Disestablishment Trends May Be Slower Than They First Appear
There are some obstinate Twitter “historians” out there—the well, actually types—that from their allegedly credentialed perch at decidedly ideological think tanks, armed with degrees in fake specialties continue to froth against Christian nationalism. What bugs them is the historic case for Christian laws and Christian society put forward by their opponents. Imposed upon American history by these “historians” is a trendy narrative. That is to say, a Whiggish, progressive story about the “trends” allegedly baked into the American cake which invariably, by the faithful guidance of the invisible hand of progress, have led to exactly the situation in which we now find ourselves. It was always going to be, and intended to be, this way, they insist. America is always becoming but never yet is itself. We still have pesky baggage to shed, baggage not adequately dealt with at the outset that hampers the pure principles promulgated a priori at the founding. We are a nation of principles, ideals, not people, place or, you know, history.
And so, when Christian nationalists make the simple argument, supported by historic data evidencing American practice, that their proposals and aspirations are congruent with the American socio-political past and constitutional order, the trendy, sentimentalist Whigs retort that the data in question is obsolete. All of it is now out of scope given the trends, the trajectory of America qua America, or America as she is supposed to be in their mind’s eye.
This retort requires a truncated and simplistic historical record. A few letters from household names and the Treaty of Tripoli suffice. The natural end of Christianity in America as officially and legally recognized, protected, and promoted was always to be found in post-war, Warren court interpretation and application of the First Amendment. America never was and was never intended to be a Christian nation.
A few politically motivated, anachronistic dissenters might have muddied the waters, but there is no real indication of the veracity of the Christian nationalist historic claim nor, therefore, its proscriptions. If this narrative is accepted, Christian nationalists are on their heels, forced to argue for an aberration, a negation of America if their desires are to be satisfied. Not a favorable position.
Most in view for the sentimentalists is what can broadly be called, religious establishment.
In his 1892 Church of Holy Trinity v. United States majority opinion, Justice David Brewer declared America a “Christian nation.” The evidence? A survey—further detailed in his lectures at Haverford College in 1902—of colonial and antebellum charters, laws, and constitutions, not to mention prior legal opinions declaring much the same. Settlement of Virginia, Pennsylvania, and New England had been explicitly Christian, and generally Protestant, as the early documents showed. Virginia’s first charter, the Mayflower Compact, the Fundamental Orders of Connecticut, William Penn’s charter, and so on. The evidence for the official and unofficial influence of Protestantism on the colonial period is irrefutable. So too is the existence of early state establishments. All this is well documented if lamented as backward by secular historians.
Likewise, the long and winding process of disestablishment is accounted for. Post-disestablishment, the inquiry becomes whether official disestablishment (i.e., removal of parish tax support for particular Protestant denominations and religious requirements for civil office, etc.) necessarily yielded (or intended) secularization and pluralism—the ostracization of Christianity from public morality, law, and policy. In other words, a negation of any kind of de facto establishment even as the de iure establishment declined.
Now, at the outset we must note that “establishment” is not necessarily one thing. Like property rights, it is best to think about establishment as a bundle of sticks. Various elements can constitute an establishment. Under contemporary jurisprudence, any explicit or inexplicit favorability toward or promotion of religion can fall under Establishment Clause violation—albeit, perhaps, this is changing now.
The most colloquially obvious stick in the establishment bundle is financial support for a particular denomination or religion.
Even here we have distance between ourselves and eighteenth-century Americans; the scope of the latter would have been confined by experience and religious paradigms to an array of Christian denominations. And, of course, as David Hackett Fischer and Barry Allen Shain have shown, the overwhelming majority of Americans at the founding were British and Protestant (of some stripe). Indeed, for all the debate over which intellectual influences most condition the founding—Locke, Reid, or Rousseau and etc.—Protestantism remains criminally under investigated in this regard given it serves as the only ubiquitous influence up and down the eastern seaboard and up and down the class ladder.
When “religion” crops up in founding era documents, a safe assumption is that it serves as shorthand for western Christianity. In many ways, our First Amendment jurisprudence today still contains strong Christian assumptions—progressives would say, bias—as Khyati Joshi has convincingly argued. Justice John Paul Stevens certainly thought this was the case in his dissent in Van Orden v. Perry (2005).
But tax support for public Protestant ministers, as the Massachusetts Constitution (1780) put it, is not the only element of establishment. Legal acknowledgement of, and favorability for, a particular religion is also a stick in the establishment bundle which was not cast wholesale on the pyre by nineteenth century jurists. This too can take diverse forms.
