FRANK WAY The Death of The Christian Nation - The Judiciary and Church-State Relations

The Death of the Christian Nation: The Judiciary and Church-State Relations
Author(s): H. FRANK WAY

Source: Journal of Church and State , AUTUMN 1987, Vol. 29, No. 3 (AUTUMN 1987), pp.
509-529
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/23916704
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms
Oxford University Press is collaborating with JSTOR to digitize, preserve and extend access to
Journal of Church and State
This content downloaded from

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
All use subject to https://about.jstor.org/terms
The Death of the Christian Nation:
The Judiciary and
Church-State Relations
H. FRANK WAY
Contemporary critics of the United States Supreme Court's

decisions in church-state relations often argue that the decisions are
anti-historical, amounting to a sharp and precipitous break with our
constitutional history. That some new ground was broken in church
state relations during the Earl Warren and Warren Burger court
years is undoubtedly true. The paths may seem particularly new
if measured both against the Revolutionary era settlements and the
high degree of constitutional stability common in this area until well
after the Civil War. This stability was in no small measure a reflection
of both the settlements and the social and economic conditions which
existed until the eve of the Civil War. Chief among these conditions
was the small scale economy in a country overwhelmingly Protestant
and where the general level of commitment to organized religious
life remained relatively low. These were the conditions which existed
when the state judiciaries first encountered church-state issues in
the early years of the Republic. Not surprisingly the early decisions
were supportive of religion as the bulwark of the state and society.
As the conditions altered after the Civil War, as new issues appeared
and old issues were relitigated, the state appellate courts began slowly
but perceptively to reformulate the ground rules in church-state
relations. The process was by no means uniform; there was no clear
path across both time and space. Yet between 1800 and 1920, and
especially between 1870 and 1920, the state courts moved away from
a perception of America as a Christian nation, from a religious
communitarian conceptual framework and moved increasingly in the
direction of a secular based perspective in church-state relations.
Somewhere in the process the singular sense of America as a religious
community was lost.
Between 1800 and 1920 the volume of appellate litigation in church
H, FRANK WAY (B.S., Northeast Missouri State University; M.A., Oklahoma State
University; Ph.D., Cornell University) is the Chairman of Political Science at University of
California, Riverside. Books to the author's credit include Liberty in the Balance (1981) and
Criminal Justice and the American Constitution (1980). His articles have appeared in American
Political Science Review, Journal of Politics, Western Political Quarterly, and Judicature.
The author acknowledges the assistance of the Academic Senate Committee on Research
of the University of California, Riverside, and the encouragement of Edwin S. Gaustad.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
510 JOURNAL OF CHURCH AND STATE
state relations was low relative to ot

reported litigation clustered in four ar
to sabbath closing laws, disputes over ow
blasphemy cases, and certain constitu
private and public education. Betwee
87 recorded sabbath closing law cases, 1
disputes, 18 public school prayer and
involving public aid to sectarian school
cases.
The generally low volume of reported state litigati

state relations during these years, and especially the
of cases raising constitutional questions, poses a thres
May we infer from this a general satisfaction in church-s
Such an inference seems reasonable if we keep in mind ce
of the nineteenth century American legal system
constitutional law was in its infancy during these years.
were experienced in constitutional pleadings; there w
judicial leadership by the United States Supreme Court
the nineteenth century, state judiciaries were often suspec
and consequently reluctant to assume policy-defin
confrontations with the popular branches of government
Despite the foregoing one cannot ignore that the
decisions raising church-state questions, generally by a st
appellate court. The issues presented were often persisten
widespread and, in the aggregate, the decisions indicat
began to assume a role in redefining church-state relation
The Revolutionary Settlements
The early nineteenth century judiciary paid scant attention to stat

constitutional provisions on church-state relations and for this reaso
alone it is essential that we understand the general nature of th
revolutionary settlements in church-state relations. First, we sho
note that to characterize the changes in church-state relatio
occurring in the United States from 1776 to 1799 as revolutionar
settlements is perhaps misleading. The Revolutionary War was n
fought primarily for reasons of religious liberty, either for freedom
of worship or for disestablishment, although the War probab
hastened disestablishment and it may have given legitimacy to th
scattered efforts of religious dissenters.1 The Anglican Church h
1. Bernard Bailyn, The Ideological Origins of The American Revolution (Cambridge: Harv
University Press, 1967); cf., Martin Marty, Religion, Awakening, and Revolution, McGr
Publishing Co., 1977.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
DEATH OF THE CHRISTIAN NATION 511
been disestablished in all Southern state

disestablishment of the Congregational C
in the last New England state in 1833 (Ma
established churches, whether by gradual t
England, or a fundamental break with the pa
a new era, at least in those areas where o
state had been fused.2
Disestablishment meant the end of ch
beginnings of a fully voluntary system o
disestablishment republicanized religion,
religiously corporate community. Yet the
ethos did not produce secular republicanism
with its high wall of separation between ch
reflected the vision of James Madison and
it had little immediate impact in the new Re
inspired rationalism of the preamble of Je
Religious Freedom (1786) was ultimately t
constitutional law of church-state relations,
of the Republic. Disestablishment in the
ended the old preferential order, but it was
not cooperative relationships between rel
only is this clear in the early judicial dec
in the early state constitutional provisions o
An examination of early state constitutiona
of religious liberty produces a revealing patt
admitted into the Union prior to 1800
provisions protecting freedom of wors
majority had multiple complementary
provisions on compulsory church attenda
religious taxes and religious tests for public
against any diminution of civil rights be
Thus, the early state constitutions reflect
concern about freedom of religious wors
cannot be said about church-state relations.
Five of the eighteenth-century const
preference" provisions, although most of th
preference to any one religion (e.g., New J
North Carolina, Georgia, and South Caroli
England states, Vermont, Connecticut,
2. William G. McLoughlin, New England Dissent, 1630-

