Whited Sepulchres

The following essay is an adapted set of remarks delivered by JWI Co-Director Gerard Bradley at an event held in February 2024 on the topic of Prof. Daniel Dreisbach’s book, Reading the Bible with the Founders.

The Supreme Court made a U-turn on Establishment Clause law in June 2022. Kennedy v. Bremerton Schools was about a public high-school football coach who engaged in conspicuous on-field, post-game prayer. When the Court granted review, everyone who had not been asleep for the last decade or so knew that Coach Kennedy would somehow prevail, even though the Court had fallen into the school-prayer rabbit hole many times before. The Justices first considered school prayer as possibly unconstitutional in 1962, when it threw out (in the case of Engel v. Vitale) a teacher-led non-denominational invocation which students were not required to join. The Court took up school prayer in other contexts several times since: Bible-reading in Schempp 1963; Wallace v. Jaffree, the 1985 moment-of-silence case, which the Court treated as if it were a prayer case; middle-school graduation prayer in Lee v. Weisman in 1992; and cousin-of Kennedy (if you will), student-led football game prayer in Santa Fe School District, year 2000. The results had been uniform: prayer was silenced every time.   

Kennedy ended the losing streak. The Court held there that Coach Kennedy carried his initial burden of showing a prima facie violation of his Free Speech and Free Exercise rights. Then the big game began.  The school district “insist[ed] [that] Mr. Kennedy’s rights to religious exercise and free speech must yield to the District’s interest in avoiding an Establishment Clause violation under Lemon and its progeny.” That would be the infamous three-part Establishment Clause test of constitutionality, laid down in 1971 in the case of Lemon v. Kutzman: every government action must have a “secular” purpose, avoid effectively advancing religion (the Court usually said “primary” effect, but in practice it was any significant effect), and steer clear of “excessive entanglements” between public authorities and religion. 

Coach Kennedy prevailed. The Court’s opinion marked a watershed, however, for more than school prayer. Justice Gorsuch wrote for the majority that the Lemon test was too “abstract, and ahistorical”. He said that the Court had “long ago abandoned” it. That is surely untrue. As Judge Jay Richardson of the Fourth Circuit wrote last year, the cases which allegedly “abandoned” Lemon said no such thing.  Nonetheless, “it is now clear,” Richardson added, that “Lemon and its ilk are not good law.”  This is surely true.

So, what now?

The Kennedy Court held that the Establishment Clause must be interpreted by ‘‘reference to historical practices and understandings.” “[T]he line that courts and governments must draw between the permissible and the impermissible has to accor[d] with history and faithfully reflec[t] the understanding of the Founding Fathers.”  [Internal quotation marks omitted.} 

Henceforth it is, evidently, to be “all history all the time.” The Justices propose to ride bareback across the Founding era, checking to see what the Founders did about specific “church-state” issues – like legislative prayer, public support of religious schools, oaths, and public religious monuments.

Now is an opportune time to dust off your copy of Daniel Dreisbach’s magisterial 2017 work, Reading the Bible with the Founding Fathers. You will find no better account of what the Court says it will seek in future Establishment Clause cases than you will discover in this book. One reason why is Dreisbach’s encyclopedic knowledge of the Founding era and the Founders, on full display in Reading. Another reason is that, notwithstanding his own expertise, Dreisbach chose in this work to (as he put it) “let the founders speak for themselves rather than for me to tell the reader what the founders thought or said.”

They thought and said (and did) a lot about religion and how government was related to it. None of it will much help the Court as it traverses the Founders’ fields, though, without a major renovation of the radically secular categories and concepts which fifty years of Lemon-izing wrought in our constitutional law of church and state.

Let me explain.

For example: in Dreisbach’s chapter on “Benjamin Franklin’s Call for Prayer,” he includes the entirety of his protagonist’s pivotal speech at the constitutional convention. He then observes that it “indicates Franklin acknowledged the existence of an omniscient, superintending Deity who orders the affairs of men and nations and who is aware of the minute details of the material world.” Dreisbach allows that one might question whether Franklin believed all that he said. Maybe Franklin was a skeptic. He was in any event a superlative rhetorician. He knew which buttons to push in his audience.

The message of Dreisbach’s chapter on oaths is best captured in this quote of John Witherspoon, President of Princeton University and signer of the Declaration of Independence: “An oath is an appeal to God, the searcher of hearts, for the truth of what we say, and always expresses or supposes an imprecation of his judgment upon us, if we prevaricate. An oath therefore implies a belief in God, and his Providence, and indeed is an act of worship. ”Thou shalt fear the Lord thy God and swear by his name,” here citing Deuteronomy. 

The keystone in the arch of the Founders’ sacred canopy over their common life was divine Providence.  Chief among the takeaways from this complex set of convictions about God’s plan and care for humankind was that America was a “righteous nation,” one with a divinely ordained mission. Here Dreisbach paraphrases the exemplary belief of Virginian George Mason: “the principle of divine rewards and punishments has more immediate implications for nations than for individuals.” God can punish individuals in the next life, but “God can only reward and punish nations in this world” because nations do not exist in the next. No surprise, then, that the God-fearing American people erected so many artistic and verbal testimonies to God, the “Sovereign and Almighty Ruler of the Universe.” They were fit expressions of gratitude to God. They were the substance of things hoped for, the evidence of things unseen.  