Several such forms or manifestations can be invoked here. blasphemy laws, Sabbath laws, religious tests for office, limitations on full civil participation (see New Jersey Constitution (1776)), and what we might call general religious and moral assumptions imbedded in law. The longevity of the latter in America has, obviously, outperformed the others.
But, the disparity there is not as great as many would assume—and we must keep in mind, at all times, the relative youth of America itself. Our timeline is (historically) bizarrely short and so our perspective usually skewed and shortsighted.
What of post-1833, post-disestablishment America? Did Christianity cease to receive legal recognition and privilege? Were secularism and pluralism accepted as necessary consequence of and corollary to disestablishment? Did the intellectual (and jurisprudential) world progress to more enlightened frontiers? To borrow from Stephen Wolfe, did America cease in 1833 to see itself as a Christian nation and act as a Christian nation? Legal history suggests it did not, at least for another 75 years or so. The trend toward secularism and pluralism—public atheism—it would seem was a bit slower than some suggest, and later jurists like Joseph Story or David Brewer were not marginal.
On the contrary, courts continued to recognize Christianity as intricate to the Anglo-American legal tradition, enforce blasphemy and Sabbath laws, and reflect a Protestant intellectual milieu into the twentieth century.
As State v. Chandler, 2 Del. 553, 562 (Del. Gen. Sess. 1837) put it, “every court in a civilized country is bound to notice in the same way, what is the prevailing religion of the people.” As with other customs and expectations, the common belief of people in a common law jurisdiction was part of the common law itself. (For more, see here.)
What was that religion? Christianity, at least in the general sense described by Updegraph v. Commonwealth, 11 Serg. & Rawle 394 (Pa. 1824). This recognition was common in nineteenth century American courts. Van Ness v. Pacard U.S. (2 Pet.) 137, 144 (1829) held that the United States has adopted only that portion of the common law applicable to our situation and, apparently, this common law maxim, textually originating with Matthew Hale in Taylor’s Case (1676)—not until 1917 did the House of Lords officially detach the common law from Christianity.
Mohney v. Cook 26 Pa. 342, 347 (1855), upholding Sabbath laws, maintained that Christian institutions were entitled to respect because Christianity was “involved in our social nature” so much so that even non-Christians could not “reject those sentiments, customs, and principles which it has spread among the people… like the air we breathe, they have become the common stock of the whole country.”
An inexhaustive string citation is in order here for those with the requisite stamina to peruse the data:
City Council of Charleston v. Benjamin, 33 S.C.L. 508 (1846); Vidal v. Girard, 43 U.S. (2 How.) 127 (1844); Zeisweiss v. James, 63 Pa. 465, 471 (1870) (“It is in entire consistency with this sacred guarantee of the rights of conscience and religious liberty to hold that, even if Christianity is no part of the law of the land, it is the popular religion of the country, an insult to which would be indictable as directly tending to disturb the public peace.”); Specht v. Commonwealth, 8 Barr. 312, 325 (Pa. 1848) (“In a Christian community, where a very large majority of the people celebrate the first day of the week as their chosen period of rest from labor, it is not surprising that they should have received the legislative sanction.”); Shover v. State, 10 Ark. 259 (1850); Richmond v. Moore, 107 Ill. 429, 435 (1883) (“When the great body of the people are Christians… our laws and institutions must necessarily be based upon and embody the teachings of the Redeemer of mankind. It is impossible that it should be otherwise… our civilization and institutions are emphatically Christian…”); Adams v. Gay, 19 Utah 365 (1847); Lindenmuller v. The People, 33 Barb. 548 (N.Y. 1861); Church of the Holy Trinity v. United States, 143 U.S. 457, 465 (1892); United States v. Macintosh, 282 U.S. 605, 625 (1931); Snavely v. Booth, 36 Del. 378, 388 (1935) (“Christian religion… is part of our common law.”); Commonwealth v. American Baseball Club, 290 Pa. 136, 138 (1927) (“Christianity is part of the common law of Pennsylvania, and its people are Christian people.”); c.f. Bloom v. Richards, 2 Ohio St. 387 (1863) (the first state supreme court in America to deny that Christianity is part of the common law); State v. Bott, 31 La. Ann. 663 (1879); Board of Educ. Of Cincinnati v. Minor, 23 Ohio St. 211, 246-47 (1872) (presenting a negative treatment of the Christianity as common law maxim but nevertheless admitting that “[t]he only foundation—rather, the only excuse—for the proposition, that Christianity is part of the law of this country, is the fact that it is a Christian country, and that its constitutions and laws are made by a Christian people.”); see also Ex Parte Newman, 9 Cal. 502 (1858), rev’d sub nom. Ex Parte Andrews, 18 Cal. 679 (1861).
