* Considerable differences will appear in the provisions [* 468] in the State constitutions on the general subject of the present chapter; some of them being confined to declarations and prohibitions whose purpose is to secure the most perfect equality before the law of all shades of religious belief, while some exhibit a jealousy of ecclesiastical authority by making persons who exercise the functions of clergyman, priest, or teacher of any religious persuasion, society, or sect, ineligible to civil office; 1 and still others show some traces of the old notion, that truth and a sense of duty do not consort with scepticism in religion.2 ship ought to command the ship's course, yea, and also command that justice, peace, and sobriety be kept and practised, both among the seamen and all the passengers. If any of the seamen refuse to perform their service, or passengers to pay their freight; if any refuse to help, in person or purse, towards the common charges or defence; if any refuse to obey the common laws and orders of the ship, concerning their common peace and preservation; if any shall mutiny and rise up against their commanders and officers; if any should preach or write that there ought to be no commanders or officers, because all are equal in Christ, therefore no masters nor officers, no laws nor orders, no corrections nor punishments; I say I never denied but in such cases, whatever is pretended, the commander or commanders may judge, resist, compel, and punish such transgressors according to their deserts and merits." Arnold's History of Rhode Island, Vol. I. p. 254, citing Knowles, 279, 280. 1 There are provisions to this effect, more or less broad, in the Constitutions of Tennessee, Louisiana, Delaware, Maryland, and Kentucky. 2 The Constitution of Pennsylvania provides "that no person who acknowledges the being of God, and a future state of rewards and punishments, shall, on account of his relig ious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth." Art. 1, § 4. - The Constitution of North Carolina: "The following classes of persons shall be disqualified for office: First. All persons who shall deny the existence of Almighty God," &c. Art. 6, § 5. The Constitutions of Mississippi and South Carolina : "No person who denies the existence of the Supreme Being shall hold any office under this Constitution." The Constitution of Tennessee: "No person who denies the being of a God, or of a future state of rewards and punishments, shall hold any office in the civil department of this State."- On the other hand, the Constitutions of Georgia, Kansas, Virginia, West Virginia, Maine, Delaware, Indiana, Iowa, Oregon, Ohio, New Jersey, Nebraska, Minnesota, Arkansas, Louisiana, Texas, Alabama, Missouri, Rhode Island, Nevada, and Wisconsin expressly forbid religious tests as a qualification for office or public trust. Very inconsistently the Constitutions of Mississippi and Tennessee contain a similar prohibition. Art. 12, §.3. In the Constitutions of Alabama, Colorado, Georgia, Illinois, Iowa, Kentucky, Michigan, New Jersey, Rhode Island, and West Virginia, it is provided that no person shall be denied any civil or political right, privilege, or capacity on account of [* 469] There are exceptional clauses, however, though not many in number; and it is believed that, where they exist, they are not often made use of to deprive any person of the civil or political rights or privileges which are placed by law within the reach of his fellows. Those things which are not lawful under any of the American constitutions be stated thus: may 1. Any law respecting an establishment of religion. The legislatures have not been left at liberty to effect a union of Church and State, or to establish preferences by law in favor of any one religious persuasion or mode of worship. There is not complete religious liberty where any one sect is favored by the State and given an advantage by law over other sects.1 Whatever establishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle; it is enough that it creates an inequality of right or privilege. 2. Compulsory support, by taxation or otherwise, of religious instruction. Not only is no one denomination to be favored at the expense of the rest, but all support of religious instruction must be entirely voluntary. It is not within the sphere of government to coerce it.2 his religious opinions. - The Constitution of Maryland provides "that no religious test ought ever to be required as a qualification for any office of trust or profit in this State, other than a declaration of belief in the existence of God; nor shall the legislature prescribe any other oath of office than the oath prescribed by this constitution." Declaration of Rights, Art. 37. The Constitution of Illinois provides that "the free exercise and enjoyment of religious profession and worship without discrimination shall for ever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentious ness, or justify practices inconsistent 1 A city ordinance is void which gives to one sect a privilege denied to others. Shreveport v. Levy, 26 La. Ann. 671. 2 We must exempt from this the 3. Compulsory attendance upon religious worship. Whoever is not led by choice or a sense of duty to attend upon the ordinances of religion is not to be compelled to do so by the State. It is the province of the State to enforce, so far as it may be found practicable, the obligations and duties which the citizen may be under or may owe to his fellow-citizen or to society; but those which spring from the relations between himself and his Maker are to be enforced by the admonitions of the conscience, and not by the penalties of human laws. Indeed, as all real worship must essentially and necessarily consist in the free-will offering of adoration and gratitude by the creature to the Creator, human laws are obviously inadequate to incite or compel those internal and voluntary emotions which shall induce it, and human penalties at most could only enforce the observance of idle ceremonies, which, when unwillingly performed, are alike valueless to the participants and devoid of all the elements of true worship. 