University Press, 1971), 1281.
3. Rhys Isaac, The Transformation of Virginia, 1740-1790
Carolina Press, 1982), Chapter 12.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
continued into the nineteenth century with e

thus had no constitutional provisions until
even then, Vermont never adopted a const
church-state relations. Furthermore, the New
of 1784, while it had a provision prohibitin
any one sect to another, had another prov
towns to support Protestant teachers of rel
the Maryland constitution of 1776 provided
of all Christians, but also authorized the le
support of the Christian religion.
Two other states, Virginia and Rhode I
constitutional provisions prohibiting the es
The Virginia Act establishing religious free
compulsory support of religion, did not
question of no establishment. Rhode Islan
established church, continued to rely on it
it adopted a constitution in 1842, and the l
provision on freedom of conscience and wo
century state constitutions, Delaware (17
Pennsylvania (1790), and Tennessee (1796), d
provisions which arguably could be conside
to any religion. These prohibitions contained
language with an apparently significant modif
in the plural to all religions rather than sim
any one sect over another.
Of the twenty-nine states admitted into the
century, twenty-three adopted some form
followed the First Amendment language of
simply banned the use of public fund
organizations and two, Oregon and Louisian
constitutional provision (Oregon) or did n
late nineteenth century (Louisiana).
A fair reading of these eighteenth- and ni
constitutions suggests that disestablishment
of religion and the state. On the contrary, oft
constitutions publicly acknowledged the
religion to the security of the state. Th
Constitution of 1784 (as well as the New H
of 1902) contained the following language: "
grounded on evangelical principles, will giv
and best security to the government, and w
men the strongest obligations to due su
knowledge of these, is most likely to be propa

129.11.193.2ffff:ffff:ffff on Thu, 01 Jan 1976 12:34:56 UTC
by the institution of public worsh

instruction in morality and religion . . .
Disestablishment, coupled with the
provisions, did signify a change, a me
pattern of fusion of organized religi
a rejection, however, of the Christian h
the various state judiciaries first encoun
they were faced with constitutional p
be characterized as ambiguous and which
supported cooperation between organized
Thus, the state constitutional provisio
little clear guidance on the difficult chu
to confront between 1800 and 1920. N
ization, urbanization, egalitarianism
strains on the almost corporate sense of
century America had with Protestan
the sense of religious community contin
century. Indeed, it was in the lingeri
Awakening that state courts began th
church-state relations.
Blasphemy in a Christian Nation
No early nineteenth-century legal issue helps to underscore more

the point that disestablishment did not mean separating the state
from religion than blasphemy cases. Blasphemy, that is, maliciously
casting contempt on the Christian religion, was not a crime solely
associated with those states that had established churches. A crime
of blasphemy was a measure of a state's deference to the sensibilities
of religious people and this was equally true in all states.
The small number of recorded appellate decisions in the blasphemy
area suggests that blasphemy was not a widely prosecuted offense.4
Nonetheless, these few cases do provide substantial insight into the
early judicial vision of church-state relations. No area of litigation
better epitomizes the early nineteenth-century judiciary's commitment
to America as a Christian nation than its blasphemy decisions.
Furthermore, the cases illustrate the difficulty the judiciary had in
focusing on individual grievances in a context where it was assumed
that religious liberty was intended solely for the protection of a
religious people who shared a common religious heritage.
It should come, then, as no surprise that in 1811 in New York
it would cause scandal to state publicly that "Jesus Christ was a
4. Apparently in the nineteenth century blasphemy was gradually subsumed into the offense
of disorderly conduct.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
bastard, and his mother must have been

and Justice Kent had scant regard fo
was protected by the "no preferen
Constitution.5 Kent rhetorically asked
be a part of the common law and answ
We stand equally in need now as formerly of a
principles of virtue which help to bind societ
in common with the people of this country
Christianity, as the rule of their faith and p
of these doctrines is not only, in a religious p
even in respect to the obligations due to soci
and good order.6
And what did Justice Kent think of the d
protected by New York's "free exercise" c
argument and responded:
The free, equal and undisturbed enjoyment of
be, and free and decent discussions on any relig
but to revile, with malicious and blasphemou
by almost the whole community, is an abus
by any expressions in the constitution, as so
not to punish at all, or to punish indiscriminate
of Mahomet or of the grand Lama; and for thi
that we are a christian people, and the morality
and not upon the doctrines or worship of those
To the defense's "no preference" arg

the purpose of the state constitution
magnanimous, "never meant to with
with it the best sanctions of moral a
consideration and notice of the law.
free and universal toleration, without
or discriminations, incident to a religiou
the Ruggles decision there were scatt
reviled Christianity,9 and courts contin
Christian sentiments had the pr
Pennsylvania Supreme Court noted in an
general Christianity is and always ha
law; not Christianity founded on any
Christianity with an established chur
courts, but Christianity with liberty of
5. People v. Ruggles, 5 Am. Dec. 335.

