« PreviousContinue »
an oath or affirmation shall be such as shall be most consistent with, and binding upon, the conscience of the person to whom such oath or affirmation may be administered.” Like provisions are found in the constitutions or statutes of other States.
Some of the State constitutions expressly prohibit the appropriation of any public funds or property for religious or sectarian uses. Thus the constitution of Illinois (VIII., 3) says: "Neither the general assembly, nor any county, city, town, township, school district, or other public corporation, shall ever make any appropriation or pay from any public fund whatever, anything in aid of any church or sectarian purpose, or to help support or sustain any school, academy, seminary, college, university, or other literary or scientific institution controlled by any church or sectarian denomination whatever; nor shall any grant or donation of land, money, or other personal property ever be made by the State or any such public corporation to any church or for any sectarian purpose.” The constitution of Missouri (IX., 10) contains a similar provision. The constitution of Indiana (I., 6) declares that “no money shall be drawn from the treasury for the benefit of any religious or theological institution.” The constitution of Oregon (I., 5) provides that "no money shall be drawn from the treasury for the benefit of any religious or theological institution, nor shall any money be appropriated for the pay
ment of any religious service in either house of the legislative assembly.” The constitution of Michigan (IV., 40) declares that “no money shall be appropriated or drawn from the treasury for the benefit of any religious sect or society, theological or religious seminary, nor shall property belonging to the State be appropriated for any such purposes." The constitution of Minnesota (I., 16) and that of Wisconsin. (I., 18) contain a similar provision.
Looking, then, at these various constitutional provisions as a whole, and as indicating the general policy of the American States in regard to religion, Judge Cooley, in his “ Constitutional Limitations" (chapter xiii.), says that "those things which are not lawful under any of the American constitutions may be stated thus":
I. “Any law respecting an establishment of religion.” 2. "Compulsory support, by taxation or otherwise, of religion.” 3. “Compulsory attendance upon religious worship.” 4.“ Restraints upon the free exercise of religion according to the dictates of the conscience.” 5. “Restraints upon the expression of religious belief.”
“These," he adds, "are the prohibitions which in some form of words are to be found in the American constitutions and which secure freedom of conscience and of religious worship. No man in religious matters is to be subjected to the censorship of the State; 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."
He also says that “it is not toleration which is established in our system, but religious equality.” The exceptions to this principle referred to and illustrated by citations in the commencement of this article he treats as exceptions not often put into practice and by no means representing the general character of our American State constitutions. They are, rather, the relics of ideas once prevalent, but now for the most part discarded in this country. They are, moreover, generally found in the older constitutions, and not in those of more recent date. The American people have outgrown the doctrine of religious tests and that of taxation for religious purposes. The tendency of public thought has been toward a complete severance of Church and State.
Mr. John Norton Pomeroy, in his “ Introduction to Municipal Law” (p. 292), states as follows, the general theory in regard to religion on which our national and State constitutions are built:
“The theory of our national and State constitutions is that the State, as an organic body, has nothing whatever to do with religion, except to protect the individuals in whatever belief and worship they may adopt; that religion is entirely a matter between each man and his God; that the State, as separated from the individuals who compose it, has no existence except in a figure; and that to predicate religious responsibilities of this abstraction is an absurdity. Whatever, then, the State does, whatever laws it makes touching religious subjects, are done and made not because the State is responsible, but simply that the people may be secure in the enjoyment of their own religious preferences. Public labor is forbidden by law on Sunday, not because the State, as such, respects the sacredness of the day or attempts to enforce its observance; but because a large portion of its worthy citizens do regard the day as sacred and employ it for public and private worship, and have a right to be protected in the quiet use of the time for these purposes.
So far as the State is concerned, the laws forbidding public labor on Sunday stand on exactly the same footing as those forbidding disorderly houses, public intemperance, and all other acts which disturb the peace. The same may be said of laws against profane swearing.”
Reasoning from these principles, Mr. Pomeroy says: “Indeed, although the people composing our body politic are doubtless as much impressed with Christian ideas as those of any other nation, our governments, both State and National, by ignoring the whole subject, can hardly be called Christian." This is undoubtedly the truth. Neither Christianity nor any other religious system forms any part of the Constitution of the United States. The same is true of the State constitutions, as a general fact. The exceptions are such as were specified in the first part of this article; and even these exceptions are limited to a few particulars and in practice are mostly obsolete.
The all-pervading principle, then, of our American constitutions is that the State, as such, has nothing to do with religion, beyond affording to the people protection in the enjoyment of their religious rights, and that, too, with no discrimination among them. It is difficult to see how a State established upon this principle, and for reasons of State policy conducting a school system at the public expense, can make that system the instrument of religious instruction or worship in any form. It manifestly cannot do so without contradicting the fundamental law of its own organic life.
CONSTITUTIONAL RIGHTS OF CONSCIENCE.
The following citations present the several clauses of the American State constitutions, which in express words refer to the rights of conscience and guarantee their peaceable exercise and enjoyment :
ALABAMA (I., 4): "No person shall be deprived of the right to worship God according to the dictates of his conscience."
CALIFORNIA (I., 4): "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed in this State ;
but the liberty