By the mid-twentieth century, however, courts like Zorach v. Clauson, 343 U.S. 306, 313 (1952), could only bring themselves to admit that “we are a religious people.” For more commentary on this topic see Stuart Banner’s “When Christianity was Part of the Common Law.” Banner notes that by the late nineteenth and early twentieth-century, Christianity was namechecked with less frequency, and some courts began to, following Thomas Jefferson contra Joseph Story, denounce the idea entirely. (See also, Jayson Spiegel’s “Christianity as Part of the Common Law.”)
This widespread recognition of Christianity as intricate to the common law can be dismissed as hollow rhetorical piety and dicta by critics if they want, but an honest assessment would at least consider whether courts were actually serious about what they said. Maybe some seriousness can be discerned in Sabbath law cases.
Consider Kilgour v. Miks, 6 G. & J. 268, 274 (Md. 1834) where the Maryland Court of Appeals wrote that “Ours is a christian community, and a day set apart as the day of rest, consecrated by the resurrection of our Saviour, and embraces the next twenty-four hours next ensuing the midnight of Saturday.”
In City Council of Charleston v. Benjamin, 3 S.C.L. (2 Strob.) 508 (1846), Judge O’Neall wrote:
“It was that same glorious spirit of mercy and love, which proclaimed the birth of the Saviour, and as its consequence, “peace, good will towards men.” It was that same Christianity, which sought its promulgators among the humblest of the Jews, and taught them, “love your enemies, bless them that curse you, do good to them which hate you, and pray for them which despitefully use you and persecute you.” But this toleration, thus granted, is a religious toleration; it is the free exercise and enjoyment of religious profession and worship, with two provisions, one of which, that which guards against acts of licentiousness, testifies to the Christian construction, which this section should receive.”
Therefore, religious liberty notwithstanding, the court could legitimately maintain that since Christianity and good morals were synonymous, blasphemy and divorce were illegal. Motivated readers can easily find many more similar cases. To name a few interesting ones, Gunter v. State, 69 Tenn. 129 (1878), People v. Havnor, 43 N.E. 541, 543 (1896), People v. Moses, 35 N.E. 499, 500 (1893). Note too that Bethany Rupert has concluded that it was the interests of industrial capital, not widespread irreligion, that killed continued Sabbath legislation.
What of those spooky blasphemy laws? Everyone knows People v. Ruggles (1811) by now. What of its reception? True enough, Chancellor Kent was forced to defend his holding at a later constitutional convention in New York in 1821, and did so apparently the satisfaction of most there. Consider also Rufus King’s comments on the issue at the same convention in opposition to a proposed amendment to outlaw state support of Christianity including the enforcement of blasphemy laws (and also that Martin Van Buren supported the same position):
“While all mankind are by our constitution tolerated, and free to enjoy religious profession and worship within this state, yet the religious professions of the Pagan, the Mahometan, and the Christian, are not, in the eye of the law, of equal truth and excellence. According to the Christian system, men pass into a future state of existence, when the deeds of their life become the subject of rewards or punishment-the moral law rests upon the truth of this doctrine, without which it has no sufficient sanction. Our laws constantly refer to this revelation, and by the oath which they prescribe, we appeal to the Supreme Being, so to deal with us hereafter, as we observe the obligation of our oaths.
The Pagan world were, and are, without the mighty influence of this principle, which is proclaimed in the Christian system-their morals were destitute of its powerful sanction, while their oaths neither awakened the hopes, nor the fears which a belief in Christianity inspires.
While the constitution tolerates the religious professions and worship of all men, it does more in behalf of the religion of the gospel-and by acknowledging, and in certain sense, incorporating its truths into the laws of the land, we are restrained from adopting the proposed amendment, whereby the Christian religion may lose the security which every other Christian nation is anxious to afford to it.”
Of course, the last jailing for blasphemy upheld by an American court was Commonwealth of Massachusetts v. Abner Kneeland (1838). And yet, in State v. Mockus (1921), a blasphemy conviction was upheld, as was another in Arkansas in 1928. Not until 1952—after the incorporation of the First Amendment—did the U.S. Supreme Court overturn a state blasphemy law as unconstitutional, in that case, New York’s (Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)). Again, kind of a long time for a trend to play out. (For an originalist position on the First Amendment and blasphemy laws, see this recent excellent article in the Harvard Law Review.)
