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Neither First nor Second Amendment Rights are Absolute

New Yorker

© The New Yorker 1989

When The New Yorker published this cartoon in 1989, it made me laugh.

I found the cartoon humorous at the time because 24 years ago hardly anyone HAD met a Second Amendment Lawyer, and because its humor played off of my own professional status as a First Amendment lawyer.

Time and events have vitiated the joke and turned the cartoon into an anachronism whose premise was completely lost on a young lawyer to whom I showed it recently.   Since 1989 the Second Amendment, which provides that “A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed,” has come into its own.

A couple of decades ago Second Amendment lawyers were rare because there was little work for them to do.  As Jill Lepore wrote in The New Yorker last year, “In the two centuries following the adoption of the Bill of Rights, in 1791, no amendment received less attention in the courts than the Second, except the Third” (which prohibits the billeting of soldiers in private homes).   The Second Amendment was so seldom written about or litigated over that it became known as “the lost amendment.”   Moreover, the scant case law that was extant generally held that the amendment authorized state militias to bear arms but did not give individuals a right to own weapons.  See, e.g., Miller v. U.S., 307 U.S. 174 (1939).

The fascinating political, cultural and legal forces and events that elevated the Second Amendment’s star in the Constitutional firmament are beyond the scope of this commentary but are well chronicled in Ms. Lepore’s “Battleground America: One nation, under the gun,” (The New Yorker, April 23, 2012) and in a lengthy 2008 commentary by Reva B. Siegel of the Yale Law School (“Dead or Alive: Originalism as Popular Constitutionalism in Heller,” 122 Harvard L. Rev. 191).  Suffice it to say that by 2008, when the Supreme Court issued its opinion in District of Columbia v. Heller, the “lost amendment” had evolved (at least in the minds of five justices) into the source of a fundamental right of individual citizens to own firearms.

In other words, the last 25 years or so have seen Second Amendment rights emerge in much the same way that First Amendment rights developed during the period between World War I and 1931, during which decisions such as Gitlow v. New York, Whitney v. California and Near v. Minnesota declared that freedom of speech and press were fundamental rights protected by the due process clause of the Fourteenth Amendment.

These days we hear a lot of gun advocates saying, or at least implying, that because the Second Amendment says the right to bear arms “shall not be infringed,” no gun control measures of any kind are constitutional.  Indeed, this was essentially the position that Ted Cruz and 13 other U.S. Senators laid out in a March, 2013 letter to Senate Majority Leader Harry Reid in which they threated to filibuster any new restrictions, no matter how tepid, on “responsible, law-abiding gun owners.”

I don’t know whether this absolutist interpretation of the Second Amendment reflects ignorance, duplicity or both.  Perhaps it stems in part from a feeling on the part of gun supporters that they need to rely on hyperbole to protect a right that was formally and fully recognized only five years ago.  Whatever its basis, it is wrong, because no constitutional rights – including the First Amendment rights to which I have devoted much of my legal career – are completely unfettered.

The Second Amendment says the right to bear arms shall not be “infringed;” the First says the freedoms of speech and press cannot be “abridged.”  The two terms are interchangeable and indistinguishable in this context, but whether they were intended to mean exactly the same thing or not, the courts have not interpreted either to mean that the rights in question are absolute.  Indeed, Justice Scalia acknowledged as much in his opinion for the Court in District of Columbia v. Heller, the 2008 case that clarified the scope of the Second Amendment.   He wrote:

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not [citation omitted].  Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose.

Limitations on the freedom of speech most often take the form of “time, place and manner” restrictions, such as local ordinances that restrict the locations, hours and decibels at which sound trucks may operate, or that prohibit picketers from entering courthouses or blocking public sidewalks.  Such restrictions accommodate public convenience and promote social order by regulating traffic flow, preserving property interests, conserving the environment and protecting the administration of justice.  So long as they are content-neutral and reasonable, regulations of this kind do not offend the First Amendment.   The right to “peaceably assemble” does not mean that local governments cannot require demonstrators to obtain parade permits.  The “free exercise” clause does not immunize churches against reasonable ordinances limiting noise generated by singing, shouting and preaching.

Perhaps I am missing something, but I see no principled distinction between reasonable “time, place and manner” restrictions on First Amendment rights and laws or ordinances that bar firearms from schools, parks and college campuses.   Our elected representatives could decide to allow rock bands to play in residential neighborhoods at any hour of the day or night, and they could decide to allow elementary school teachers to keep handguns in their desks, but if they do either of those things they should not be heard to say that their decision is justified, much less mandated, by the First Amendment or by the Second.

A Very Funk-y Arrest

I have worked with, counseled and represented newspaper and television reporters and photographers for 50 years.

In all that time, I have never known a nicer or more professional reporter than Tim Funk, who covers religion and writes a “Faith and Values” column for The Charlotte Observer.

In all that time, I also don’t recall any representative of the North Carolina news media being arrested while covering a demonstration until last week, when Tim was taken into custody as he interviewed members of the clergy who were participating in a “Moral Monday” protest at the North Carolina General Assembly.

Even in 1963, when Chapel Hill was roiled by civil rights sit-ins and protests, the police readily distinguished between the people making the news and the people covering the news.  Reporters and photographers for The Daily Tar Heel and other news organizations waded into the demonstrators’ midst with no thought or concern about being arrested.

You can see the legislative police handcuffing Tim and hauling him off here: http://www.youtube.com/watch?v=1m4Tq-nrLoI.  He’s easy to spot, not only because he is the dumpy little guy in an Irish cap, but also because he’s scribbling in a reporter’s notebook and wearing his Observer credentials around his neck.

It’s not all that unusual for news people to be charged with obstruction or trespass at crime or accident scenes, but those are chaotic environments where reporters, photographers, police, fire fighters and emergency personnel alike operate under stress, adrenalin flows freely on all sides, and the definition of “too close” varies widely.  By contrast, the “Moral Monday” protests and arrests are as orchestrated as a Rockettes routine.  The video of Tim’s arrest makes it plain that anyone on the scene who didn’t understand that he was not a protester was either stupid or obtuse.

Most of the time, cooler heads ultimately prevail and the charges leveled against reporters and photographers are dismissed if it’s clear that they were just doing their jobs.  I expect (and hope) that’s what will happen with Tim.

Even if this unfortunate incident has no lasting legal consequences, however, its political consequences may linger.  According to a PPP poll published on June 17, 67% of North Carolina voters disapproved of Tim’s arrest.  Given the unprecedented nature of his arrest and the public’s distaste for it, legislative leaders and Governor McCrory could have shored up their standing with both journalists and the voters by urging Wake County District Attorney Colon Willoughby to drop the charges against Tim, but they apparently are too stubborn, or too tone deaf, to have grasped the opportunity.

The One First Amendment Book to Read If You Are Reading Only One

            Anthony Lewis, who died on March 25, wrote the book that I wish I had written.

            No, it isn’t Gideon’s Trumpet, his best-known book.  It’s Make No Law: The Sullivan Case and the First Amendment (Random House, 1991).

            Make No Law is a great book about the law precisely because it isn’t a lawyer’s book.  Rather, it’s a reporter’s and historian’s book in which Lewis lays out, in lucid and compelling language, two important and intertwined stories: the history of New York Times v. Sullivan, the most important libel case in U.S. history, and a succinct explanation of how modern First Amendment law developed under the influence of Oliver Wendell Holmes, Jr., Louis Brandeis, Hugo Black and other great Supreme Court justices.  Both stories are thoroughly readable because they are devoid of the flourishes, pomposity, verbosity and prolixity that we lawyers often associate – wrongly – with gravitas and erudition.

            In a New York Times book review, Robert Sack, a federal appeals court judge and author of a leading treatise on libel law, called Make No Law “a tour de force primer on the history of the First Amendment.”