4. Restraints upon the free exercise of religion according to the dictates of the conscience. No external authority is to place itself * between the finite being and the Infinite [* 470] when the former is seeking to render the homage that is due, and in a mode which commends itself to his conscience and judgment as being suitable for him to render and acceptable to its object. 5. Restraints upon the expression of religious belief. An earnest believer usually regards it as his duty to propagate his opinions, and to bring others to his views. To deprive him of this right is to take from him the power to perform what he considers a most sacred obligation. These are the prohibitions which in some form of words are to be found in the American constitutions, and which secure free State of New Hampshire, whose constitution permits the legislature to authorize 'the several towns, parishes, bodies corporate, or religious societies within this State to make adequate provisions, at their own expense, for the support and maintenance of public Protestant teachers of piety, religion, and morality;" but not to tax those of other sects or denominations for their support. Part 1, Art. 6. As to meaning of Protestant, see Hale v. Everett, 53 N. H. 1. The attempt to amend the above provision by striking out the word "Protestant" was made in 1876, but failed, though at the same time the acceptance of the Protestant religion as a test for office was abolished, and the application of moneys raised by taxation to the support of denominational schools was prohibited. No man in relig dom of conscience and of religious worship. ious matters is to be subjected to the censorship of the State or of any public authority; and the State is not to inquire into or take notice of religious belief, when the citizen performs his duty to the State and to his fellows, and is guilty of no breach of public morals or public decorum.2 1 This whole subject was considered very largely in the case of Minor v. The Board of Education. in the Superior Court of Cincinnati, involving the right of the school board of that city to exclude the reading of the Bible from the public schools. The case was reported and published by Robert Clarke and Co., Cincinnati, under the title, "The Bible in the Public Schools," 1870. The point of the case may be briefly stated. The constitution of the State, after various provisions for the protection of religious liberty, contained this clause: "Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction." There being no legislation on the subject, except such as conferred large discretionary power on the Board of Education in the management of schools, that body passed a resolution, that religious instruction and the reading of religious books, including the Holy Bible, are prohibited in the Common Schools of Cincinnati; it being the true object and intent of this rule to allow the children of the parents of all sects and opinions, in matters of faith and worship, to enjoy alike the benefit of the Common School fund." Certain tax-payers and citizens of said city, on the pretence that this action was against public policy and morality, and in violation of the spirit and intent of 66 the provision in the constitution which has been quoted, filed their complaint in the Superior Court, praying that the board be enjoined from enforcing said resolution. The Superior Court (Judge Taft dissenting) made an order granting the prayer of the complaint: but the Supreme Court, on appeal, reversed it, holding that the provision in the constitution requiring the passage of suitable laws to encourage morality and religion was one addressed solely to the judgment and discretion of the legislative department; and that, in the absence of any legislation on the subject, the Board of Education could not be compelled to permit the reading of the Bible in the schools. Board of Education v. Minor, 23 Ohio, N. s. 211. On the other hand, it has been decided that the school authorities, in their discretion, may compel the reading of the Bible in schools by pupils, even though it be against the objection and protest of their parents. Donahoe v. Richards, 38 Me. 376; Spiller v. Woburn, 12 Allen, 127. 2 Congress is forbidden, by the first amendment to the Constitution of the United States, from making any law respecting an establishment of religion, or prohibiting the free exercise thereof. Mr. Story says of this provision: "It was under a solemn consciousness of the dangers from ecclesiastical ambition, the bigotry of spiritual pride, and the intolerance of sects, exemplified in our domestic, as well as in foreign annals, that it was deemed advisable to exclude from the national government all power to act upon the sub But while thus careful to establish, protect, and defend religious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of [* 471] religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. This public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme ject. The situation, too, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, Episcopalians constituted the predominant sect; in others, Presbyterians; in others, Congregationalists; in others, Quakers; and in others again there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the infidel, may sit down at the common table of the national councils, without any inquisition into their faith or mode of worship." Story on the Constitution, § 1879. |