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Religious 'neutrality' and the Lemon Test

By Steve Farrell
web posted January 3, 2005

They'd like to say that their approach to religion in public life is what our Founders gave us, what the Constitution meant in the Bill of Rights -- but they'd be lying.

And, well, since they are kind of anti-religious anyway, they do lie -- seemingly, without remorse.

But the truth is, the supposed tried and tested 'Lemon Test' (1) that they all stand behind as if it were the voice of God (okay, not the voice of God!) -- which mandates that government must be neutral about religion, that is, that government must force everyone who works in a public place, teaches or learns in a public classroom, stands behind a public podium desiring to state his or her position on this or that point of law or morality, to shut up about their faith, or else; -- such a test is as far from what the Founders gave us, as far from what the Constitution meant by its Bill of Rights as one can get.

Joseph StoryIn 1838, Supreme Court Justice Joseph Story, who had been, at that juncture, on the Supreme Court for 25 years, and who was thus a contemporary of the Founding Fathers, wrote his "A Familiar Exposition of the Constitution of the United States," which would be incorporated into his even more widely studied, Commentaries on the Constitution of the United States (a required text in every law school for nearly a century, and for some, still longer), made it crystal clear how dishonest, how off the beaten trail his contemporaries in the courts, in the legislative halls, in the schools are today.

Commenting on the Freedom of Religion clause in the First Amendment, he informs the modern mind quite bluntly:

"Indeed, the right of a society or government to interfere in matters of religion, will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues;—these never can be a matter of indifference in any well-ordered community.

"It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all events, it is impossible for those, who believe in the truth of Christianity, as a Divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects."

"This is a point wholly distinct from that of the right of private judgment in matters of religion, and of the freedom of public worship, according to the dictates of one's conscience.

"… at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation." (2)

Yes, you heard it right. The purpose of the freedom of religion clause was to encourage, not be indifferent to Christianity.

No, this is not about religious tests for office, not about civil punishments, exclusions, or favors for one faith over another. Not about establishing a state church. Not about compassionate conservatism and its socialist, Democratic Party mimicking penchant to force you to love your neighbor as yourself via taxation.

Forget that. Justice Story is simply talking about letting men speak freely on the subjects of religion and morality in every forum, public or private, so that the morality of the people, the very conscience of the people, will be at a high enough pitch to sustain liberty.

What does that mean? A scripture informs us, "I the Lord, make you free, therefore ye are free indeed; and the law also maketh you free. Nevertheless, when the wicked rule the people mourn." (3)

That is, a nation without scruples, call it free if you will, is a nation in bondage, or on its way.

How can there be respect for private property and every other right, how can there be men in office who restrain themselves from power grabbing and every other abuse if there is no solid and enduring belief in right and wrong?

Thus, religious conviction is vital to the health of the state.

And so, "The real difficulty" says Justice Story, "lies in ascertaining the limits, to which government may rightfully go, in fostering and encouraging religion."

That's the real test, the only test we ought to be debating. How to encourage religion and morality without compelling individuals to be religious.

Footnotes

1. The "Lemon Test" was formulated by Chief Justice Warren Burger by the majority opinion in Lemon v. Kurtzman (1971). As articulated by Chief Justice Burger, the test's first two requirements are a) that a statute must have a secular legislative purpose and b) that its principal or primary effect must be one that neither advances nor inhibits religion.
2. Story, Joseph. A Familiar Exposition of the Constitution of the United States, 1840, p. 315 -316.
3. Doctrine and Covenants 98:9, Church of Jesus Christ of Latter-day Saints.

ESR Contributing Editor Steve Farrell is associate professor of political economy at George Wythe College, press agent for Defend Marriage (a project of United Families International), a pundit at America's News Page, NewsMax.com, and the author of the highly praised inspirational novel, "Dark Rose". For you West Coast night owls, every Monday you can catch Steve on Mark Edward's 'Wake up America!' talk radio show on 50,000-Watt KDWN, 720 AM, 10 p.m. to midnight; or on the worldwide Internet at AmericanVoiceRadio.com.

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