            Over many years as an adjunct professor at Duke and UNC I assigned Make No Law, and sometimes gave copies of it, to dozens of law and public policy students, many of whom later thanked me and characterized it as the best book they had read during their academic careers.

            If you never read another book about the First Amendment, read this one.

Teach Content, Not Cursive

Owing to youthful bad luck, I am living proof that a person can achieve at least a modicum of success in life despite having no facility at cursive handwriting.

When I was in the first grade I broke my right arm in a fall.  One year later to the day, I did the same thing again.  During the many weeks that my arm was encased in an itchy plaster cast, I struggled to make numbers and letters with my left hand.   Afterward, my atrophied forearm, rigid wrist and stiffened fingers left me unable to copy competently the lovely letters and numbers printed on my handwriting exercise papers with my right hand.  My teachers checked the box for “Needs Improvement” and sent me home with notes asking my parents, both of whom wrote beautiful script, to have me practice my “penmanship.”  I declined, preferring instead to create and rely on the personalized amalgam of block and curved letters that I have used ever since.

The North Carolina General Assembly currently is considering “Back to Basics” legislation that would require our public schools to “provide instruction in cursive writing so that students create readable documents through legible cursive handwriting by the end of the fifth grade.”   If that had been the law in the 1950s I would never have gotten out of elementary school.

The fact that I, many of my fellow lawyers and almost all of the physicians I have known have been able to acquire advanced degrees and pass professional licensing exams suggests to me that cursive handwriting, like ballroom dancing, is a desirable skill, but not a particularly necessary one.  Moreover, its utility has steadily given way during my lifetime, first to typewriters and Dictaphonesand then to keyboards, all of which produce words faster and usually more clearly than pencils or pens.

What the legislature should be worrying about isn’t how students produce “readable documents,” but whether the documents they produce reflect critical thinking, analytical skills, rhetorical clarity and grammatical competence.   Rather than spending valuable time on handwriting, we should go “Back to Basics” by requiring elementary students to become familiar with gerunds, participles, adverbs and prepositional phrases.   Perhaps they could even be taught proper punctuation or the correct usages of “lie” and “lay.”

Freedom of expression is meaningless unless we have something cogent to say and the ability to say it in ways that others can understand, and neither of those attributes has anything to do with our handwriting skill, or lack of it.

POLYGAMY AND THE FIRST AMENDMENT

Author’s Note:  This article, which has since been modified slightly, was presented originally at a continuing legal education program sponsored by the University of North Carolina School of Law in 2008.

A confluence of legal and cultural trends – including such disparate influences as the HBO series “Big Love,” the Internet, the Supreme Court’s 2003 decision in Lawrence v. Texas, and Mitt Romney’s presidential campaign – are bringing polygamy out of the closet.  Members of “plural families,” all of whom look like typical suburbanites, openly discuss their lifestyle with Oprah and her studio audience.  A polygamist family is featured in a documentary film.  Internet sites such as www.polygamy.com and www.principlevoices.com give voice to polygamists and advocate for the lifestyle.  The state of Utah charges the leader of a polygamist sect with accessory to rape.  Children of polygamist unions stage a public demonstration to show they are just like other kids.  The New York Times reports that a woman and nine children killed in a Bronx house fire were members of a polygamist community whose cultural roots were in West Africa.

Experts estimate that although state statutes (and, in Utah, the state constitution) make polygamy illegal in every U.S. jurisdiction, 30,000 to 50,000 people practice polygamy in this country, although the exact number understandably is elusive.  In North Carolina, as in many states, the criminal code does not specifically reference polygamy; rather, the prohibition is accomplished by a ban on “bigamy.”  See G.S. §14-183, which makes it a Class I felony for a married person to marry a second person.

Many of the polygamists who have gone public have done so in order to advocate for the “decriminalization” of the practice.  They argue that the Supreme Court’s opinion in Lawrence v. Texas, 539 U.S. 558 (2003) provides support for their contention that sexual and living arrangements among and between consenting adults are among the fundamental liberties protected by the due process clause of the Fourteenth Amendment.  They point out that society currently tolerates or condones a wide array of family arrangements and lifestyles, including open cohabitation by unmarried persons and “serial polygamy” facilitated by liberal divorce laws.

Many – perhaps most – of the Americans who practice polygamy say they do so out of a conscientious desire to comply with sincerely-held religious beliefs.  Does this mean that the “free exercise” clause of the First Amendment protects them against prosecution for violating anti-polygamy and anti-bigamy laws?  As far is the law is concerned, the answer is an emphatic “no” and was settled by the Supreme Court more than 125 years ago.  As we shall see, however, the fact that an issue is settled constitutionally does not necessarily mean that it has been resolved once and for all culturally and philosophically.

Polygamy – A Brief Overview

For many Americans “polygamy” is synonymous with, or at least inextricably linked to, Mormonism.  The association is natural, because polygamy was a fundamental tenet of the Mormon Church from its founding in 1830 until the late 1880s, when the church officially repudiated the practice in order for Utah to gain statehood.  The church’s abandonment of the practice doctrinally did not eradicate it, however.  Mitt Romney’s great-grandfather, Miles Park Romney, married his fifth wife in 1897 – more than six years after the church’s hierarchy banned the practice – and polygamy continued to flourish among breakaway fundamentalist Mormon adherents, many of whose descendants live today in isolated rural communities in southern Utah and northern Arizona.

Although polygamy is associated primarily with Mormonism in the United States, where it is socially aberrant and universally illegal, it is practiced and accepted in a wide array of other countries and cultures.  According to Israeli anthropologist Joseph Ginat, who co-authored a leading academic treatise on the subject, polygamy is practiced openly in Jordan, Israel, Syria, Yemen, Iraq and Iran, as well as some of the Muslim nations of North Africa — including Egypt, Sudan, Morocco and  Algeria.  Plural marriages also are commonplace in other parts of Africa, including some countries where Christianity is flourishing.  (One of the more interesting sidelights of the controversy over sexuality currently roiling the international Anglican Community is a dispute between some Episcopal clergy in the United States who advocate for greater acceptance of gays and lesbians and the former Bishop of Kenya, who staunchly opposes an revision of the church’s views about same-sex relationships while simultaneously advocating for open-mindedness and pastoral care for Christians who live in polygamous marriages.)

Historically, polygamy was practiced and accepted by many cultures and religions.  The Bible does not condemn it.  Genesis says Abraham had at least three wives, and Deuteronomy includes instructions on how a man’s property should be divided among his sons born to different wives (Deut. 21:15).  David had several wives (2 Samuel 5:13) and Solomon, the champion Old Testament polygamist, had 700 – and 300 concubines (1 Kings 11:3).  According to the Encyclopedia of Islam, Muhammad had 10 wives and two concubines.  Experts on Native American culture say that polygamy was fairly widespread among American Indian tribes, which frequently included many more women than men owing to male deaths resulting from warfare and hunting.

Polygamy and Mormonism

Joseph Smith was a 24-year-old New York farmer when, in 1830, he founded the Church of Jesus Christ of Latter-Day Saints on the basis of “instructions” contained in a long-buried book, inscribed on gold plates, which he dug up on his farm after being guided to it by an angel.  Because Smith derived the new church’s principles primarily from his interpretation of the Old Testament, it is not surprising that his views about marriage and familial relationships were similar to ancient Israelite traditions.  Among other things, he concluded that polygamy was prescribed by God’s law, and he made it a central tenet of the LDS faith.   During the early years of the church the practice was hidden and, owing to the small number of Mormon adherents, attracted little attention, but after church leaders publicly embraced the doctrine in 1852 public opposition grew rapidly.  Clergy and newspaper editors vehemently decried polygamy as heretical, un-American and abusive to women, and urged that it be outlawed.  In 1856 the newly-created Republican Party’s presidential nominee, John C. Fremont, pledged to abolish the “twin relics of barbarism — slavery and polygamy.”