6. pp. 336-337.
7. Ibid., 336-7.
8. Ibid., 338.
9. E.g., Delaware v. Chandler, 3 Har. 553, (1837).
10. Updegraph v. Commonwealth, 11 Serg. and Rawle 394, (1824).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
Intentionally to ridicule Christianity was

early nineteenth-century judges, to under
state. In 1834 Abner Kneeland, a forme
into disbelief, publicly twitted the beliefs
after four trials he was convicted. Eviden
by the Boston judiciary as an apostle o
of revolutionary and ruinous principles."
Shaw quickly disposed of Kneeland's consti
that blasphemy laws were essential to pres
and the peace and safety of society.12
The blasphemy cases are illustrative of the
by early litigants when they sought to breath
provisions. The early nineteenth century jud
the safety of the state was tied to the prote
could hardly be expected to take seriously
an Abner Kneeland. Other litigants, whose
mainstream of Protestantism, also found the
to their needs. Chief among these were th
Seventh Day Baptists, who challenged Sabb
Sabbath Closing
Perhaps no governmental policy more closely reflected the dilemma

of the Christian nation in the early nineteenth century than Sabbath
closing laws. While compulsory Sabbath worship had disappeared
well before the Revolutionary era, the Puritan version of Sabbath,
the grim and gloomy Sunday, was legislative policy in all states.
Whatever may have been the true condition of organized religion
in the early nineteenth century, legislatures and courts were united
in supporting a vision of Sunday which may have been at odds
with reality. Sabbath laws envisioned Sunday as a day of worship,
religious reflection, and Bible study. This vision of Sunday assumed
both a religiously cohesive community and a small scale political
economy. Commercial activity, sports, most agricultural and
husbandry chores, and even travel ceased on Sunday.
Maintaining Sunday as a legally sacred day became increasingly
untenable. Most of the difficulties were economic in origin.
Industrialization and urbanization began to undermine the vision
of Sunday. Closing down industries which required continuous
operation or denying urban populations food and necessities, such
11. Leonard Levy, Blasphemy In Massachusetts (New York: Da Capo Press, 1973), p. xi.
12. Commonwealth v. Knee land, 37 Mass. 206, 221 (1837).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
as milk, bread, and fresh meat, would have be

The issue was further complicated with the
and subsequently the telegraph. In short, t
economy presupposed by early Sabbath laws
recapture by the 1860s. Furthermore, as the
cohesive religious bond was eroded. There w
of people who worshipped on Saturday—Jew
and, later, Seventh-day Adventists—and, perh
large numbers of newly immigrated Christ
that keeping the Sabbath holy meant keepin
Initially, state courts responded to litig
constitutionality of Sunday laws by reminding
was a Christian nation, that Sabbath laws s
for the state. In an 1817 Pennsylvania case
Sunday closing served to remind the peopl
rewards and punishments and thus reenforced
Sometimes the judiciary used the occasion
homily, as in an 1848 South Carolina case. Ther
lectured still another Jewish defendant, notin
The Lord's day, the day of the resurrection, is to us
the day of rest after the finishing a new creation. It i
triumph over death, hell and the grave. It was the birt
to whom and through whom, it opened up the way
faith leads unto everlasting life and eternal happine
to us, it is the Sabbath of the Lord. Its decent observa
is that which ought to be expected.
And then with notable parochialism the cou

What constitutes the standard of good morals? Is it not
is none other. Say that cannot be appealed to, and
good morals. The day of moral virtue in which we
that standard were abolished, lapse into the dark a
immorality. In this state the marriage tie is indissol
maxim? It is from the teaching of the New Testament
The Christian nation rationale in Sunday c

the middle 1850s. An 1854 Missouri case pr
of the Christian community theme. The
Durkheimian observation:
Those who question the constitutionality of our Sunday laws, seem to imagine
that the constitution is to be regarded as an instrument framed for a state composed
of strangers collected from all quarters of the globe, each with a religion of his
own, bound by no previous social ties, nor sympathizing in any common
reminiscences of the past; that, unlike ordinary laws, it is not to be construed
13. Commonwealth v. Wolf.\ 3 Pa (S&R) 48.

14. City of Charleston v. Benjamin, 1 L.R., N.S. 7, 8, 10;.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
in reference to the state and condition of those

that the words in which it is comprehended ar
respect to the history of the people for whom it w
This 1854 decision was perhaps more

suggesting that Sabbath laws provide
order but rather that the civil order w
court asked:
Convert Sunday into a worldly day by law, and what becomes of Christianity?
How would we reconcile the idea to our understanding, that a people professing
Christianity would make a fundamental law by which they would convert Sunday
into a wordly (sic) day? It would have been an act of deadly hostility to the religion
they professed, exposing it to the danger of being reduced to the condition in
which it was before the Roman world was governed by Christian princes.15
Yet by the time of the Ambs decision, state appellate courts were
already in the process of acceding to Sunday as a worldly day. Between
1817 and 1887, 25 percent of the recorded state Sunday closing cases
offered a Christian nation or Christian piety rationale. Between 1888
and 1920 this percentage dropped to less than ten.
What replaced the Christian nation theme was a straightforward
secular argument that Sunday closing laws were simply an exercise
of the legislature's police power to provide a common day of rest.
With only one quite limited exception, no appellate court between
1800 and 1920 declared a Sunday closing law unconstitutional on
grounds of violation of religious liberty.16
Toward the end of the nineteenth century the lack of judicial
sensitivity to the religious needs of Sabbatarians began to stand in
sharp contrast to the increasing judicial sensitivity to the needs of
entrepreneurs. As the legislatures began to expand rapidly the number
of activities and commodities exempted from these laws, the judiciary
began to respond favorably to claims of unfairness in legislative
classifications by those not exempted.
The apparent double standard between religious claimants and
those claims based on economic disadvantage is not without
significance. The judiciary, with the sole exception of a short-lived
California decison in 1858, saw neither a free exercise issue for
religious minorities nor a "no establishment" issue in the protection
accorded majority religious customs. In short, Sunday closing
litigation proved to be a dead end for those minorities seeking
constitutional adjustments. Yet if the Sunday cases were viewed only
from this perspective the larger meaning would be lost. However,
15. Missouri v. Ambs, 20 Mo. 214, 216, 219.

