marriage, according to Enlightenment thought, is a contract between two equal people and the state; the state, not God, is alleged to be the controlling party to marriage. The contract clause—Article 1, Section 10 of the United States Constitution—was ultimately used to reconstruct marital law, family law, criminal law, and other areas of the law including relationship of church and state according to enlightenment principles of contract law. See Section VI of God Betrayed which is published in this blog in edited form.).

What did Jefferson mean by “separation between church and state?” The Reynolds Court stated:

“’[T]o suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty. [I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what belongs to the church and what to the state” (Ibid., p. 163). [Emphasis mine.]

The Court did not correctly articulate what belongs to a church and what to the state. Sections I through IV of God Betrayed explain the jurisdictions of church and state according to the Word of God. Nonetheless, the court is correct in asserting that church and state have different jurisdictions.

The Court went on to further clarify the intended meaning of the phrase by explaining that “the scope and effect of the [First Amendment religion clause] was to deprive Congress of all legislative power over mere opinion, while leaving Congress free to reach actions which were in violation of social duties or subversive of good order” (Ibid., p. 164). The Court referred to Thomas Jefferson’s letter to the Danbury Baptist Association as quoted above. They could have reinforced this with the Virginia Act for Religious Liberty, drafted by Jefferson and made law in Virginia in 1786 (quoted on pages 281-282 of God Betrayed which is reproduced on this website in the chapter entitled “To Virginia”), with James Madison’s famous “Memorial and Remonstrance” (quoted on pages 278-279 of God Betrayed and reproduced on this website in the chapter entitled “To Virginia”), and with other historical facts.

Reynolds held that laws criminalizing polygamy did not violate the First Amendment even though the offender practiced polygamy because of his religious beliefs (Ibid.).  The Court said that the act of polygamy violated social duties and subverted good order (Ibid., pp. 164-167). True enough, but still not proper authority to criminalize polygamy, since the Bible made clear that God intends marriage to be under Him only, not under the state.

Mr. Justice Field, who was appointed to the Supreme Court by President Abraham Lincoln in 1863, more clearly explained why, according to the Court, bigamy and polygamy are actions which violate social duties and subvert good order and why laws against bigamy and polygamy are constitutional:

“Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases.
     “The term ‘religion’ has reference to one’s views of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. The first amendment to the Constitution, in declaring that Congress shall make no law respecting the establishment of religion, or forbidding the free exercise thereof, was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of the amendment in question (The Court failed to point out that the spiritual atrocities were continued in the colonies, in the conflict between the established churches and the dissenters.)It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order and morals of society. With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by  him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with. However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation. There have been sects which denied as a part of their religious tenets that there should be any marriage tie, and advocated promiscuous intercourse of the sexes as prompted by the passions of its members. And history discloses the fact that the necessity of human sacrifices, on special occasions, has been a tenet of many sects. Should a sect of either of these kinds ever find its way into this country, swift punishment would follow the carrying into effect of its doctrines, and no heed would be given to the pretense that, as religious beliefs, their supporters could be protected in their exercise by the Constitution of the United States. Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance…” (Davis v. Beason, 133 U.S. 333, 341-43, 345 (1890). In Davis, a man was convicted of a crime under Idaho law and filed a writ of habeas corpus claiming that the law under which he was convicted violated the First Amendment “free exercise of religion” clause. The law prohibited one who belonged to a church organization that holds or teaches bigamy and polygamy as a doctrine of the church from voting or holding office.). [Emphasis mine].
“Marriage, while from its very nature a sacred obligation, is, nevertheless, in most civilized nations a civil contract [The Court was wrong in pronouncing that marriage is a civil contract. Section VI of God Betrayed deals with the fallacy that marriage is a civil contract. Although polygamy is contrary to the will of God, where does the Bible teach that polygamy should be subject to criminal sanctions?], and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties, with which government is necessarily required to deal” (Ibid., pp. 343-344. Although one can argue as to whether the Bible prescribes a criminal penalty for bigamy, it is certain that God’s Word commands one husband with only one wife.).
“Whilst legislation for the establishment of religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion” (Ibid., p. 345).
     “Certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement” (Ibid., citing Murphy v. Ramsey, 114 U.S. 15, 45. The court is right that marriage and family are important to the well-being of a nation. But, as has been pointed out, the God-given goal of a nation should be the glory of God. If the glory of God is the goal, correct marital and familial principles will follow. Nowhere in Scripture can one infer that the civil government has the authority to legislate and enforce laws dealing with marriage and familial relationships. A civil government does have the God-given authority to criminalize sexual sins which include sodomy, fornication, and adultery.).