Public and Congressional antipathy toward Mormons became especially virulent in the wake of a violent 1857 episode that became known as the “Mountain Meadows Massacre.”  For reasons that remain obscure even today, a colony of Mormons brutally murdered 120 men, women and children from Arkansas who were passing through southwestern Utah en route to California.  The killings, which have been described as “the darkest deed of the nineteenth century,” were especially heinous because the Mormons, who had besieged the settlers’ campground for several days, lured their victims out of their camp under a white flag of truce, then systematically shot the men and bludgeoned the women and the children, sparing only a few infants and toddlers.  A web site detailing this grim episode and its aftermath is at http://www.law.umkc.edu/faculty/projects/ftrials/mountainmeadows/leetrial.html.

The first anti-polygamy law, the Morrill Anti-Bigamy Bill, was enacted by Congress in 1862 and signed into law by President Lincoln.  The law banned polygamy in all U.S. territories; annulled all laws enacted by Utah’s territorial government that “establish, support, maintain, shield or countenance polygamy” (including the statute incorporating the LDS church); and prohibited all religious and charitable organizations in the territories from owning property having a value greater than $50,000.  Statutes at Large, 37th Congress, Second Session, p. 501-02.  The law included a proviso that it was not to be construed as to interfere with “the right to worship God according to the dictates of conscience,” but only to “annul all acts and laws which establish, maintain, protect or countenance the practice of polygamy, evasively called spiritual marriage, however disguised by legal or ecclesiastical solemnities, sacraments, ceremonies, consecrations, or other contrivances.”  Id.

Ulysses S. Grant, who pledged to wipe out Mormon polygamy as a candidate, brought the full weight of the Morrill Bill to bear as president.  At his direction United States marshals rounded up hundreds of Mormons and charged them with violating the anti-bigamy law.  The church hierarchy selected George Reynolds, secretary to Brigham Young, to test the law.

Reynolds v. United States, (1878)

At Reynolds’ trial the government successfully challenged several potential jurors who acknowledged that they were or had been living in polygamy.  In response to the charge of bigamy, Reynolds did not deny that he was a party to a plural marriage.  He asked the court to instruct the jury that if they found, as he contended, that he had contracted multiple marriages pursuant to and in conformity with what he believed to be his religious duty, then they should find him not guilty on the grounds that he did not possess the requisite intent to violate the law.  The trial judge refused, ruling that if he deliberately married a second time while having still married to his first wife, intent was implied; therefore, the fact that he may not have intended to commit a crime was irrelevant.  Reynolds was convicted and sentenced to two years in prison and a $500 fine.  After his conviction was upheld by the Supreme Court for the Territory of Utah, Reynolds appealed to the Supreme Court of the United States, which ruled against him unanimously, holding that religious practices inimical to the public interest did not fall under the protection of the First Amendment.

The Court described the issue before it as “whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.”  Chief Justice Waites’ opinion began by acknowledging that this issue implicates the First Amendment:

Congress cannot pass a law for the government of the Territories which shall     prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition.

98 U.S., at 164.

After briefly but accurately summarizing Thomas Jefferson’s and James Madison’s views concerning the relationship between government and religion, and citing Jefferson’s analogy of a “wall of separation” between church and State as “an authoritative declaration of the scope and effect” of the First Amendment, Waite declared that “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.”  Id.  In his next sentence he immediately made it plain that the Court considered polygamy to be such a subversive practice:

Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.

Id. Turning again to the history of the First Amendment, Waite noted that in 1788, immediately after the Virginia Convention asked Congress to propose a Bill of Rights that would include a guarantee of religious freedom, the Virginia legislature made bigamy and polygamy crimes punishable by death.  98 U.S. at 165.  “From that day to this,” he wrote,

it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.

Id.  Noting that marriage is both “a sacred obligation” and “a civil contract,” and that contracts can be regulated for the benefit of society, Waite laid down the central holding of the case:

In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is, whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

98 U.S., at 166.

Finally, the Court considered whether the trial court had erred by instructing the jury that in reaching their verdict they should consider the consequences of polygamy to its “victims,” which the trial judge had characterized as “pure-minded women and innocent children.”  Waite concluded that the instruction was proper because Congress had made polygamy illegal owing to “the evil consequences that were supposed to flow from plural marriages.” 98 U.S., at 168.

Reynolds was the first occasion for the Supreme Court to construe and apply the First Amendment’s free exercise clause.  On January 8, 1979 The New York Times applauded the decision as a “great gain” in “the organized effort to crush out polygamy in Utah” and predicted that despite the difficulty of procuring evidence from persons who wished to perpetuate this “last of the twin relics of barbarism,” it cannot be doubted that “this degrading practice cannot be very long-lived.”

As happens, the Times was wrong.  Reynolds is still the law of the land, and polygamy is a criminal offense in every state, but a visit to the Times’ own web site turns up more than 100 articles about the subject published by the newspaper since 1988, many of which chronicle the continuing but thus far ineffective efforts of federal, state and local authorities to “crush out” polygamy in Utah and elsewhere.  Before turning to the current status of this perpetual struggle between religion and the law, however, let us consider other “polygamy cases” that arose in the western United States after Reynolds. 

Murphy v. Ramsey (1885)

Four years after the Supreme Court’s decision in Reynolds the Congress passed laws barring polygamists from seeking public office, voting, or serving on juries.  In Murphy v. Ramsey,114 U.S. 15 (1885) the Court upheld a lower court’s finding that a person was a polygamist if he had a plurality of wives, even if he had not cohabited with more than one of them since the anti-bigamy law was enacted.

Davis v. Beason, (1890)

Chief Justice Waite’s opinion for the Court in Reynolds concedes that the First Amendment protects religious beliefs but permits the government to prohibit anti-social conduct, even if it is religiously motivated.  It follows that the government cannot punish or discriminate against individuals who endorse or advocate on behalf of polygamy, but do not practice it.  Nevertheless, in Davis v. Beason, 133 U.S. 333 (1890), the Court reached the opposite result.  Davis v. Beason arose out of a statute enacted by the Territory of Idaho that required persons registering to vote to swear under oath that they were not members of any organization that “teaches, advises, counsels or encourages its members, devotees, or any other person, to commit the crime of bigamy or polygamy . . .”   Samuel D. Davis, a Mormon who took the oath, was convicted of swearing a false oath and fined $500.  Davis argued that the statute requiring the oath was unconstitutional because a citizen could only be punished or deprived of his rights if he engaged in a criminal act, not for his opinions.  Nevertheless, the Supreme Court affirmed his conviction.  Justice Field’s opinion for the Court treated the issues presented as though they were indistinguishable from the questions in Reynolds and seemed to assume that Davis’ membership in the Mormon church was sufficient to justify his conviction.  He wrote:

Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman, and to debase man. Few crimes are more pernicious to the best interests of society, and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counseling are themselves criminal, and proper subjects of punishment, as aiding and abetting crime are in all other cases.

133 U.S., at 341-42.

And,

It is assumed by counsel of the petitioner that, because no mode of worship can be established, or religious tenets enforced, in this country, therefore any form of worship may be followed, and any tenets, however destructive of society, may be held and advocated, if asserted to be a part of the religious doctrines of those advocating and practicing them. But nothing is further from the truth. While legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as ‘religion.’

Id., at 345.

Unlike Reynolds, which has never been overruled, Davis v. Beason was expressly repudiated and abrogated by Romer v. Evans, 517 U.S. 620 (1996).

Polygamy and Utah’s quest for statehood.