16. Cf., Ex parle Newman, 9 Cal. R. 502, 1858; reversed in Ex parte Andrews, 18 Cal.
R. 679, 1861.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
disingenuous the police power/secular ration

is possible that it had unintended if not ironi
subsequent development of "no establishm
judiciary did in these cases was to cast aside the
benefits the Sunday closing laws had for C
only at the direct secular purpose of the laws.
By moving away from a Christian conceptu
judiciary began to concede that religious homo
a viable rationale in church-state relations. Whil
standard was not immediately followed in oth
nonetheless it undermined the religious comm
of the early nineteenth-century church-state lit
communitarian perspective was necessaril
therefore, anti-minority and anti-individual
laws, bereft of sacred quality, and increasingly l
exemptions, became somewhat more viable c
The percentage of constitutional challenges ba
of legislative exemptions to the individual cl
percent during the years 1800-1887 to 76 perc
1888-1920. While the number of successful fa
only eleven cases between 1888 and 1920, stil
litigation had permanently changed. By 1
grappling with Sunday baseball and movie
acceded to Sunday newspapers and trains. Prom
in this context somehow seemed out of place.
The Prayer and Bible Reading Cases
While judicial accommodation to Christian or Protestant

community preferences disappeared by the 1850s in Sunday clo
cases, the Christian communitarian theme remained the domin
rationale in prayer and Bible reading opinions throughout this perio
The popular preference of Protestants, sometimes euphemistic
appearing as "majority rule" in judicial opinions, was the leitm
in most of the nineteenth-century prayer and Bible reading decisio
between 1854 and 1918. In the first recorded decision, the Mai
Supreme Court warned Irish Catholics in 1854, in somewhat ve
language:
Large masses of foreign population are among us, weak in the midst of our strength.
Mere citizenship is of no avail, unless they imbibe the liberal spirit of our laws
and institutions, unless they become citizens in fact as well as in name. In no
other way can the process of assimilation be so readily and thoroughly accomplished
as through the medium of the public schools, which are alike open to the children
of the rich and the poor, of the stranger and the citizen. It is the duty of those

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
to whom this sacred trust is confided to discharg

and Christian kindness.17
In this Maine decision, Bridget Donahoe lost her appeal and was
expelled from school for refusing to participate in the Protestant
exercises. Five years later, eleven-year old Thomas Wall of Boston
was beaten by his teacher for refusing to recite similar prayers and
to read from the King James Bible. Wall, along with several hundred
other Catholic children, had been encouraged by their parish priest
on the previous Sunday not to be cowards to their religion, and
they were urged to refuse to participate in public school religion
exercises. Wall and sixty other students followed the priest's urgings,
and when Wall refused to repeat the Ten Commandments his teacher
took a rattan stick and beat his hands for thirty minutes, after which
time Wall submitted. In upholding the punishment of Wall, the
Boston Police Court reasoned, "Our schools are the granite
foundation on which our republican government rests." To excuse
Wall's insubordination on the grounds of religious freedom would
be to open the door to similar objections by other denominations,
resulting, the court argued, in a "war upon the Bible and its use
in the common schools."18
What the judiciary found difficult to accept was the claim by
Catholics and Jews that the King James Bible was sectarian. To
the judiciary it was a book of the highest moral teachings, favored
by the majority in a Christian community. As the Texas Supreme
Court noted in 1908: "Christianity is so interwoven with the web
and woof of the state government that to sustain the contention
that the Constitution prohibits reading the Bible, offering prayers,
or singing songs of a religious character in any public building of
the government would produce a condition bordering upon moral
anarchy. The absurd and hurtful consequences furnish a strong
argument against the soundness of the proposition. . . ."19
Although a Christian communitarian form of analysis remained
the dominant rationale in prayer and Bible reading cases, it did not
go unchallenged. After the Civil War, the voting strength of the
Catholic population was, in some communities, sufficiently powerful
so that Catholics could effectively veto education funding proposals,
at least those requiring voter approval. In Cincinnati, Ohio, in the
early 1870s Catholics threatened to vote against public school bonds
if Bible readings were not removed from the schools. The Board
17. Donahoe v. Richards, 38 Maine 379.

18. Commonwealth v. Cook, 7 Am. L.R. 417 (1859).
19. Church v. Bullock, 109 S.W. 115, (1908).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
of Education ordered an end to the twenty-