Consider also the testimony of cases like Zeisweiss v. James, 63 Pa. 465, 471 (1870) which have nothing to do with Sabbath or blasphemy laws and ask whether the maxim that Christianity is part of the common law is hollow dicta. In Zeisweiss, the Pennsylvania Supreme Court refused to enforce a devise for the establishment of an “Infidel Society” writing:
“It is in entire consistency with this sacred guarantee of the rights of conscience and religious liberty to hold that, even if Christianity is no part of the law of the land, it is the popular religion of the country, an insult to which would be indictable as directly tending to disturb the public peace. The laws and institutions of this state are built on the foundation of reverence for Christianity. To this extent, at least, it must certainly be considered as well settled that the religion revealed in the Bible is not to be openly reviled, ridiculed or blasphemed, to the annoyance of sincere believers who compose the great mass of the good people of the Commonwealth.”
Since it is Reformation Day, we would be remise if we did not note something further regarding the generally Protestant American mind that pervaded even the judiciary at a surprisingly (to some) late date. (Or at least we may satisfy the historic curiosities of the author.)
Chancellor James Kent, in Lawyer v. Cipperly, 7 Paige Ch. 281 (N.Y. Ch. 1838), showed his Reformation history chops. The opening portion, while lengthy, is worth quoting in full:
“I am inclined to think that the objection is well taken that the corporation is not made a party to this proceeding to deprive its trustees of the control of the temporalities of the church. The objection to such a proceeding is that a decision against these individual trustees will not be binding upon their successors, who will represent the corporation only. Neither will a decision in their favor settle the right claimed by the complainants as against the corporation; for the new trustees could not set up a decree against the complainants in favor of the present defendants, in bar of a new suit to try the same question over again. It is not necessary for me, however, in this case, to put my decision upon that technical ground. Neither shall I attempt to decide the question as to which party, if either, has departed from the original standard of faith which existed in this society at its original formation.
If that standard was the first or original edition of the Lutheran confession of faith as drawn up by Philip Melancthon, the friend and fellow laborer of the great German reformer, to be presented to the diet of Augsburgh in 1530, then it is probable that the complainants and their adherents have departed from that standard, in some particulars at least. But if the standard of Zion church at the time of its incorporation, or rather at the time of its original formation, was the Augsburgh confession as afterwards modified by Melancthon himself, and as explained by Francke, the celebrated professor in the university of Halle, nearly two centuries afterwards, the complainants and those who are acting with them are perhaps as near to that standard in doctrine as their opponents. It probably is not questioned by either party that the principal doctrines of the Augsburgh confession are and ever have been considered as the standard of faith in all the Evangelical Lutheran churches in the United States.
But whether all the churches of that denomination of Christians, either here or elsewhere, have literally adhered to the doctrine of consubstantiation or the mystical impanation or union of the real body and blood of Christ with the unchanged elements of bread and wine in the eucharist, or to the doctrine of a limited auricular confession and of private absolution, or of the necessity of baptism to salvation, certainly admits of some doubt. It is well known that a great diversity of opinion existed between the early Bohemian, German and Swiss reformers in relation to the presence of the Saviour in the sacrament of the Lord’s supper. The Hussites may have believed in the doctrine of transubstantiation.
But if they did, they still differed with the Romanists; who held that the real body and blood was contained in each element, and therefore refused the cup to the laity as unnecessary. Luther and Melancthon both originally held to the doctrine of impanation, or consubstantiation. Zuinglius understood the words “this is my body” in a figurative sense only; while Calvin, who repudiated the doctrine of the real presence in the consecrated emblems, insisted upon the special spiritual presence of our Saviour during the administration of the sacrament. And against all these doctrines the anathema maranathas of the Papal church were directed, by the canons of the council of Trent. It is believed, however, that Melancthon himself, some years before his death, adopted the Calvinistic doctrine on that subject as did many other Lutheran divines who did not adopt the principles of the German Reformed Church generally.
And it is not improbable that this and some of the other questions which have produced the recent schism, have continued as disputed or unsettled points of doctrine in many of the Lutheran churches down to the present day. I cannot perceive, however, why this difference of opinion should necessarily lead to a division in this branch of the Christian church. One of the doctrines inculcated by Luther and Melancthon, and by all the other reformers who joined in the original Augsburgh confession, and which was also the doctrine afterwards taught by the pastor of Glaucha in his biblical lectures at the university of Halle, allowed for a difference of opinion in minor particulars in reference to all human creeds. And they adopted the sacred scriptures alone as the only infallible standard of faith and practice. And such now is, or at least ought to be, the doctrine of all Evangelical Lutheran churches which profess to be based upon the reformation principles contained in the confession of faith promulgated by the German reformers, at the diet of Augsburgh, on the memorable 25th June, 1530.”