To summarize what the Court said, the First Amendment religion clause gave us freedom of religion, freedom of conscience (Ibid., p. 342).  It separated church and state. However, when an act violated the criminal laws of the nation, the perpetrator was to be punished even if the act were in conformity with the beliefs of his sect (Ibid., pp. 341-347).  The Court declared that the criminal laws of this nation were founded on alleged “Christian” (not biblical) principles. In other words, the Court incorrectly stated that the United States looked to God for its principles (Ibid.). The Court made this clear although it did not use these exact words. For example, on page 343 of the opinion the Court said, “Probably never before in the history of this country has it been seriously contended that the whole punitive power of the government for acts, recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation, must be suspended in order that the tenets of a religious sect encouraging crime may be carried out without hindrance.” Notice that the Court went to the views of the “Christian” world, not to the Word of God to determine the issues addressed. In other words, the Court got its principles from rules made by church-state combinations, not from the Bible. The sect which the Court referred to was the Mormon “church” and the crime designated as a practice of a sect or “religion” was polygamy and bigamy (Ibid., pp. 334-335).  Thus, according to the Court, the First Amendment gave the Mormon “church” the right to exist in America (Ibid., p. 342);  the First Amendment gave those who belonged to the Mormon “church” the right to practice what was designated by their “church” as “religion” (Ibid.); but the First Amendment did not give those who belonged to the Mormon “church” the right to put into practice the duties imposed by their sect when those duties were recognized by the general consent of the Christian world as proper matters for prohibitory legislation (Ibid., p. 343).

The Court spoke ofMaker,” of “acts recognized by the general consent of the Christian world in modern times as proper matters for prohibitory legislation,” and of “morals of a [nation’s people]” (Ibid. pp. 342-343). As correctly declared by the Court, the United States of America got its guidelines for what was criminal and for what is moral and what is immoral from looking at the “Christian world,” not by looking at the Bible. Thus, although the jurisprudence purported to be Christian, it was polluted to a degree (Ibid. pp. 341-345), since the rules the Court looked at were made by “churches” working with, over, or under the state. As is stated in these teachings, when the holy is combined with the unholy, the unholy always corrupts the holy (the holy never purifies the unholy). Bigamy was practiced by men in Israel as recorded in the Old Testament. However, no law under God in the theocracy of Israel was ever passed to criminalize bigamy. Of course the Bible teaches one man and one wife under God; but nowhere (Old and New Testament) does the Bible teach that either bigamy or polygamy, although sin in God’s eyes, should be criminalized. All crimes are also sins, but not all sins are to be criminalized according to the Word of God.

In Rector, Etc., of Holy Trinity Church: v. United States in 1892, the court stated a somewhat flawed history of Christianity within the United States:

“[The … charters of the original colonies, the Mayflower Compact, governing documents of early colonies, the Declaration of Independence, the constitutions of the various states, and the Constitution of the United States] are not individual sayings, declarations of private persons. They are organic utterances. They speak the voice of the entire people. [They declare that 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 Updegraph v. Com. 11 Serg & R 394, 400, ‘It was decided that, Christianity, general Christianity, is, and always has been, a part of the common law of Pennsylvania; … not Christianity with an established church and tithes and spiritual courts, but Christianity with liberty of conscience to all men.’ [The Court was not entirely accurate in its historical assessment.] And in People v. Ruggles, 8 Johns 290, 294, 295, Chancellor Kent, the great commentator on American law, speaking as chief justice of the Supreme Court of New York, said: ‘The people of this state, in common with the people of this country, profess the general doctrines of Christianity as the rule of their faith and practice; and to scandalize the author of these doctrines is not only, in a religious point of view, extremely impious, but even in respect to the obligations due to society, is a gross violation of decency and good order…. The free, equal, and undisturbed enjoyment of religious opinion, whatever it may be, and free and decent discussions on any religious subject, is granted and secured; but to revile, with malicious and blasphemous contempt, the religion professed by almost the whole community is an abuse of that right. Nor are we bound by any expressions in the constitution, as some have strangely supposed, either not to punish at all, or to punish indiscriminately the like attacks upon the religion of Mahomet or of the Grand Lama; and for this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity, and not upon the doctrines or worship of those impostors.’ And in the famous case of Vidal v. Girard’s Ex’rs, 2 How. 127, 198, this court, while sustaining the will of Mr. Girard, with its provision for the creation of a college into which no minister should be permitted to enter, observed: ‘It is also said, and truly, that the Christian religion is a part of the common law of Pennsylvania.’
“If we pass beyond these matters to a view of American life, as expressed by its laws, its business, its customs, and society, we find everywhere a clear recognition of the same truth. [The laws, business, customs, and society of America, including the Constitution, were not entirely Christian but a blend of Christian and other thought.] Among other matters note the following: The form of oath universally prevailing, concluding with an appeal to the almighty; the custom of opening sessions of all deliberative bodies and most conventions with prayer; the prefatory words of all wills, ‘In the name of God, amen;’ the laws respecting the observance of the Sabbath, with the general cessation of all secular business, and the closing of courts, legislatures, and other similar public assemblies on that day; the churches and church organizations which abound in every city, town, and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation” (Rector, Etc., of Holy Trinity Church v. United States, 143 U.S. 457 at 471-472, 12 S. Ct. 511 at 516 (1892)). [Emphasis mine. Bracketed sentence added by this author. Christopher Columbus was a Catholic, and regardless of his declarations that his journey to the New World was inspired by God, Catholicism in the part of the New World dominated by that religion has produced entirely different and substantially inferior consequences than those seen in America prior to the denunciation of God by the American government.]