a number of taxpayers brought suit to com
its order. The decision of the Ohio Suprem
Board's order, was path breaking. It not only a
communitarian mode of analysis, it attacked t
as singularly inappropriate and challenged c
was part of the common law, noting tha
religious opinion; that majorities can take
that the religion clauses were intended to prot
the court discovered Madison and Jefferson and what for 1872 was
the heretical idea that religion is not necessary for good government,
at least not in the sense that public schools must teach religious
opinion. Religious opinion, the Court observed was "beyond the
scope of sense and reason" and by its nature a matter of faith.20
The Ohio case was not important because other courts followed
its reasoning, although a few did, but rather because it marked the
first fully secular judicial rationale for religious liberty. What the
Ohio court realized was that in a religiously diverse society, the state
and all its agencies must be secular; that the state in the words of
the court, must keep its "hands off' of religion.
Well after the Ohio decision, a few other states did move cautiously
in the direction of adopting a secular rationale in public school cases.
In 1890, the Wisconsin Supreme Court banned Bible readings in
the state schools, maintaining that such readings violated the state's
constitutional prohibitions against sectarian instruction in the public
schools.21 In 1902, the Nebraska Supreme Court banned prayers,
hymns, and Bible readings.22 A similar decision was handed down
in 1910 in Illinois. In the Illinois case, the court's secular analysis
was explicit: "The school, like the government is simply a civil
institution. It is secular, and not religious, in its purpose. The truths
of the Bible are the truths of religion, which do not come within
the province of the public schools."23
What appeared to be uppermost in the minds of the judges in
these state decisions was the threat to the public school system
occasioned by religious strife over the exercises. As the courts
abandoned the religious communitarian perspective in favor of a
secular perspective, invariably they became more openly sensitive
to individual rights. It was not until this shift occurred that the
20. Board of Education v. Minor, 13 Am. R. 233, 246, (1872).

21. State ex rel. Weiss v. The District School Board, 44 N.W. 967.
22. State ex rel. Freeman v. Scheve, 59 L.R.A. 927; on re-hearing the court equivocated
on Bible readings.
23. People ex rel. Ring v. The Board of Education, 245 111. 334, 349.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
judiciary began to discuss constitutional p

individual rights. The communitarian vi
majoritarian. The shift was not uniform ov
occasionally a court tried to straddle the issue.
The Catholic Issue
The Christian-nation theme and accompanying expressions

Christian piety in early judicial opinions did not signify any br
religious toleration. This was evident in the Sunday cases as we
as in many prayer and Bible reading decisions. The Christian-nat
theme was, in fact, often a code for Protestant nation. The ear
settlements were based on a Protestant consensus. That consensus
was challenged with the introduction of a large immigrant Catholic
population. Immigrant Catholics brought with them their own
religious traditions and adjusting church-state relations to the
presence of Catholics proved to be difficult. For example, Catholics
had traditional holy days which most Protestant groups did not
recognize. Thus, when Catholic public school children sought to be
excused to attend religious services, they sometimes encountered stiff
resistance from school boards. In Battleboro, Vermont, in 1874 the
Board of Education refused to readmit 150 Catholic students who
had attended services on the Feast of Corpus Christi. The Board
told their parents that readmission would be contingent on an
agreement by the local priest and the parents that Catholic students
would never again be absent for such a reason.25 Yet, the Catholic
issue could not be easily swept aside, if for no other reason than
sheer numbers.26
Roman Catholics had not played a significant role in the religious
settlement of the Revolutionary era, and the nineteenth-century
immigrant Catholic church did not share some of the consensual
features of the settlements. The major area of disagreement was
education. Catholics were neither prepared to accept a Protestant
24. E.g., Herold v. Parish Board of Education, 136 La. 1034, 1915.
25. Ferriter v. Tyler, 48 Vt. 444, (1876).
26. The maximum estimate of the U.S. Catholic population in 1785 in the thirteen states
was 35,000; see Sidney Ahlstrom, A Religious History of the American People (New Haven:
Yale University Press, 1972), p. 342. With the onset of the Irish potato famines the increase
was dramatic; by 1850 there were 1.7 million Roman Catholics in the U.S.; by 1870, 6 million;
and by 1900 12 million. Edwin Gaustad, Historical Atlas of Religion in America, revised
ed. (New York: Harper and Row, 1976), figure 93. By 1906 Roman Catholics constituted
a majority of the religious population in 16 states, including all of New England, New York,
New Jersey, and Michigan. Furthermore, the Roman Catholic Church by 1906 was the largest
single church in 29 out of 48 states. Gaustad, figures 36-39.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
influenced public school system nor sec

a central feature of the Revolutionar
churches would be voluntary in member
By and large, Protestants were co
arrangements. Roman Catholics, ho
requesting funding for parochial
however, the response to Catholic r
negative. Nonetheless, in states with a l
were pockets of success, some of whi
in the courts. The common denominator
cases spanning the years 1851 through
aid was a marriage of convenience. Th
sometimes willing to fund education in
parochial schools were already in plac
turned to them as means of containin
Rather than build new public schools
Catholic schools, offering them a var
Nonetheless, by 1920 eight of the tw
that had considered the issue of public
against it. None of the individual sta
been particularly influential in other
exception of a 1918 Iowa Supreme Cou
merits some explication.
By the early part of the twentieth
Church was the largest single deno
a small township in a dominantly Rom
school board sold its school building
lease with the local Catholic paroc
parochial school acted as a public sc
salary of the Catholic nun who ta
arrangement may not have been too
the common school was underfunded
school with a religious school might h
available for education. Indeed, th
dismissed an appeal in a somewhat si
27. E.g., People ex rel. Roman Catholic Orphan A