Judge Read’s concurring opinion in Sparhawk v. Union Passenger Railroad Co., 54 Pa. 401 (1867) is another fascinating opinion of what could rightly be called American Christian jurisprudence—meaning, recognition of Christianity as part of the common law coupled with Scriptural and historical citations in route to supporting Sabbath laws.
In other cases, invocation of the Reformers was more or less window dressing, and yet, it does speak to a bygone intellectual-religious milieu conditioned by Protestantism.
In 1908, appellate Judge Gaynor of New York considered on appeal a violation of New York county’s Sabbath laws. A Henry Hemleb had been convicted by the lower court of conducting an “illegal public show” on the Lord’s day. That is, he “exhibited pictures by throwing them on a canvas screen in the usual way, and at the same time had a piano played at intervals.” Hemleb’s pictures were not indecent and he did not charge an admission fee. Yet, New York’s penal code prohibited “all shooting, hunting, fishing, playing, horse racing, gaming, or other public exercises or shows, upon the first day of the week, and all noise disturbing the peace of the day.”
Judge Gaynor briefly summarized the various tweaks made to the statute in question over the preceding decades and then offered an important interpretive point:
“words have to be construed in line with what precedes. They have to be construed in the light of the society of words in which they are found, under two familiar maxims which apply in full force in civil cases [citation omitted] and all the more so in criminal cases for obvious reasons; for criminal statutes cannot be left in doubt, nor strained in construction to make out a crime. No crime exists which is not defined expressly or by necessary implication. The general words in question mean other like public sports, exercises or shows.”
And in this statute, amidst changes,
“The original legislative object has never been changed, but continued in each amendment. There is no ground for the argument that the general intention and scope of the original act has been departed from.”
“This becomes all the more manifest by the fact of the Legislature passing a subsequent separate act prohibiting a long list of theatrical or stage plays, and performances not to be classed as out–of–door or open.”
“If the phrase ‘or other public sports, exercises or shows’ in [the statute] is to be given the meaning contended for by the learned district attorney, and adopted below, i. e., that it covers all shows or exhibitions indoors or out–of–doors or open to which the public is invited, then [the addition above] adds nothing; it becomes mere rigmarole and superfluous.”
The last paragraph of the opinion adds:
“It will not do to say that the legislative mind was so pregnant of the intention of stopping what is called the desecration of the Christian Sabbath that the courts cannot set the bounds to the statute which the words used, construed in the usual way, set, without thwarting the legislative intention. When it is considered that nowhere outside of the British Isles has the Old Testament notion of a still Sabbath ever existed in the Christian world, it is impossible to attribute to the aggregate Christian mind, as rather fairly represented in our Legislature, with such a varied national lineage in its membership, any such strictness or singleness of purpose. Christians of no nation, church or sect, except in the British Isles, and not there until recent centuries, ever entertained the Old Testament notion of a still Sabbath, but favored and practiced innocent and healthy exercises and amusements after church on Sunday. John Knox visited John Calvin of a Sunday afternoon at Geneva and found him out back at a game of bowls on the green.”
The judgment of the lower court was reversed. (People v. Hemleb, 127 A.D. 356 (App. Div. 1908)). An 1879 West Virginia case discussing Sabbath laws rattled off a list of “leading protestant reformers,” including, “Melanchton, Beza, Bucer, Zuinglius, Knox, and Cranmer.” These Reformers were rallied to the proposition that strict Sabbatarianism was not necessary. The interesting thing for us is that the names of magisterial reformers were ever mentioned at all by an American court anywhere.
Other similar examples could be cited. The point is not that invocation of magisterial Reformers was definitive, but that no observer can read such cases and justly assume any other background context than that of widespread Protestantism, even post-1833. From sometime thereafter, America remained a Christian nation in its inheritance, law, and public reason—its still is on the first count and statistically, even at this late hour.
On and on we could go, not necessarily with mentions of the magisterial Reformers from the bench, but with legal evidence supporting the fact that the American re-Christianization project intellectually housed at present under the Christian nationalist banner sits squarely within the scope of the American constitutional order, common law, and intellectual tradition. (American Reformer’s resourcement project is meant to break Protestants free from those tired narratives that stifle political imagination.) The above smattering of sources is admittedly sporadic, but that is because it is sometimes overwhelming to drink from a firehose. Query how much more examples must be amassed to put sentimentalist children to bed so the adults can resume dinner discussion?
Image credit: The Early Puritans of New England Going to Church (1867), George Henry Boughton (1833–1905).