Public authority in 1787 and for decades thereafter was neck-deep in financial support for religious schooling. (There was no other kind; public schools as we know them were not yet invented.) The chief reason for the state’s intimate support of religious schooling, including collegiate seminaries, was not, however, lack of alternatives. It was instead a commonplace thought of the Founding, one most famously expressed in the Northwest Ordinance (“Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged”), and in Washington’s Farewell Address (“Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports”), Dreisbach cites them. But he features a juicy quote from a different source and circumstance: a grand jury charge delivered by Associate Justice William Paterson, in an 1800 prosecution. Paterson said that “[r]eligion and morality were pleasingly inculcated and enforced as being necessary to good government, good order, and good laws, for when the righteous are in authority the people rejoice”.   

Note that Paterson is not extolling religion for its instrumental value, as something to care about because it conduces to what you really care about, namely, law and order. There is no sequence of cause and effect running downstream. It is rather that “religion and morality” are the stuff of “righteousness”. They are constitutive of public well-being and not private (if you will) tributaries to it.

Here’s the thing, though, about how Dreisbach’s deft portrayal of the Founding will confound rather than comfort the Supreme Court. Oaths, public prayer, religious monuments, sabbath observances, religious schools – indeed, the whole panoply of church-state interactions – exhibited the Founders’ convictions about what was true about divine realities. Lemon and the secularist mandate it implemented struck down many of these hallowed practices. More important is that Lemon hollowed out, desacralized, blanched  — that is, secularized — even the practices which survived the Lemon gauntlet.           

The Court has upheld legislative “prayer” twice, in 1983 (Marsh v. Chambers) and in 2014 (Greece v. Galloway). You can read those opinions from front to back, and there and back again, and scarcely hear the Justices describing a genuine prayer. The Court ratified verbal exercises sounding in religion, for the secular purposes of “solemnizing” the occasion and sending a signal that serious business was about to get underway. The Court’s blunt generic categorization of public religious observances — “ceremonial deism” – is, in the judgment of R.L. Moore and Isaac Kramnick, authors of Godless Citizens in a Godly Republic, “a phrase that would have meant nothing to our founders.” 

An “oath” is for us an element you need to prove to convict for perjury. It is animated by fear of Caesar not of the Almighty. For the Founders, oaths were heartfelt invitations to God – the searcher of hearts – to stand by the swearing witness’s testimony.   

As long ago as 1960 the Court upheld Sunday closing laws, which the Justices recognized were part of the civic furniture at the Founding for the unalloyed purpose of promoting worship. In McGowan v. Maryland, however, the Court was having none of that: “Laws setting aside Sunday as a day of rest are upheld not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities, and their validity has been sustained by the highest courts of the States.”

The Court in 1970 upheld in the case of Walz v. Tax Commission the traditional practice of exempting churches from property taxes. But it did so, not (as the Founders did) for the sake of religion itself. The Justices insisted that the “legislative purpose of the property tax exemption is neither the advancement nor the inhibition of religion; it is neither sponsorship nor hostility.” The state “granted exemption to all houses of religious worship within a broad class of property owned by nonprofit, quasi-public corporations which include hospitals, libraries, playgrounds, scientific, professional, historical, and patriotic groups. The State has an affirmative policy that considers these groups as beneficial and stabilizing influences in community life and finds this classification useful, desirable, and in the public interest.”

In the 2020 Bladensburg Cross case (American Legion v. American Humanist Association) Justice Alito wrote that, “even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. And regardless of the original purposes for erecting the monument, a community may wish to preserve it for very different reasons, such as the historic preservation and traffic-safety concerns.”

The Supreme Court during the 1970s was the angel of death for state financial efforts to save largely urban, minority-serving Catholic schools from closing. A few dribbles of aid survived the purge. In every case, however, the Court insisted that not a penny find its way to support religion. The 21st century Court has taken a much more forgiving approach to such aid. Even so, the religious character of recipient schools is – depending on which side of the contemporary argument you take – an unobjectionable incidental feature or a disqualifying mix of church and state.

More thematically: the starting point and regulative norm of all the Court’s church-state law since Lemon has been the divide between the religious and the “secular”: lawmakers must work for “secular” ends, have “secular” and not “religious” purposes. But this division is anachronistic.

For the Founders there was this world and the next. Death marked a passage between the two. That difference was not a hard boundary, in either thought or action, between the “secular” and the “religious.” For the Founders, the border between the two realms was permeable by prayer ascending and by grace descending.  God reigned in both worlds. For the Founders, governmental care for the common good included care for religion. If they were pressed further to articulate this arrangement, they likely would have said that, while religion was undeniably a distinct and incommensurate part of human experience which could be distinguished from other human goods (such as life itself, knowledge, and morality), the common good of the political community included religion, and public authority had a limited but still important duty to foster religion. 

Here is a Bible verse Daniel Dreisbach did not cull from the Founding-era sources. “Woe to you, scribes and Pharisees, hypocrites! You are like whitewashed tombs, which appear beautiful on the outside, but inside are full of dead men’s bones and every impurity” [Mt 23:27]. Our constitutional questions today are about “whited sepulchers”. Are the Founders’ visible expressions of their living faith in and fear of God real precedents for them? I think not. There is a certain similarity of form, of outward appearance, but this merely papers over without concealing a totally different substance. It is not that the Founders way back then and some city council the day before yesterday are doing the same thing, albeit with varying ulterior motives or even “intentions,” when they open a lawmaking meeting with prayer (or “prayer”).  It is that we are talking about totally different human actions. Today’s “civil religion” and “ceremonial deism” and legislative “prayer” are burlesques of what the Founders wrought — counterfeits, imposters all.

Gerard V. Bradley is Co-Director and Senior Scholar at the James Wilson Institute. He is a law professor and director of the Natural Law Institute at the University of Notre Dame Law School.
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