400, 851; cf., State ex rel. Nevada Orphan Asylum
County v. Industrial School, 8 Am. State R. 386, 111.
28. E.g., Scripture v. Burns, 12 N.W. 760, (Iowa)
559, 111., (1887); Richter v. Cordes, 58 N.W. 1110
District, 118 N.W. 353, Wisconsin (1908).
29. Scripture v. Burns 12 N.W. 760.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
as had the supreme courts of Illinois,

the other hand, by the turn of the centu
courts were beginning to question such
Iowa Supreme Court chose to follow th
The 1918 Iowa decision pointed in th
in church-state relations. Character
sponsorship of religion or worship as "
opinion adopted a strict separation fra
certainty the court boldly stated:
If there is any one thing which is well settled
American people as a whole, it is the fixed an
there shall be an absolute and unequivocal sep
that our public school system, supported by th
alike—Catholic, Protestant, Jew, Gentile, belie
directly or indirectly for religious instruction
made an instrumentality of proselytizing inf
organization, sect, creed, or belief.33
Iowa Catholics may have been puzzl

of strict separation, particularly in vi
decision in a prayer and Bible reading c
Court had refused to enjoin public sch
worship exercises and indeed had warn
that the court was not charged with th
influence of the Bible.34
The rationale in the 1918 Iowa decision was not entirely inventive.
Public policy had shifted, especially in the area of public education.
By 1915 over thirty states, including Iowa, had adopted constitutional
provisions prohibiting state financial aid to sectarian controlled
institutions.35 By the 1870s these constitutional provisions were
occasionally used by the state boards to strike down financial aid
either to Protestant or Catholic schools.36 The Knowlton decision
did not spell the immediate end of state aid to parochial schools.
There was episodic litigation well into the 1950s challenging practices
which were essentially carbon copies of the Knowlton facts.
30. Millard v. The Board of Education, Illinois, 10 N.E. 669 (1887); Nance v. Johnson,
Texas, 19 S.W. 559 (1892), Involving a cooperative arrangement with a Baptist Church; Dorner
v. School District, Wisconsin, 118 N.W. 353 (1908).
31. E.g., Pronovost v. Brunette, North Dakota, 162 N.W. 300 (1917).
32. Knowlton v. Baumhover, 155 N.W. 202.
33. Ibid., 206.
34. Moore v. Monroe, 20 N.W. 475.
35. Anson Phelps Stokes, Church and State In the United States, 3 vols.(New York: Harper
& Brothers, 1950), 2:492.
36. E.g., Otkin v. Lamkin, 56 Miss. 764 (1879); Synod of Dakota v. South, 50 N.W. 632,
1891.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
Sometimes the aid was upheld37 and in oth

These early sectarian school funding c
only because most of them rejected pub
but also because of their secular perspectiv
The Christian nation theme was nowhere
instead a new theme in the lexicon of Am
namely the sanctity of the public school sy
now seemed tied to public education rath
the Christian religion. As the Kentucky
in 1917: "The common school, however
or deficient its curriculum, is the most
in the state, and its efficiency and wort
destroyed by entangling it in denomination
Civil Courts as Ecclesiastical Courts:

The Church Property Dispute Cases
One of the great traps in legal research is to give to legal hist

a tidiness and coherence which is counter to the zig-zag and of
contradictory course of legal development. In the parochial sch
funding cases, some state courts discovered James Madison
Thomas Jefferson and lectured school boards on the virtues of strict
separation. Yet often the same courts followed a policy of judicial
interference in the internal affairs of divided churches, even going
so far as to devise a judicial imprimatur for religious orthodoxy.
The inconsistency with a constitutional policy of "no preference"
simply did not occur to those judges, who in church property dispute
cases often awarded the property to those faithful to orthodox
doctrine.
Between 1800 and 1920 state appellate courts decided 112 cases
involving disputes over the ownership of church property. Taken
together, these cases constitute one of the most interesting and even
novel chapters in church-state relations. The cases overwhelmingly
involved disputes over church doctrine and polity, and they were
primarily disputes within Protestant churches; collectively they reflect
the Protestant paradigm, i.e., sectarianism and fragmentation.40 In
37. E.g., Johnson v. Boyd, Ind. 28 N.E. 2d 256 (1940); Rowlings v. Butler, Kentucky, 290
S.W. 2d 801 (1956).
38. E.g., Harfst v. Hoegen, Missouri, 163 S.W. 2d 609 (1942); Wright v. The School District,
Kansas, 99 P. 2d 737 (1940).
39. Williams v. Board of Trustees, 191 S.W. 507.
40. Peter Berger, The Sacred Canopy: Elements of a Sociological Theory of Religion (New
Haven: Yale University Press, 1972), p. 151.

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
the course of the nineteenth and twentieth

churches disputed and divided over confessio
religious enthusiasm, slavery, original s
millennialism, and the list goes on. Eventually
ended up in the civil courts in the form of pr
members of the divided congregations.
In the early years of the Republic, the first
decisions were handed down in Massachusetts. These cases were the
result of the division in the Congregational church in the Boston
area between the trinitarians and the Unitarians. The Unitarian
dominated Massachusetts appellate bench awarded the vast bulk of
the disputed property to the Unitarian minorities of the local
congregations.41 The judges, however, artfully crafted a rule in favor
of majorities out of the Unitarian's minority status; they did this
by using as their baseline the civil parish, where the Unitarians often
constituted the voting majority, rather than the church congregation.
Massachusetts' use of majority rule as a basis for resolving church
property disputes was generally adopted throughout New England;
and, until after the Civil War, it was also widely used in the South
and parts of the Middle West.
Not all states followed the lead of Massachusetts. In states with
a high degree of religious pluralism, as in the Middle Atlantic States,
a quite different path was adopted. Beginning in the 1830s the courts
in New York, Pennsylvania, and New Jersey adopted an implied
trust rule, a rule recently applied in the English courts.42 It is this
rule, the so-called Pearson rule, which casts a long and revealing
shadow on American church-state relations.
Simply stated the Pearson rule held that where churches were
divided over matters of faith and polity, the property was to be
awarded to that part of the church, however small, most faithful
to the doctrines and polity of the church at the time it was established.
In effect, the rule created a trust in favor of orthodoxy, regardless
of whether there were any documentary evidence of such a trust.
Occasionally the rule worked in favor of an orthodox majority, but
generally it was the weapon employed by a minority to wrest control
of a church from an "unfaithful" majority. Indeed, in the worst
possible scenario for a plaintiff in a property dispute (i.e., when
the plaintiff was in minority status and not in possession of the
property), plaintiffs using the Pearson rule won 53 percent of their
cases in the nineteenth century.
41. E.g., Baker v. Fales, 16 Mass. 498 (1820).