Public antipathy toward Mormons and polygamy, coupled with aggressive enforcement of the anti-bigamy statutes by Republican administrations, thwarted Utah’s aspirations for statehood during the period before and immediately after the Reynolds decision.  Between the end of the Civil War and 1890 nine states – Nebraska, Colorado, North Dakota, South Dakota, Montana, Washington, Idaho and Wyoming – were admitted to the union while the bills granting statehood to Utah were pigeonholed.  In the mid-1880s Mormon leaders began negotiating with President Grover Cleveland’s administration about easing the tensions.  Eventually they struck an arrangement with U.S. Solicitor General George Jenks whereby the Mormon Church would quietly support the inclusion of an anti-polygamy provision in Utah’s state constitution.  The church leaders apparently realized that it was preferable to have anti-polygamy laws enforced by locally-elected officials than by federal marshals.  Even though Jenks drafted the anti-polygamy provision and Utah’s voters ratified the constitution by a large majority, the statehood bill was again defeated by Congress because the Mormon leaders would not commit themselves firmly to eliminating polygamy.  Meanwhile, federal enforcement of the anti-polygamy laws continued.  According to official church history, between 1884 and 1893 approximately 1,000 Mormons were imprisoned for polygamy-related crimes in Utah, Arizona and Idaho.

Aided by a lobbying and public relations effort aimed at Congress and the nation’s newspapers, church and territorial leaders eventually persuaded key members of Benjamin Harrison’s administration, including Senator James G. Blaine of Maine, to adopt a more tolerant attitude toward Utah’s plea for statehood.  Blaine came to Utah’s and the church’s rescue in 1890 by using his influence to block passage of the Cullom-Struble Bill, which would have confiscated all LDS church property and disenfranchised all Mormons, whether polygamous or not.  Although the proposed legislation patently ran afoul of the First Amendment, the Mormon leadership feared that the Supreme Court’s decisions in the Reynolds, Murphy, Davis and other cases portended the total destruction of their church, so church president Wilford Woodruff issued a “Manifesto” declaring that the church would submit to the law of the land and use its influence to discourage its adherents from practicing plural marriage.   This dramatic alteration of official church doctrine brought about a relaxation in anti-Mormon, anti-Utah sentiment, and Utah became a state on January 4, 1896.  The statehood act provided that “the inhabitants of all that part of the area of the United States now constituting the Territory of Utah, as at present described, may become the State of Utah… [p]rovided, [t]hat plural or polygamous marriages are forever prohibited.”  Utah, Admission as a State, ch. 138, 28 Stat. 107 (1894).

Prosecution of polygamy in the modern era.

Although Reynolds putatively resolved the question whether polygamy was protected by the First Amendment, and Utah was admitted to statehood in 1896 on the condition that polygamy was “forever prohibited,” law enforcement and the courts have continued to wrestle with polygamy issues down to the present day.  In many instances these issues have arisen out of “indirect” prosecutions in which officials have eschewed use of anti-bigamy or anti-polygamy statutes in favor of criminal statutes of general application, such as statutes mandating child support and laws prohibiting child abuse, sexual exploitation of minors, and rape.

Fifty years after Utah joined the union the Supreme Court reviewed the convictions of six men, all of whom were members of a fundamentalist Mormon sect, for violation of the Mann Act, a federal statute that criminalized the transportation of women in interstate commerce “for the purpose of prostitution or debauchery, or for any other immoral purpose.”  18 U.S.C. §§ 2421-2424.  The defendants were charged with transporting their plural wives across state lines in violation of the law, which also was known as the “White Slave Trafficking Act.”  The validity of their convictions turned on whether the Court deemed polygamy to be within the Act’s definition of an “immoral purpose.”

The Court upheld the defendants’ convictions by a vote of 8-1.  Cleveland v. U.S., 329 U.S. 14 (1946).  The majority opinion was authored by Justice William O. Douglas, who is considered today as one of the Court’s most dedicated defenders of civil liberties.  Citing the Reynolds and Davis decisions, Douglas summarily dismissed polygamy as “a return to barbarism” and “a notorious example of promiscuity.”  Id.,at15-16.  With respect to the defendants’ First Amendment defense, the opinion said:

It is also urged that the requisite criminal intent was lacking since petitioners were motivated by a religious belief. That defense claims too much. If upheld, it would place beyond the law any act done under claim of religious sanction. But it has long been held that the fact that polygamy is supported by a religious creed affords no defense in a prosecution for bigamy. Reynolds v. United States, supra. Whether an act is immoral within the meaning of the statute is not to be determined by the accused’s concepts of morality. Congress has provided the standard. The offense is complete if the accused intended to perform, and did in fact perform, the act which the statute condemns, viz., the transportation of a woman for the purpose of making her his plural wife or cohabiting with her as such.

Id. at 20.

In July, 1953 Arizona law enforcement officials raided Short Creek, an isolated polygamous community of about 300 residents that straddled the Arizona-Utah border.  The families living on the Arizona side of the border were taken into custody and the fathers were prosecuted.  Following the raid Utah officials filed a neglect petition against Leonard Black, who was legally married to one woman and who openly maintained familial relations with two others, Vera Johnson and Lorna Johnson, both of whom he had “married” in extra-legal religious ceremonies.  Between the three women Black had fathered 26 living children; eight of them, whose mother was Black’s “second wife” Vera Johnson, were the subject of the Utah officials’ petition.

Although the juvenile court found no evidence that any of the children were destitute or without proper sustenance, clothing or medical care, it declared that Black and Johnson were rearing the children in “an immoral environment” and, because they practiced and advocated for plural marriage, had “knowingly failed and neglected to provide for said children the proper maintenance, care, training and education contemplated and required by both law and morals.”  In re Black, 283 P.2d 887, 891 (1955) (emphasis in original).  Because Black and Johnson had routinely flouted the anti-polygamy law and presented polygamy to their children as a legitimate and desirable life style, the court ordered the children removed from the home and placed in the custody of the Utah Department of Public Welfare.  Id., at 891-92.  The Supreme Court of Utah, relying on the Supreme Court’s decisions in Reynolds and Davis, rejected the defendants’ First Amendment defenses and affirmed the trial court’s decision.  The court also denigrated the sincerity of the defendants’ religious convictions, castigated them for their life style, and decried the “embarrassment” they had brought upon the State of  Utah.  Among other things the court said:

[The defendants] had, and for 20 years have had, a method convenient, easy, illegal and immoral; for two decades they have lived above the law and, so far as this record discloses, without prosecution of any kind except the charge against Leonard Black by the Arizona authorities immediately following the raid of July 24, 1953. They, after such ceremony as was used, if any, without license or benefit of clergy, and without calling on a civil officer authorized to perform the ceremony, proceeded to ‘multiply and replenish the earth.’ Marriage licenses were not for them; legal ceremonies were passé; they ignored every law established for the orderly behavior of decent people. Why should it be assumed that Leonard Black and Vera Johnson are the proper persons to have the custody and control of these children? Is it possible that the best interest of the children will be secured? Is it likely that these children will be saved to useful citizenship be being left with the appellants?

Id. at 908.  And,

They have not only failed to teach their children that polygamy and unlawful cohabitation are against the law and morals, but they have positively taught their children that the law of plural marriage and the practice of plural marriage was right and they have encouraged their children to teach, preach and practice it. Further these appellants have actually practiced plural marriage and have unlawfully cohabitated in the presence of these children. They have gone further than to advocate the correctness of plural marriage they have provided the horrible example to these children and have subjected the children to living with the system.