The majority of the justices at that time were Christians or at least men who respected Christianity. However, they obviously were weak spiritually since they relied upon man’s reasoning instead of the Word of God. They handed down opinions which attempted to honor God. Even though the Church of the Holy Trinity, the plaintiff in the case, was a corporation and therefore out of the perfect will of God, the Court still recognized some biblical principles in its decision. Obviously, they did not know and understand the true history of the First Amendment. They were influenced more by the theology of churches which had historically taught and practiced union of church and state than they were by historic Baptist (biblical) theology which had inspired men to stand against church-state establishments in both the Old World and in the American colonies; and consequently to be persecuted for (including being burned at the stake, drowned, drawn and quartered, drowned, buried alive, etc.) for their stand which included a stand for separation of church and state. Sadly, neither no justices (including Supreme Court Justices), nor the lawyers who argued to them, ever expressed the facts about the true foundation of the First Amendment.

The suit in Holy Trinity Church arose because the church, a corporation, hired an Englishman to serve as pastor. A federal law made it unlawful for “any person, company, partnership, or corporation” to bring in an immigrant into the United States “under contract or agreement” “to perform labor or service of any kind in the United States, its Territories, or the District of Columbia” (Ibid., p. 458, 12 S. Ct. at 511).

The Court noted that “a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers” and that “[t]he reason of the law in such cases should prevail over its letter” (Ibid., p. 459, 461, 12 S. Ct. at 512). The Court then stated, in examining the intent of the legislature in making the law:

“Obviously the thought expressed in this reaches only to the work of the manual laborer, as distinguished from that of the professional man. No one reading such a title would suppose that Congress had in its mind any purpose of staying the coming into this country of ministers of the gospel, or, indeed, of any class whose toil is that of the brain. The common understanding of the terms labor and laborers does not include preaching and preachers; and it is to be assumed that words and phrases are used in their ordinary meaning. So whatever of light is thrown upon the statute by the language of the title indicates an exclusion from its penal provisions of all contracts for the employment of ministers, rectors and pastors” (Ibid., p. 463, 12 S. Ct. at 513).

The Court further examined the intent of the statute, then stated:

“But beyond all these matters no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true” (Ibid., p. 465, 12 S. Ct. at 514).

From there, the Court proceeded to give a flawed history of the nation concluding that this is a Christian nation.

Many of the quotations in Holy Trinity Church use the word “religion” in referring to Christianity. The opinion traces the Christian heritage of America, although the Court failed to point out the theological conflict that resulted in the First Amendment (Ibid., pp. 465-470, 12 S. Ct. at 514-516).  Christianity and religion were synonymous to the majority of Americans, including the majority on the Supreme Court. This had been so universally accepted as truth that the courts had seldom addressed it (Ibid., p. 470, 12 S. Ct. at 516)!

From God’s perspective as reflected in His Word, the reasoning in even these nineteenth century opinions was flawed. For example, the Court referred to Jefferson’s obscure letter to the Danbury Baptists. In that letter, Jefferson used deistic terms and enlightenment reasoning. He referred to “restoring man to all his natural rights, convinced that he has no natural rights in opposition to his social duties.” The Court referred to “the laws of all civilized and Christian countries” and not to the Bible or to God and His principles. The history given was definitely modified and revised to a degree. Although the reasoning was far better overall than that of the Court in the mid-twentieth century and thereafter—which would successfully attempt to remove God from all public affairs—it was still a compromise in God’s eyes. The holy had been mixed with the unholy, and the holy was thereby corrupted and on its way out.

A time would come during the twentieth and twenty-first centuries when the majority on the Court, and the majority of Americans, were not born-again Christians. When that happened, the failure of the Constitution to declare the sovereignty of God and the proper goal for the nation–the glory of God—and the inclusion of enlightenment principles in the Constitution (and the Declaration of Independence) would make the undermining of Christian values and the removal of the nation from “under God” much easier.