42. Attorney General v. Pearson, 7 Sim. 290; 3 Meriv 353 (1817).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
Doctrinal disputation has been characterist

denominations. The Pearson rule was appare
judiciary to stabilize what may have appear
century judges as an increasingly atomistic
it did not occur to these judges that by preferr
over another that they might be settin
establishments. Thus, when the Pennsylvan
Lutheran church divided over "new mea
revivalism), the court used the Pearson rule
to the minority who rejected the "new measur
New York Evangelican Lutheran churches sp
Confession, the court minutely examined t
corruption of the confession. After concludin
departed from the orthodox doctrine, t
heterodox minister from preaching, ordere
and excluded any heterodox trustee from bein
Often the disputes had their origins in dis
government. This was a special problem fo
a quasi-hierarchical basis, such as the Presb
churches. Rival synods and general assembli
nineteenth century, and most of these break-
origins in theological disputes. The Pearson
courts in these situations by holding that
to church doctrine included faithfulness to ecclesiastical
government.45
Whatever logic there may be in implying a trust for cont
in connectional association in churches organized along hier
lines, that logic could hardly apply to those churches
historically considered local congregations to be miniature re
as was the case of Baptists and the Disciples of Christ. Yet the P
rule was applied in the nineteenth century to Baptist congre
either for departing from doctrine or leaving a church con
or association.46 Gradually, state courts modified the Pearso
either by ruling that departure from doctrine had to be ra
substantial or by presuming local majority rule in a congreg
structured church.
It was not until late in the twentieth century that the United States
Supreme Court authoritatively questioned the constitutionality of
43. App v. Lutheran Congregation, 6 Pa. (Barr) 201 (1847).

44. Kniskern v. Lutheran Churches, 1 N.Y. (Sandf.) 439 (1844).
45. E.g., Commonwealth v. Green, 4 Pa. (Whart. R.) 531 (1839).
46. Smith v. Pedigo, Ind., 33 N.E. 777 (1893); Mt. Zion Baptist v. Whitmore, Iowa, 49
N.W. 81 (1891).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
the departure from doctrine rule47 as it

binding decision in 1871.48 Yet, for well
civil courts sometimes acted as ecclesiast
the merits of complex theological issues. B
such action seems inconsistent with the p
discrimination. Why were some courts as
slow to see a constitutional problem? Whi
century judicial opinions noted that the cour
to interfere in the internal affairs of ch
constitutional issue simply did not ar
challenged the rule on constitutional grou
Furthermore, judicial language did not hin
until the 1890s.49 It was not until 1917 t
and state was even used as a standard in a
Judicial rules take on a life of their ow
explain why judges continued to apply ev
from doctrine rule. Stare decisis, however
Pearson rule was initially adopted. Th
fragmentary in nature, that the judiciar
prompted by a strong historical sense of
language of these early decisions is reple
commitment to "ancient customs and usages
order."52 Coupled with this commitment
a strong judicial suspicion of majority rule,
were adopting new doctrines and new m
New York court observed, if church maj
practices, where will it stop? "How long will
the parsonage, and the schoolhouse, whic
the desire of spreading evangelical piety,
orgies of the heathen in his blindness or the
in his madness?"54
47. Presbyterian Church v. Hull Memorial Hospital, 393 U.S. 440 (1969) and Jones v. Wolf,
443 U.S. 595 (1979).
48. Watson v. Jones, 80 U.S. 679, was decided under diversity of citizenship jurisdiction.
49. Jarrell v. Sproles, Tex., 49 S.W. 904 (1899).
50. Bendewald v. Ley, N.D., 168 N.W. 693.
51. Hendrickson v. Decow, 1 N.J. Eq 579, 625 (1832); Den v. Bolton, 1 N.J. Law 206,
231 (1831).
52. Associate Reformed Church v. Trustee, 4 N.J. Eq. 77, 95 (1837).
53. E.g., Field v. Field, 9 N.Y. (Wend.) 394 (1832).
54. People v. Steele, 2 Barb. 397. 415 (1848).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
Conclusion
For legal scholars the early church-state opinions provid