Id., at 909.  And,

The good name of this State and its people, committed to sustaining a high moral standard, must not be obliged to suffer because of the unsavory social life of appellants and others claiming the constitutional right under the guise of religious freedom to bring shame and embarrassment to the people of this state. It is against the public welfare to permit such conduct as appellants indulge in to justify the people of this great nation in referring to us as a people high in religious adherence but low in morals and law observance.

Id. at 910.

Although the State of Utah has relied primarily on criminal statutes other than its anti-bigamy law to prosecute polygamists in recent years, the state did attack polygamy head on in the case of Tom Green, who had the temerity to appear on national television shows with his nine “wives” between 1998 and 2001 to promote the polygamous life style, and to collaborate with the British producers of a film about polygamy that was shown at the New York International Documentary Film Festival in 2000.  Perhaps reflecting the embarrassment for Utah cited by the state’s supreme court in the Black case, the state’s attorney general sought to charge Green with bigamy.  Because Green had serially obtained divorces from each of the four women whom he had married legally, however, and had “married” the others in unlicensed ceremonies, the state first had to convince the courts to declare that Green was a party to a valid common law marriage with one of the women, Linda Kunz.  Upon obtaining the declaration that “legalized” Green’s marriage to Kunz, the state promptly charged Green with bigamy.  Green’s 2001 conviction was affirmed by the Supreme Court of Utah, which not only looked to the Reynolds and Cleveland characterizations of polygamy as immoral but also cited some public policy grounds for its decision. The court noted that prohibiting bigamy implicates the state’s interest in preventing marriage fraud and the “misuse of government benefits associated with marital status.”  State v. Green, 99 P.3d 820, 830 (Utah, 2004).  “Most importantly,” the court said,

Utah’s bigamy statute serves the State’s interest in protecting vulnerable individuals from exploitation and abuse. The practice of polygamy, in particular, often coincides with crimes targeting women and children. Crimes not unusually attendant to the practice of polygamy include incest, sexual assault, statutory rape, and failure to pay child support.

Id.

In 2005 the Utah court upheld a second conviction of Green, this time for child rape.  In that case the victim was Linda Kunz, who was 13 years old when she bore Green’s child in 1986.  See, State v. Green,108 P.3d 710 (Utah, 2005).  A law professor who criticized Green’s bigamy conviction as “hypocritical” on the grounds that “banning polygamy is no more a solution to child abuse than banning marriage would be a solution to spousal abuse” praised the rape conviction, saying “if Green had relations with [a 13-year-old] he is a pedophile and was properly prosecuted for a sex crime – just as a person in a monogamous marriage would be prosecuted.”  Jonathan Turley, “Polygamy laws expose our own hypocrisy,” USA Today, October 3, 2004.  Because of the court decree obtained by the state Green, who was freed from prison in August, 2007, is still legally married to Ms. Kunz, who refused to testify against him in the rape case.

State v. Jeffs, (2007)

Utah’s most recent prosecutorial attack on polygamy also took the form of a statutory rape charge.  In November, 2007 Warren Jeffs, the leader of the 10,000-member Fundamentalist Church of Christ of Latter-Day Saints, was convicted of two counts of acting as an accomplice to rape for forcing a 14-year-old girl to “spiritually” marry her 19-year-old cousin.  Jeffs, whose trial drew widespread attention from the news media, was sentenced to 10 years in prison.

Where does polygamy go from here?

The convictions of Green and Jeffs aside, Utah Attorney General Mark Shurtleff has acknowledged that polygamy presents thorny issues for law enforcement officials in Utah and elsewhere.  On the one hand, many people vehemently decry the practice as morally abhorrent, dangerous to children, and demeaning to women.  At the same time a significant number of men and women find plural marriages so satisfactory, or believe them to be so necessary to their faith and personal salvation, that they engage in them despite the risks of prosecution and the certainty of opprobrium on the part of mainstream society.  In recognition of this cultural gulf Attorney General Shurtleff has announced that his office will treat bigamy among consenting adults like fornication and adultery, which are still crimes under Utah law.  “This is a big group of people,” he told The Washington Post.  “They are not going away.  You can’t incarcerate them all. You can’t drive them out of the state.  So what do we do about it?”

What Shurtleff has decided to do is to prosecute polygamists for violations of other laws, especially those that protect children and women.  In addition to pursuing charges of rape, domestic violence, and child abuse he also has vowed to go after fraudulent use of welfare and other government benefits and to seek court orders dissolving communal property arrangements that he views as exploitive and illegal.

Meanwhile, polygamists and their advocates continue to speak out for de-criminalization and tolerance.  One of their long-range goals is to persuade the Supreme Court to overrule Reynolds, but given the Court’s almost unbridled discretion concerning the cases it chooses to take, and what is known about the personal philosophies of the current justices, the constitutional status of polygamy seems almost certain to remain “settled” for the foreseeable future, even as its cultural and social standing continue to generate controversy.

Precursors of the First Amendment: the Fight for Disestablishment of the Episcopal Church in Colonial Virginia

© 2013
As citizens of the United States in the 21st Century, we are prone to take our freedom of religion for granted. To most of us, the fact that every American is free to adhere to whatever religious creed may appeal to his or her conscience — or to none — seems to us as natural as breathing. If Sheriff Harrison were to announce that no traveling evangelist could hold a revival meeting in Wake County without his approval, or a member of the North Carolina General Assembly were to introduce a bill to tax everyone in order to pay the salaries of Christian ministers, most citizens would find both proposals jarring and unthinkable, and judges would promptly declare them unconstitutional.

It was not always thus. Although our high school history books told us – truthfully – that the followers of many sects sought religious refuge in colonial America, and that some influential leaders, such as William Penn in Pennsylvania and Roger Williams in Rhode Island, promoted religious pluralism and tolerance, established churches were the rule in the English colonies. Massachusetts and Connecticut were “officially” Congregationalist, and the Church of England was established in all of the Southern colonies (although Samuel Eliot Morison says that it did not “enjoy great influence” in any of them). The story of how we moved from there to here — how official churches were “disestablished” in favor of the religious pluralism so familiar to us today — is both fascinating and complex.

With the advantage of two centuries of hindsight, we are inclined to see religious freedom as an important and inevitable by-product of the era of the American Revolution, which Lafayette, writing in his old age, called “the era of declarations of rights,” and which he regarded as “the beginning of a new social order for the entire world.” The decline of “official” churches also can be seen as an almost inevitable consequence of multi-cultural immigration, much of which was stimulated by religious persecution and discrimination. As early as 1763, “there were already enough Irish in New York to celebrate St. Patrick’s Day, enough Jews to support a synagogue, enough Scots to support a Presbyterian church, and enough Germans to maintain four churches with services in their language.” (Morison 176) At the time of the Revolution, perhaps two-thirds of Virginia’s citizens were dissenters from the established Anglican Church. (Peterson 114) Disestablishment also appears in retrospect as a natural consequence of the Enlightenment, the optimistic eighteenth-century philosophy that proclaimed the perfectibility of man through reason and experience, as well as a thoroughly understandable intellectual reaction to the excesses of the British crown, which was linked by law and tradition to the Church of England.

Whatever its causes and sources, this manifestation of the new social order did not occur overnight. Like many cultural and social changes, disestablishment was a struggle in which the old order gradually gave way to the new. The story of how that struggle played out in Virginia between 1776 and 1785 is important to our understanding of how religious liberty eventually won the day because Virginia, the most populous colony, was a bellwether; the outcome of the disestablishment debate among the commonwealth’s most influential thinkers greatly influenced its resolution in the other colonies, and eventually in the new nation they would form. It also is a fascinating and dramatic story, because the key participants were four of the most brilliant and celebrated figures of the Revolutionary era — James Madison, Thomas Jefferson, George Mason and Patrick Henry.
Before setting the scene, let us briefly summarize what history tells us about the religious beliefs and attitudes of these four famous Founders.

