Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow § 63.: Police regulation of religion—Constitutional restrictions.— - A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Return to Title Page for A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1

Search this Title:

Also in the Library:

Subject Area: Law
Topic: The American Revolution and Constitution

§ 63.: Police regulation of religion—Constitutional restrictions.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


§ 63.

Police regulation of religion—Constitutional restrictions.—

If there were no provisions in the American constitutions especially applicable to the matter of police regulation of religion, the considerations which would deny to the State the control and prevention of vice would also constitute insuperable objections to State interference in matters of religion. But the rivalry and contention of the religious sects not only demanded constitutional prohibition of the interference of the national government, but gave rise to the incorporation of like prohibitions in the various State constitutions. The exact phraseology varies with each constitution, but the practical effect is believed in the main to be the same in all of them. These provisions not only prohibit all church establishments, but also guarantee to each individual the right to worship God in his own way, and to give free expression to his religious views. The prohibition of a religious establishment not only prevents the establishment of a distinctively State church, but likewise prohibits all preferential treatment of the sects in the bestowal of State patronage or aid. A law is unconstitutional which gives to one or more religious sects a privilege that is not enjoyed equally by all.1 “Whatever establishes a distinction against one class or sect is, to the extent to which the distinction operates unfavorably, a persecution; and if based on religious grounds, a religious persecution. The extent of the discrimination is not material to the principle, it is enough that it creates an inequality of right or privilege.”2

But while religious establishments and unequal privileges are prohibited, and the State in its dealings with the individual is to know no orthodoxy or heterodoxy, no Christianity or infidelity, no Judaism or Mohammedanism, the law cannot but recognize the fact that Christianity is in the main the religion of this country. While equality, in respect to the bestowal of privileges, is to be strictly observed, the recognition of the prevailing religion, in order to foster and encourage the habit of worship as a State policy, is permissible, provided there is no unnecessary discrimination in favor of any particular sect. It is said that only unnecessary discrimination is prohibited. By that is meant that, in the encouragement of religious worship, there is in some cases an unavoidable recognition of the overwhelming prevalence of the Christian religion in this country. The masses of this country, if they profess any religious creed at all, are Christians. Thus, for example, it has long been the custom to appoint chaplains to the army and navy of the United States, and the sessions of Congress and of the State legislatures are usually opened with religious exercises. These chaplains are naturally Christian clergymen. If they were the teachers of any other religion, their public ministrations would fail in the object of their appointment, viz.: the encouragement of religious worship, because such exercises would offend the religious sensibilities and arouse the opposition of the masses, instead of exciting in them a greater desire for spiritual enlightenment. But these regulations can go no further than the institution and maintenance of devotional exercises. If attendance upon these exercises is made compulsory upon the army and navy, and upon the members of the legislative bodies, there would be a clear violation of the religious liberty of the person who was compelled to attend against his will. The Jew and the infidel cannot be forced to attend them.1

This question has of late years been much discussed in its bearings upon the conduct of religious exercises in the public schools of this country. It has been held that the school authorities may compel the pupils to read the Bible in the schools, even against the objection and protest of the parents.1 But it would appear that this view is erroneous. It is true that the regulation does not constitute such a gross violation of the religious liberty of the child, as it would, if attendance upon the school was compulsory. It is true that the Hebrew or infidel need not attend the public schools, if he objects to the religious exercises conducted there. But such a regulation would amount to the bestowal of unequal privileges, which is as much prohibited by our constitutional law as direct religious proscription. In accordance with the permissible recognition of Christianity as the prevailing religion of this country, it may be permitted of the school authorities to provide for devotional exercises according to the Christian faith, but neither teacher nor pupil can lawfully be compelled to attend.2 All education must be built upon the corner-stone of morality, in order that any good may come out of it to the individual or to society; and an educational course, which did not incorporate the teaching of moral principles, would at least be profitless, if not absolutely dangerous. The development of the mind without the elevation of the soul, only sharpens the individual’s wits, and makes him more dangerous to the commonwealth. The teaching of morality is therefore not in any sense objectionable; on the contrary, it should be made the chief aim of the public school system. But religion should be carefully distinguished from morality. The Jew, the Christian, the Chinese, the Mohammedans, the infidels and atheists, all may alike be taught the common principles of morality, without violating their religious liberty. The law exacts an obedience to the more vital and fundamental principles of morality, and the State can as well provide for moral instruction in its public schools. It is its duty to do so. But moral instruction does not necessitate the use of the Bible, or any other recognition of Christianity, and such recognition is unconstitutional, when forced upon an unwilling pupil.

[1]Shreveport v. Levy, 27 La. Ann. 671.

[2]Cooley Const. Lim. *469.

[1]Cooley Const. Lim. *471.

[1]See Donahue v. Richards, 38 Me. 376; Spiller v. Woburn, 12 Allen, 127.

[2]Speller v. Woburn, 12 Allen, 127. In Iowa by statute it was provided that the Bible shall not be excluded from the public schools but that no pupil shall be required to read it contrary to the wishes of his parent of guardian. In declaring the statute to be constitutional, the court says: “The plaintiff’s position is that by the use of the school-house as a place for reading the Bible, repeating the Lord’s prayer and singing religious songs, it is made a place of worship; and so his children are compelled to attend a place of worship, and he, as a taxpayer, is compelled to pay taxes for building and repairing a place of worship. We can conceive that exercises like those described might be adopted with other views than those of worship, and possibly they are in the case at bar; but it is hardly to be presumed that this is wholly so. For the purposes of the opinion it may be conceded that the teachers do not intend wholly to exclude the idea of worship. It would follow that the school-house is, in some sense, for the time being, made a place of worship. But it seems to us that if we should hold that it is made a place of worship within the meaning of the constitution, we should put a very strained construction upon it.

“The object of the provision, we think, is not to prevent the casual use of a public building as a place for offering prayer, or doing other acts of religious worship, but to prevent the enactment of a law, whereby any person can be compelled to pay taxes for building or repairing any place, designed to be used distinctively as a place of worship. The object, we think, was to prevent an improper burden. It is, perhaps, not to be denied that the principle, carried out to its extreme logical results, might be sufficient to sustain the appellant’s position, yet we cannot think that the people of Iowa, in adopting the constitution, had such an extreme view in mind. The burden of taxation by reason of the casual use of a public building for worship, or even such stated use as that shown in the case at bar, is not appreciably greater. We do not think indeed that the plaintiff’s real objection grows out of the matter of real taxation. We infer from his argument that his real objection is that the religious exercises are made a part of the educational system into which his children must be drawn, or made to appear singular, and perhaps be subjected to some inconvenience. But so long as the plaintiff’s children are not required to be in attendance at the exercises, we cannot regard the objection as one of great weight. Besides, if we regard it as of greater weight than we do, we should have to say that we do not find anything in the constitution or law upon which the plaintiff can properly ground his application for relief.” Moore v. Moore, 64 Iowa, 367 (52 Am. Rep. 444). See, in support of the text, State v. District Board of School Dist. No. 8, 76 Wis. 177; Barrett v. City of Winnepeg, 19 Canada S. C. 374; Stevenson v. Hanyen, 7 Pa. Dist. 585; 9 Kulp. 256. In Michigan it has been held very recently, that provision for the reading of the Bible in the schools at the close of the secular exercises does not constitute a violation of the religious liberty of the pupils, where no pupils are to attend the religious exercises against the expressed wishes of the parents. Pfeifer v. Bd. of Education of Detroit (Mich. ’98), 77 N. W. 250.