interesting example of constitutional lacuna. With limited excep
the opinions reported here did not find it necessary to make
fleeting references to "no preference" provisions. In effect,
Christian nation theme and even the broad religious communit
theme of the early church property cases, made it unnecessary
the judiciary to flesh out the meaning of the sparsely and of
ambiguously worded state constitutional provisions. While the
of disestablishment, that is of separate missions for church and st
was generally respected, this did not encompass a policy of st
neutrality in religion. Beyond Jefferson, Madison, and Ge
Mason, few had envisioned any practical need for a policy of
neutrality. From the perspective of the late eighteenth century
presumption that the destiny of the new Republic was closely
to its moral and religious fibre was inescapable. Christian nat
had long considered religion as the bulwark of civic virtue; the
judiciary shared this perception and acted accordingly.
Yet, time undermined the perception. Nineteenth-cent
immigration, continued Protestant fragmentation, industrializ
and urbanization all exacted a heavy toll. In the years follo
the Civil War, the assumption that a common religious heritage co
bridge differences was becoming increasingly untenable. Indeed
great surge in Protestant evangelism in the late nineteenth cen
and the rapid rise in church membership did not make it
to resolve the thorny problems in church-state relations. Thus
serenity and piety of the early nineteenth-century Sabbath now
to compete with baseball, blast furnaces, railroads, and trolley ser
and the new demands of the urban consumer. Finally, the "Cat
issue" became the catalyst for reconceptualizing the "no prefer
provisions. New state constitutional provisions, aimed at pl
greater distance between church and state, were adopted. In t
the judiciary began the search for a new rationale to replace
Christian nation theme. What the search uncovered, in at least
jurisdictions, was Jefferson and Madison.
While Jefferson and Madison both had well-publicized view
church-state relations, nonetheless, neither their ideas nor their n
were mentioned in church-state litigation for almost three-qua
of a century. Perhaps the courts turned back to Jefferson and Ma
because their names added a measure of legitimacy to newly fashio
judicial policies. Nonetheless, it seems almost paradoxical th
the very time Dwight Moody's (1837-1899) "old time religion"

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC
gaining currency in America, that th

turn to "strict separation" of church a
of church and state as a judicial polic
expression of the broader current of
in America in the late nineteenth and
almost organic sense of community as
nation theme could neither withstand these forces nor the hard
realities of increasing religious pluralism. Furthermore, it is well to
remember that by the late nineteenth century a standard of secular
individualism, here separation of church and state, could lay claim
to a legitimacy as powerful as America's strong communitarian
impulse. The judicial attention to the constitutional rights of
individual claimants that emerges in some of these late nineteenth
century cases responded to an important tap root in American
political culture.
To those currently advocating a "return" to a policy of "no
preference" in church-state relations, such as Chief Justice William
H. Rehnquist and Secretary of Education William J. Bennett, the
early state appellate court decisions reported here may give added
confirmation to their arguments. In point of fact, however, these
early nineteenth century opinions had little regard for textual exegesis
of "no preference" provisions; the opinions simply swept the problems
aside under a general rationale of America as a Christian nation.
When conditions altered after the Civil War, the state courts searched
for new policies and new rationales. Contrary to Chief Justice
Rehnquist, it was not an erring United States Supreme Court that
introduced Madison and Jefferson into our constitutional law but
rather late nineteenth century state judges.55 In the grand tradition
of Anglo-American law, when these judges faced altered conditions
and difficult problems they did not let the warp of time preclude
the search for new rules to complement old principles. Finally, if
the proponents of a "return to no preference" proceed on the
assumption that the emergence of a policy separation of church
state was a first step in the destruction of America's moral
architecture, then the question arises whether judicial rules are cause
or effect, responses or shaping forces?
55. See his dissent in Wallace v. Jaffree, 105 S. Ct. 2479, 2512 (1985).

129.11.193.27 on Mon, 09 Jan 2023 16:03:32 UTC

FRANK WAY The Death of The Christian Nation - The Judiciary and Church-State Relations

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

FRANK WAY The Death of The Christian Nation - The Judiciary and Church-State Relations

Uploaded by

Copyright:

Available Formats

The Death of the Christian Nation: The Judiciary and Church-State Relations

Author(s): H. FRANK WAY

Stable URL: https://www.jstor.org/stable/23916704

This content downloaded from

Contemporary critics of the United States Supreme Court's

This content downloaded from

state relations was low relative to ot

The generally low volume of reported state litigati

The Revolutionary Settlements

The early nineteenth century judiciary paid scant attention to stat

This content downloaded from

been disestablished in all Southern state

2. William G. McLoughlin, New England Dissent, 1630-

This content downloaded from

continued into the nineteenth century with e

This content downloaded from

by the institution of public worsh

Blasphemy in a Christian Nation

No early nineteenth-century legal issue helps to underscore more

This content downloaded from

bastard, and his mother must have been

To the defense's "no preference" arg

5. People v. Ruggles, 5 Am. Dec. 335.

This content downloaded from

Intentionally to ridicule Christianity was

Perhaps no governmental policy more closely reflected the dilemma

This content downloaded from

as milk, bread, and fresh meat, would have be

And then with notable parochialism the cou

The Christian nation rationale in Sunday c

13. Commonwealth v. Wolf.\ 3 Pa (S&R) 48.

This content downloaded from

in reference to the state and condition of those

This 1854 decision was perhaps more

15. Missouri v. Ambs, 20 Mo. 214, 216, 219.

This content downloaded from

disingenuous the police power/secular ration

The Prayer and Bible Reading Cases

While judicial accommodation to Christian or Protestant

This content downloaded from

to whom this sacred trust is confided to discharg

17. Donahoe v. Richards, 38 Maine 379.

This content downloaded from

of Education ordered an end to the twenty-

20. Board of Education v. Minor, 13 Am. R. 233, 246, (1872).

This content downloaded from

judiciary began to discuss constitutional p

The Catholic Issue

The Christian-nation theme and accompanying expressions

This content downloaded from

influenced public school system nor sec

27. E.g., People ex rel. Roman Catholic Orphan A

This content downloaded from

as had the supreme courts of Illinois,

Iowa Catholics may have been puzzl

This content downloaded from

Sometimes the aid was upheld37 and in oth

Civil Courts as Ecclesiastical Courts:

One of the great traps in legal research is to give to legal hist

This content downloaded from

the course of the nineteenth and twentieth

41. E.g., Baker v. Fales, 16 Mass. 498 (1820).

This content downloaded from