Thomas Jefferson was a religious skeptic who was often accused during his lifetime of being an atheist. Historians often characterize him as a Unitarian, but while his theology was very much Unitarian in spirit, he never joined a Unitarian church, possibly because there were none near his home in Virginia during his lifetime. Moreover, the Unitarians were not formally organized into a sect until 1825, the year before his death. However, Jefferson embraced the theology of Joseph Priestly, who is widely viewed as the founder of Unitarianism, and regularly attended Priestly’s church in Philadelphia when he was nearby. Jefferson remained a nominal member of the Episcopal Church, but removed himself from the list of those eligible to serve as godparents because he could not unreservedly espouse belief in the Trinity.

When Jefferson ran for President in 1800, many clergymen told their congregations that a vote for him was a vote against Christianity, and that if he were elected they would have to hide their Bibles in their wells. (Brodie 431.)  During his presidency he compiled a pamphlet entitled Syllabus of an Estimate on the Doctrines of Jesus, Compared with Those of Others, in which he characterized Jesus’ moral system as “the most perfect and sublime that has ever been taught by man” but made it plain that he did not accept Jesus as divine. In later life he compiled a personal, expurgated New Testament from which he excluded all references to the supernatural, including the Virgin Birth, the miracles and the Resurrection, leaving in only “the matter which is evidently his, and which is as easily distinguishable as diamonds in a dunghill.” The resulting pamphlet was published after his death as The Jefferson Bible.

Both Jefferson’s personal attitude toward religion and his formulation of the proper relationship between religion and government were grounded in the rationalist philosophy of the Enlightenment, especially the views of Francis Bacon, Isaac Newton and John Locke. The dominant spirit of the Enlightenment was skepticism toward all orthodoxy, unbridled enthusiasm for the pursuit of knowledge, and optimism that free inquiry would lead men to discern the truths inherent in the nature of the universe. Jefferson believed that an alliance between government and religion was unnatural, because religion is a private matter wholly dependent upon internal persuasions and personal conscience. Men and women, Jefferson said, are answerable for their religious beliefs only to God. In his Notes on Virginia he summed up his views in pithy language: “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods or no god. It neither picks my pocket, nor breaks my leg.”

Jefferson’s avowed disinterest in the religious views of his fellow men did not prevent his holding a lifelong, deep-seated antipathy toward the clergy — especially the Anglican clergy. His biographer Fawn Brodie attributes Jefferson’s hostility to preachers to his experiences at ages 14 and 15, when his tutor was James Maury, a self-righteous and bigoted Anglican priest who deprecated Presbyterians and Baptists as “dupes and deceivers,” and who considered Indians to be heathen barbarians. Whatever its source, Jefferson’s hatred for the clergy put destruction of the power of the Anglican Church at the top of his personal priorities. As Ms. Brodie says, “No other statesman of his time would match Jefferson in his hatred of the established faith.” (Brodie 50) During the election of 1800, he refused to curry favor with the clergy, pointing out to Benjamin Rush that both the Congregationalist and Episcopal churches still entertained hopes of being named the established church of the United States. Each knew that his election “threatens abortion to their hopes,” he wrote, “and they believe rightly: for I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.” (Brodie 432) (The personal oath that Jefferson described to Rush is now inscribed in the rotunda of his memorial in Washington, D.C.) In 1816, when he was 73, Jefferson wrote to a friend, “I am not afraid of the priests. They have tried upon me all their various batteries, of pious whining, hypocritical canting, lying and slandering, without being able to give me one moment of pain.” (Brodie 499)

James Madison was much less forthcoming about his religious beliefs than his close friend Jefferson. He was reared as an Anglican, and his early childhood teachers, like Jefferson’s, were Anglican clergymen, who often supplemented their meager salaries in colonial times by tutoring the children of influential parishioners. Indeed, “[d]own through his graduation from college every one of Madison’s teachers, as far as we know, was either a clergyman or a devoutly orthodox Christian layman.” (Ketcham 46) From ages 11 to 16 Madison attended a boarding school run by Donald Robertson, a Scottish-born minister and schoolmaster. Then he studied for two years at home under the Revered Thomas Martin, an Anglican rector who lived in the Madison household as a “family teacher.” Martin, whose brother Alexander later served as governor and United States Senator in North Carolina, was from a Scots-Irish family and had graduated from the Presbyterian-dominated College of New Jersey (now Princeton) in 1762. His influence presumably was critical to Madison’s decision to attend Princeton, although Madison later wrote that he avoided William and Mary, the expected choice of the Virginia gentry, because “the climate at [Williamsburg] is regarded as unfavorable to the health of persons from the mountainous region.” (Ketcham 23) Although Williamsburg was known then (and now) for its “noisome vapors,” the unsuitable climate at William and Mary also may have included the college’s reputation as a party school with lax academic standards.

Madison wrote far less about his religious views than his close friend Jefferson, perhaps because he was reserved and less inclined than Jefferson to pronounce judgments, or perhaps because his scholarly, analytical mind never settled firmly on a personal creed.  Ralph Ketcham characterizes Madison as “a rather passive believer” who accepted many of the basic tenets of Christian thought, such as the infinite worth of the human soul and the idea that each person was responsible for cultivating a proper relationship with God. It is hardly surprising that the framework of Madison’s personal philosophy would rest on Christian bedrock, given that virtually all of his teachers were clergymen. Yet Ketcham says that shortly after graduating from Princeton “Madison seems simply to have dropped his interest in doctrinal questions, troubling, so far as we know, neither to reject nor to reaffirm his religious tenets thereafter.”• (Ketcham 56) “Though not inclined to religious speculations,” Ketcham says, “Madison adhered to a calm faith in a moral, orderly universe presided over by a God beyond the limited capacity of man to conceive or understand.” (Ketchum 667) “It seems clear,” Ketcham writes, “that he never embraced fervently nor rejected utterly the Christian base of his education. He accepted its tenets generally and formed his outlook on life within its world view.” (Ketcham 47) Whatever he believed, Madison neither disparaged the beliefs of others nor sought to impose his own on anyone else.

Although Madison was reticent about his own religious views, he was vocal, and even vociferous, in the cause of religious freedom from early adulthood to the end of his life. In a letter to his Princeton classmate William Bradford dated January, 1774, when Madison was 23, Madison lamented the prosecution of Baptist ministers in nearby Culpeper County: “That diabolical Hell-conceived principle of persecution rages among some,” he wrote, “and to their eternal infamy the clergy can furnish their quota of imps for such business. This vexes me the most of anything whatever. There are at this time in the adjacent county not less than 5 or 6 well-meaning men in [jail] for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear talk or think of anything relative to this matter, for I have squabbled and scolded, abused and ridiculed so long about it, to so little purpose, that I am without common patience. So I leave you to pity me and pray for Liberty of Conscience to revive among us . . .”

Madison’s ardor can be traced directly to his experience at Princeton. Of Madison’s many Christian teachers, the most influential clearly was John Witherspoon, the Scottish-born Presbyterian minister who was president of the college. Although orthodox in his own beliefs, Witherspoon encouraged intellectual inquiry and defended every person’s “right to private judgment in matters of opinion.” (Ketcham 43)  Madison so admired Witherspoon that he stayed on in Princeton for six months after his graduation in order to study under him.

