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KEEPING CHURCH AND STATE SEPARATE: Legal Response

Keeping Church and State Separate

Essays in Response to Oklahoma State Question 790


Stating the Problem

Oklahoma State Question 790 is asking citizens to remove Article 2, Section 5, of the Oklahoma Constitution.  Article 2, Section 5, reads, “No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.”  This set of essays will provide a clear understanding of the issues and an argument why eliminating Article 2, Section 5, would be unbiblical, historically demeaning, legally indefensible, and impractical to implement.   


Essay #3

“Legal Response”


Colonial America

During Colonial America, religious liberty for all colonists was thwarted through legal entanglements between the established church and local magistrates.  The precedent of separation between church and state was unheard of in Colonial America, making life very difficult for the likes of Baptists, Quakers, and other non-conformist faiths.  Individuals like Roger Williams, Anna Hutchinson, and Mary Dyer were banished from the Massachusetts Bay Colony because based on the local laws, they practiced a faith contrary to the established church.  Dyer was actually executed at the Boston Commons on June 1, 1660.


Baptists Obadiah Holmes, John Clarke, and John Crandall were arrested in Massachusetts for preaching and proclaiming believer’s baptism.  Eventually Holmes was convicted and publicly whipped for his part in the matter. Under the governance of ruling authorities in the Bay Colonies, individuals fleeing persecution from the throne of England landed in America only to discover another oppressor.  Baptist and other dissenters’ stories served as essential evidence for the birth of a national policy on religious liberty.


Virginia Statute for Religious Liberty

At the final resting place of Thomas Jefferson at Monticello, visitors will read the following on his tombstone, “Here was buried Thomas Jefferson Author of the Declaration of Independence of The Statute of Virginia for Religious Freedom And Father of the University of Virginia.”  Jefferson, along with fellow Virginian, James Madison, felt very strongly about the the right for every citizen to legally have religious liberty within the new United States of America, as well as solidifying that very same liberty for his beloved state of Virginia.  Thus, he authored the “Bill for Establishing Religious Freedom” and sent it to the state assembly in 1779, twelve years before the First Amendment was adopted as part of the U.S. Constitution.  


Jefferson wrote, “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 endeavouring 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.”


He continued, “Be it enacted by 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 burthened 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 opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities” (Ragosta, 223-224).


In other words, Jefferson and Madison (who actually lobbied for the bill’s passage in 1786, while Jefferson was Minister to France) were successful in their attempt to separate church and state.  The two Founding Fathers from Virginia believed that no person should ever pay taxes to support any church.  Unknowingly, Jefferson’s statute would be the precursor to his more famous metaphor of establishing a wall between church and state.


Memorial and Remonstrance Against Religious Assessments

Jefferson’s bill did not come without controversy though.  Fellow Virginian Patrick Henry attempted to pass a state bill that would have taxed Virginians in order to support “Teachers of the Christian Religion.”  With Jefferson out of the country and the Bill for Establishing Religious Freedom still being debated on the Virginia House of Delegates, James Madison took up his pen in 1785 to author a stinging rebuttal to Henry.  It was called, “Memorial and Remonstrance Against Religious Assessments.”


Madison argued, “Because we hold it for a fundamental and undeniable truth, "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." [Virginia Declaration of Rights, art. 16] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”


He turns up his argument, “The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.”


Madison’s words sting.  The great author of the U.S. Constitution proclaimed that any government seeking to take away the conscience of the individual by requiring intellectual or financial submission to religion, perverts conscience and is a tyrant.  However, his most pointed words are for those who allow themselves to be governed by tyrants and are so willing to prostitute their consciences.  They are mere slaves to these tyrants.  


U.S. Constitution - No Religious Text Clause

With Virginia securing religious liberty and church/state separation in 1786, Madison and his fellow delegates began to take up the idea of creating a federal government on May 25, 1787 in Philadelphia.  After decades of religious and civil entanglements, the delegates had to make a clear statement regarding religions proper place in the new government they were forming. 


Before James Madison penned the first sixteen words of the First Amendment to the U.S. Constitution, the Constitutional Congress had to settle the election of federal legislators.  In Article VI, they addressed the issue of a religious test, “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”


It is evident that the Founders were adamant that church and state were to be separated when it came to electing officers of the new government.  By making this declaration, the Founders created a secular government where religion would be able to thrive in a free market void of government intrusion.  However, they also secured religions proper place by stating that religion can influence government from outside the wall, but that the election of legislators and the work they conduct should be in the interest of the government and not religion.


Bill of Rights - First Amendment

Immediately, the Founders understood the need for Amendments to the Constitution.  There were glaring generalities that needed to be secured through offering clearer meaning.  Therefore, Madison picked up his pen once again and began to craft the Bill of Rights, the first ten amendments to the U.S. Constitution.  The first sixteen words of the First Amendment speak loudly and clearly to what the Founder’s beliefs were when it came to religion’s place in the United States of America.


It reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  With the brilliance of these two clauses, known as the Establishment and Free Exercise Clause, the founders ensured the separation of church and state.  The government should not establish, endorse, or favor any religion.  However, the government also has the responsibility to ensure each citizen is able to practice or not practice their faith as their conscience dictates.  Both the Establishment and Free Exercise Clauses have steered church and state issues since America’s founding.  The Supreme Court has heard and ruled on numerous cases regarding the practice of religion in America, but they all have had to measure those decision agains the Founder’s first sixteen words of the First Amendment.


Even when the Court ruled for a broader understanding of the Free Exercise Clause than separatists would prefer, there still remained a high level of respect for church/state separation.  In the 1947 case of Everson v. Board of Education, the Court ruled that New Jersey law allowed reimbursement of money to families who sent their students to school using the public transportation system.  In the majority opinion (5-4 decision), Justice Hugo Black and fellow Baptist, declared, "in the words of Jefferson, the clause (First Amendment) against the establishment of religion by law was intended to erect 'a wall of separation between church and state.'…that wall must be high and impregnable.  We could not approve the slightest breach."


Treaty of Tripoli

After ratification of the Constitution, the country still muddled through the muddy waters of implementing their new adopted measures for self-governance.  Religious persecution still existed after the Constitution was adopted and ratified, so the country continued to debate the proper relationship between the church and state.  Many still felt like the U.S. Government should somehow acknowledge the institution was governed by the people, but with a direct influence of the Christian religion.


It has never been more apparent that America was not intended to be a “Christian nation” than when President John Adams signed the Treaty of Tripoli in 1797.  American merchant ships were being terrorized by Barbary pirates within the Mediterranean Sea.  To secure safe passage for the merchants, President Washington sent a delegation to negotiate peace in 1795.  By 1797 during the Adams’ Administration, a treaty was agreed upon, ratified by the Senate, and signed by Adams.


The important part of the treaty dealing with religion is found in Article 11.  It reads, “As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen (Muslims); and as the said States never entered into any war or act of hostility against any Mahometan (Mohammedan) nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.”


The conclusion is clear, America has never been nor should ever be, a government founded on religion.  While the Christian religion has always been influential to our Founders and citizens, the government is prohibited from establishing religion as a foundation for laws that govern the people.  When religion is used as a pretext to the laws and treaties of the country, a violation of the First Amendment is at stake, not to mention a barrier to treaties with other countries where their religion differs from the religion practiced by a large number of Americans.


Oklahoma Constitution & the Enabling Act

The Oklahoma Constitution was ratified by the U.S. Constitution on November 16, 1907, making Oklahoma the 46th U.S. state. When Oklahoma entered statehood, our state leaders understood they needed to comply with federal mandates to join the United States.  One such mandate is known as the Enabling Act of 1906.  According to the Oklahoma Historical Society, “The Enabling Act empowered the people of the Oklahoma and Indian territories to elect delegates to a constitutional convention and set up a state capital temporarily at Guthrie, in former Oklahoma Territory. The capital was to remain at Guthrie until 1913 and thereafter would be located permanently by electors chosen at a statewide election that would be called by the legislature.”


More so, the Act included several stipulations that were required laws in order to enter statehood.  Again, according to the Oklahoma Historical Society, there were two specific requirements dealing with religion, “Freedom of religion was to be preserved…and…the establishment of public schools, which were to be nonsectarian.”  By agreeing to these terms, Oklahoma was adopting the principles defined by the First Amendment of the U.S. Constitution.  


In addition to the Enabling Act, territories requesting statehood had to also agree that the U.S. Constitution reigned supreme over any state constitutions, as spelled out in the 14th Amendment of the U.S. Constitution.  It concludes, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”


While none-legal but still important, state legislators also heard testimonies from Native American children being whipped and forced to attend Christians worship services at agricultural schools funded by the government.  The new state was well aware of the evils conducted by coerced religion. In the new state of Oklahoma, the notion of “killing the Indian to save the soul” would not be acceptable for a state seeking to enact freedom for all of her citizens. The establishment and promotion of religion by the state would not be tolerated. Thus, when the Oklahoma Constitution was adopted in 1907, Article 2, Section 5, was included to protect the rights of every Oklahoma citizen, especially those coming from Indian Territory.


Conclusions

The previous arguments touch upon the overarching legal history as to why religious liberty and church/state separation are so crucial to the health and well being of our country.  While there remains numerous court cases that can be analyzed and discussed by legal experts, this essay attempted to demonstrate the legislative history of religious liberty.  Religious liberty has always been a bedrock for American principles and the wall separating church and state has been a wise and respectable barrier between the two.  If State Question 790 passes, there will be two immediate consequences.  First, Oklahoma will be seen as a state that does not respect its previous promises of what it means to be part of the United States.  Second, the law will be immediately appealed where it will be ruled unconstitutional based on both the Oklahoma Constitution and the United States Constitution.  This futile exercise conducted by lawmakers is nothing more than a veiled attempt to score political points and cause harm to state agencies (particular public education), but it is also an enormous waste of tax payers money and in direct violation with the founding principles of Oklahoma and the United States of America.

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