Patrick Henry not only came from much more modest circumstances than Jefferson, Madison or Mason; his religious training was both more and less traditional than any of theirs. His father, John Henry, was a pillar of the Anglican Church and “a staunch defender of every aspect of the church establishment, including the character of the parish rector, his brother Patrick,” for whom his son was named. (Mayer 34) His mother, on the other hand, was caught up in “the Great Awakening” — the evangelical fervor that raced through the colonies around the time of Patrick Henry’s birth in 1736. She became an abstemious Presbyterian who “set herself against the drinking, gambling, and dancing that comprised her husband’s chief diversions and the stuff of gentry political life.” (Mayer 39) She dragged young Patrick to revivalist “New Light” services conducted by the Revered Samuel Davies, a renowned preacher whose flowing, emotional sermons contrasted sharply with the dull, sanctimonious homilies read by the Anglican clergy “in velvet tones perfectly suited to the gentry’s own complacency.” (Mayer 34) Patrick’s mother not only made him listen to Davies’ sermons: on the way home in the family carriage she would make him repeat their substance back to her.

The effects of young Patrick’s dual religious upbringing can be seen throughout his life. On the one hand, he never left the Episcopal Church, and he emulated his father’s genteel social behavior; as a lawyer, however, he developed a powerful and decidedly non-traditional style of courtroom oratory that clearly reflected Davies’ influence, and which eventually made him the most riveting political speaker of his extraordinary political era. He also adopted his mother’s disdain for fashionable dress, fine furnishings and liquor. Throughout his life he spoke openly of his religious faith, and late in life he became a dedicated student of the Bible.

Of the four men at the vortex of colonial Virginia’s attempt to come to grips with the issue of religious liberty, George Mason held the most orthodox and traditional religious views. A wealthy planter and life-long Anglican who attended services faithfully, served for many years as a member of his parish vestry, and never by word or action exhibited any doubt concerning the tenets of his church, he seems an unlikely progenitor of the disestablishment movement. Yet, as we shall see, his authorship of the Virginia Declaration of Rights set in motion a chain of events that culminated in the First Amendment.

The personal relationships among and between these four famous men also are worth mentioning. Jefferson and Madison, who apparently met in 1776 as fellow members of the Virginia House of Delegates (Koch 3), were warm and lifelong friends thereafter, and neither can be understood apart from their regular and “gravely formal” written correspondence, much of which was conducted in their private code, and their frequent visits back and forth between Jefferson’s home at Monticello and Madison’s family seat 23 miles away at Montpelier, in Orange County.

When Jefferson was 16, he encountered Patrick Henry, who was seven years older, playing the fiddle, dancing and charming the guests at a Christmas party in Hanover County. Although Jefferson thought Henry somewhat coarse, he initially admired both Henry’s gregariousness and his eloquence, writing of one of Henry’s speeches, “He appeared to me to speak as Homer wrote.” (Brodie 24) Eventually, however, the two became bitter enemies after Henry instigated a legislative inquiry into Jefferson’s performance as governor of Virginia during the Revolutionary War.

Madison’s relationship with Henry included family ties; one of his second cousins married Henry’s sister Susannah, and Dolley Madison’s mother was Henry’s cousin. (Ketcham 5, 376-77) Although Madison did not evince open hatred of Henry, as Jefferson did (Jefferson once sent a coded letter to Madison urging him to “devoutly pray” for Henry’s death), Madison and Henry parted political company shortly after the Revolution and disagreed vehemently about ratification of the Constitution and almost every important public issue thereafter.

Mason, the eldest and most patrician of the four statesmen, was prone to be gruff and to brook no nonsense, but his brilliance, industry and pragmatic acumen earned the profound respect of Jefferson, Madison and Henry, despite his tendency to shift his alliances among them depending on the particular controversy at hand.

*   *   *   *   *   *   *   *   *   *

In May, 1776 delegates to the Virginia Convention gathered in Williamsburg to formulate a replacement for the defunct British colonial government. Henry, Madison and Mason were present; Jefferson was not, although he and other delegates to the Continental Congress in Philadelphia sent proposals and suggestions. Both Henry and Madison were appointed to the large committee named to draft the convention documents, but Mason, who was already viewed as the rebellious colony’s most knowledgeable citizen with respect to governmental affairs, dominated the proceedings. His draft Declaration of Rights became the centerpiece of the convention’s discussions.

Mason’s draft included an article on religious beliefs stating that because religion “can be directed only by reason and conviction . . . all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience , unpunished and unrestrained by the magistrate unless, under color of religion, any man disturb the peace, the happiness , or safety of society.”

Mason’s language, which undoubtedly reflected the influence of John Locke’s Letter Concerning Toleration, did not satisfy Madison; in his view, “tolerance” implied the dispensation of a privilege that was susceptible to being withheld. Interlining his copy of the proposal, Madison struck out Mason’s “toleration” language and rewrote it to read that “all men are equally entitled to the full and free exercise of religion according to the dictates of Conscience; and therefore that no man or class of man ought, on account of religion, to be invested with peculiar emoluments or privileges.”

Presumably because he was one of the youngest and least known of the delegates, and perhaps because he possessed “a shy, retiring manner and a weak voice” (Mayer 303), Madison persuaded Henry to introduce his proposed amendment. Even so, it was defeated, because many delegates interpreted his second clause as tantamount to disestablishing the Anglican Church. Madison thereupon proposed another amendment declaring that “All men are equally entitled to enjoy the free exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless the preservation of equal liberty and the existence of the state are manifestly endangered.”

As eventually adopted by the convention, Article 16 of the Virginia Declaration of Rights includes Madison’s language recognizing freedom of religion as a right and omits the clause referring to government authority:

“That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love and charity towards each other.”

Historians note that although Madison’s wording change apparently did not seem momentous to the convention (Banning 86-87; Ketcham 73), it had enormous implications. Professor Lance Banning says that while the failure of Madison’s first proposal left the establishment issue unresolved, “the logic of his second still demanded equal treatment for competing faiths. . . In its final phrasing Article 16 erected an ideal that no society had every written into law and spurred the commonwealth at once toward its achievement.” (Banning 86) Ketcham agrees. By converting religious nonconformity from something merely to be “tolerated” into a right exercisable according to one’s own conscience, “Madison had made possible complete liberty of belief or unbelief, and the utter separation of church and state.” (Ketcham 73)

After the Virginia convention adjourned on July 5, dissenters quickly seized on Article 16 to call for formal disestablishment of the Anglican Church. By the time the Virginia Assembly convened in October, Baptists and Presbyterians had submitted petitions (one of which contained almost 10,000 names) asking the Assembly to free them from “a long night of Ecclesiastical bondage.” They requested that “all Church establishments be pulled down, and every tax upon conscience and private judgment be abolished” in order that Virginia might become “an asylum for free inquiry, knowledge, and the virtuous of every denomination.”

Madison apparently met Thomas Jefferson for the first time when both arrived in Williamsburg as members of the House of Delegates in the autumn of 1776. Jefferson, who had been busy with the Continental Congress in the spring, promptly took up the fight for formal disestablishment and Madison, who served on the Committee on Religion, became his ally.

In a November speech to the House of Delegates, Jefferson outlined his views concerning the proper relationship between government and religion. According to his notes, he began with an historical overview of the evils of religious establishments. He noted that in Virginia church attendance was compulsory and that heresy was punishable by death and denial of the Trinity by three years’ imprisonment. The fact that these laws were not enforced, he said, did not remove their stigma. He also decried the ongoing persecution of Baptist ministers, and the fact that dissenters were taxed to support the Anglican Church. Jefferson also argued for change on political, as well as philosophical, grounds. How, he asked, could nonconformists be expected to support a government that discriminated against them on behalf of a church associated with the oppressive British government?

Jefferson’s and Madison’s efforts on behalf of disestablishment met with limited success. The issue was so controversial that it engendered 10 days of fractious debate by the entire Assembly. Eventually a series of compromises — proposed by George Mason — were adopted. The Assembly revoked all parliamentary statutes concerning religion, exempted dissenters from religious taxes, and suspended government payments to the clergy for a year. At the same time, the government retained the power to license ministers, Anglican clergy alone were authorized to perform legal marriage ceremonies, and the parishes of the established church continued to perform several civil functions.

Between 1776 and 1784 — a period in which Madison did not serve in the Assembly — religious issues were not prominent in Virginia. Although Jefferson served in the Assembly until his election as governor in 1779, the year he introduced his famous Statute for Establishing Religious Freedom, the colony was preoccupied with the war against Britain. Except for repeal of the suspended law providing salaries for the Episcopal clergy, the legislature passed no major bills relating to religion during the period.

Freedom of religion returned to the Assembly’s agenda in 1784, the year that Madison, who had been serving as a member of the Continental Congress, returned as a member. Mason and Henry also were present, but Jefferson had embarked for Paris as Minister to France; accordingly, he participated vicariously in the remarkable events that unfolded, primarily through regular but painfully slow correspondence with Madison.

Two controversial and interrelated religious issues confronted the 1784 Virginia Assembly. Supporters of the Anglican Church, which had been renamed as the Protestant Episcopal Church, recognized that tax support for religion, which they favored, was becoming increasingly problematical, but they put greater hope in having the church incorporated by the Assembly, a move that would confirm its title to enormous tracts of land assigned to the church during the colonial period. The Baptists and Presbyterians found this idea abhorrent, arguing that it would invest the Episcopal Church with property that conceptually belonged to everyone, but they had different opinions about what the Assembly should do. The Baptists wanted government to eschew all involvement with religion, but many Presbyterians preferred a plural establishment whereby religious taxes would be distributed proportionately among the various Protestant denominations. Madison thought both proposals “obnoxious.”

Patrick Henry, who like most of his contemporaries believed that virtue could not exist without religion, supported the Presbyterian position as being in the best interests of the state. With the assistance of John Blair Smith, a Presbyterian clergyman who had founded Hampden-Sydney College (and who, like Madison, had studied at Princeton under John Witherspoon), Henry drafted a resolution that called for both “the inalienable rights of conscience” and “an equal share of the protection and favor of government to all denominations of Christians.” (Mayer 360) He proposed that the Assembly draft legislation imposing “a moderate tax or contribution, annually, for the support of the Christian religion . . .”   The motion passed, and Henry himself was appointed to head the drafting committee, which produced a bill imposing a “general assessment,” the proceeds of which would be distributed among all “teachers of the Christian religion.”   In an effort to disarm Madison, Mason and other opponents, Henry’s draft permitted citizens who did not want to register their affiliation with a particular denomination to allocate their taxes to secular institutions of learning. Meanwhile, the House passed the Episcopal incorporation act; Madison reversed his earlier opposition and voted for it in the hope that its passage would cool the Episcopalians’ ardor for Henry’s general assessment.

While Henry’s religious assessments bill was pending, Madison and his supporters helped to maneuver him out of the Assembly and into the governorship. On November 17, Henry accepted and went home to Southside Virginia to prepare his family for the move to Richmond.  On Christmas Eve, eight delegates who had supported the incorporation bill changed sides and voted with Madison to postpone final consideration of the assessment bill until November, 1785 so that the measure could be circulated for public consideration, ”that the sense of the people might be better called forth.”(Madison to George Mason, July 14, 1826.)

As a practical matter, the delay engineered by Madison probably would have caused Henry’s religious assessment bill to die in any event, but Madison insured its defeat — and added immeasurably to the philosophical underpinnings of religious liberty — by taking advantage of the hiatus to draft one of the most remarkable and influential documents in American history: his “Memorial and Remonstrance Against Religious Assessments.”

Madison drafted the Memorial and Remonstrance because George Mason and other opponents of Henry’s assessment bill thought a petition outlining the arguments against the bill should be drawn up and circulated for public signatures, and that Madison was the best person to draft such a document. Mason apparently paid to have Madison’s draft printed and distributed. The tactic was entirely successful: over the next twelve months Madison’s petition and others garnered thousands of signatures, and when the Assembly convened in 1785 Henry’s bill was easily defeated. A few months later Madison completed the rout of the establishment forces by successfully arguing for the passage of Jefferson’s Statute of Religious Freedom. We can only imagine Madison’s pleasure in writing the good news to Jefferson in Paris, exulting that its passage meant that Virginia had “extinguished forever the ambitious hope of making laws for the human mind.” (Koch 30) Jefferson’s own delight also must have been extreme, because he later decreed that his grave marker at Monticello would memorialize him only as “Author of the Declaration of Independence, Founder of the University of Virginia, and Author of the Virginia Bill of Religious Liberty.”

Madison’s Remonstrance systematically posits fifteen numbered and rather eclectic points in opposition to the clergy tax. If Madison’s arguments were rendered in the “bullets” typical of a Power Point™ presentation, they might read as follows:

1. As an “unalienable” and fundamental natural right, religion is a matter between man and God, and therefore is not subject to civil authority.
2. Since religion is not subservient to government, it cannot be subservient to the legislature, which is a government institution.
3. A clergy tax may seem innocuous, but it is the first step on a slippery slope that ends in the loss of liberty.
4. If all men are truly equal, a religious tax discriminates against non-believers.
5. Anyone who thinks that government officials are competent to judge matters of religious truth is arrogant or stupid, or both.
6. Religion does not need the support of human laws; to the contrary, it has flourished despite opposition from them; God will take care of religion without our help.
7. Government involvement actually injures religion because it leads to “pride and indolence in the Clergy, ignorance and servility in the laity, and in both, superstition, bigotry and persecution.”•
8. A just government can exist without a religious establishment.
9. A religious tax is unfaithful to America’s heritage as a place of religious asylum and refuge.
10. Citizens offended by the clergy tax may elect to leave Virginia.
11. The tax will encourage sectarian strife and discord.
12. A religious tax will discourage non-believers from coming to Virginia, where they might hear and receive the message of Christian salvation.
13. Like other unpopular measures, the tax will promote disrespect for the law.
14. There is no evidence that the people want this tax.
15. The concept of the tax is inimical to the freedom of conscience guaranteed by the Virginia Declaration of Rights.

These cryptic renderings of Madison’s arguments border on rhetorical insult, because the persuasiveness and longevity of the Remonstrance rests on its eloquence as well as its substance. Although most Americans have never heard of it, it deserves to be read, re-read, and studied by anyone who seriously undertakes to understand what the Founders intended by the First Amendment’s decree that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .”

Fortunately, many judges appreciate that the study and application of Constitutional Law requires, in the words of the North Carolina Constitution, “a frequent recurrence to fundamental principles,” including the principles laid out by Madison in his remarkable document.  In furtherance of this maxim, courts often look to Madison’s Remonstrance: it has been cited in dozens of state and federal cases involving the relationship between church and state, and Justice Hugo Black’s opinion for the Supreme Court of the United States in Engel v. Vitale — the case that prohibits government officials from prescribing prayers to be said in public schools — cites it no fewer than five times. Perhaps the most lasting and significant effect of the Remonstrance, however, is that it established Madison as the Founder whose views concerning religious freedom were the most respected and set him on the road that led eventually to his authorship of the First Amendment and the rest of the Bill of Rights.

But that is another story.

References:

        James Madison: A Biography, by Ralph Ketcham. The University Press of Virginia, 1990.

        Jefferson and Madison: The Great Collaboration, by Adrienne Koch. Alfred A. Knopf, 1950.

Thomas Jefferson: An Intimate History, by Fawn M. Brodie.  W.W. Norton & Co., Inc. 1974

The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic, by Lance   Banning.  Cornell University Press, 1995.

A Son of Thunder: Patrick Henry and the American Republic, by Henry Mayer.  University of Virginia Press, 1992.

The Oxford History of the American People, by Samuel Eliot Morison.  Oxford University
Press, 1965.