The other day I came upon an essay written by an Advisory Board Member of the Military Religious Freedom Foundation (MRFF), retired Brigadier General John M. Compere. I have read and responded to General Compere’s views before. In my view, the General espouses an overly expansive view of the Establishment Clause of the First Amendment at the expense of both the Free Exercise and Free Speech Clauses. I also think that he advocates limits to the Free Exercise Clause that are supported neither by the constitutional text nor by Supreme Court decisions.
In the remainder of this reply, I will use the format I used previously when replying to General Compere’s views. In order to ensure that I don’t misquote the General, I reproduce his words in bold print. Where I believe a comment is called for, I do so in regular print following the word, “COMMENT.” Hopefully, that will make sense as you read on.
The General’s article begins as follows:
The United States Constitution was signed on September 17, 1787. Our Bill of Rights, the first 10 Amendments to the Constitution, was ratified on December 15, 1791.
The 1st & 2nd Amendments were first and second priority of our Founders. The 1st Amendment provides our historic trinity of religious liberties (freedom from public religion, freedom of private religion, and freedom of religious speech) and other speech or press, and the right to assemble and petition. The 2nd Amendment provides our right to keep and bear arms (individually and collectively).
COMMENT. First, I believe that the General is wrong in asserting that the First Amendment protects “freedom from public religion”—at least in the absolute sense. One can note public displays of religious sentiments and symbols on government property throughout our society, and the Supreme Court has upheld many (but, admittedly, not all) such displays as constitutionally permissible. Even the Constitution of the United States itself includes a clear Christian religious reference, when it ends as follows: “done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven . . . .” (emphasis added). Such wording is commonly understood to refer to Jesus Christ. The Founders apparently did not believe that a reference to Jesus Christ as “our Lord” violated so-called church-state separation. And, to those thinking “Gotcha!”, yes, I am aware that the “year-of-our-Lord” phrase pre-dates the adoption of the First Amendment.
In case one wonders whether the Founders had a change of heart reflected in the First Amendment, let’s look at what the Supreme Court has said about interpreting the limits of the Establishment Clause. Let’s begin by examining what the Court has to say about the appointment and payment from the federal treasury of legislative chaplains for both houses of Congress (this should be authoritative, given General Compere’s statement below that the Supreme Court has “exclusive authority to interpret the Constitution”). I dealt as follows with this very same issue in my previous reply to an essay by General Compere (you can find my full argument here):
One of the methods used by the Supreme Court for interpreting the meaning and legal reach of the First Amendment is to examine how those who drafted and ratified the Amendment acted in light of its express terms. One can begin to understand what the Establishment Clause allows (and disallows) by examining what transpired in the earliest years of our Nation during the period when the First Amendment was being drafted and subsequently ratified. For example, “the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer,” see Marsh v. Chambers, 463 U.S. 783, 787-88 (1983), and a “statute providing for the payment of these chaplains was enacted into law on September 22, 1789.” Id. at 788. Moreover, within days of legislating to pay Congressional chaplains from the federal treasury, “final agreement was reached on the language of the Bill of Rights.” Id. From these facts, the Supreme Court concluded that, whatever the Establishment Clause means, it does not mean that paid, legislative chaplains and their daily, public prayers violate the Establishment Clause. Id.; see also id. at 790 (“It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause to forbid what they had just declared acceptable.”). The Marsh Court concluded that chaplain-led prayer opening each day’s session in both Houses of Congress “is not . . . an ‘establishment’ of religion,” but rather “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id. at 792.
I then continued:
Early national leaders also acted in ways that strict separationists today argue expressly violate the Establishment Clause. For example, President Washington issued proclamations of thanksgiving to Almighty God during his presidency, and President Adams called for a national day of fasting and prayer. President Thomas Jefferson—a man often described as a strong defender of strict church-state separation—signed multiple Congressional acts to support paid Christian missionary activity among the Indians. See Daniel L. Driesbach, Real Threat and Mere Shadow: Religious Liberty and the First Amendment 127 (1987) (noting that the 1803 treaty with the Kaskaskia Indians included federal funds to pay a Catholic missionary priest; noting further treaties made with the Wyandotte and Cherokee tribes involving state-supported missionary activity). Further, during his presidency, President Jefferson also approved a curriculum for schools in the District of Columbia which used the Bible and a Christian hymnal as the primary texts to teach reading, seeJohn W. Whitehead, The Second American Revolution 100 (1982) (citing 1 J. O. Wilson, Public School of Washington 5 (1897)), and he signed the Articles of War which “[e]arnestly recommended to all officers and soldiers, diligently to attend divine services.” See Charles E. Rice, The Supreme Court and Public Prayer: The Need for Restraint 63-64 (1964). Hence, as one honestly examines Governmental acts contemporaneous to the adoption of the First Amendment, it is difficult to deny that, in the early days of our Republic, church and state existed relatively comfortably (and closely) together, with contemporaries of the drafters of the First Amendment showing little concern that such acts violated the Establishment Clause. As the Marsh Court aptly recognized, actions of the First Congress are “contemporaneous and weighty evidence” of the Constitution’s “true meaning.” See Marsh, 463 U.S. at 790 (citation omitted).
Further, in Zorach v. Clausen, the Supreme Court aptly noted that “[w]e are a religious people whose institutions presuppose a Supreme Being. . . .” See 343 U.S. 306, 313 (1952). Accordingly, “[the Government] sponsor[s] an attitude . . . that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma.” Id.
As I show below, there are numerous Supreme Court and lower federal court decisions on point that have determined that manifestations of “public religion” are constitutionally acceptable and do not violate the Establishment Clause. This is not an exhaustive list; there are many others, but the list below shows that the government may indeed support “public religion” without running afoul of the Establishment Clause. Among these are the following:
Second, I believe that the General is wrong in asserting that the First Amendment merely protects “freedom of private religion.” The actual Constitutional language is “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (emphasis added). There is no requirement that one’s free religious exercise be “private” to garner First Amendment protection. One may publicly exercise one’s religion under the First Amendment. The government may, of course, impose reasonable time, place, and manner restrictions, but such limitations apply to all First Amendment rights, not just those dealing with religion.
Third, I believe the General is not being candid when he mentions freedom of religious speech. For example, the organization he advises, the MRFF, frequently tries to shut down religious speakers because of the religious sentiments they will likely express. A case in point is MRFF President Michael L. “Mikey” Weinstein’s frequent attempts to compel organizations to disinvite persons he and MRFF supporters dislike from addressing prayer breakfasts. They also try to squelch other religious expression with which they disagree, such as demanding that a sign on a military installation reading “God bless our troops” be removed as violating the Establishment Clause by imposing a “Christian” sentiment (I know, I know—I also have a hard time discerning how the use of the generic term “God” is somehow uniquely “Christian”). A final example is that the MRFF believes that the mere presence of a Bible in a POW remembrance display constitutes an unlawful imposition of religion on those who view the display.
General Compere goes on:
The US Supreme Court has the exclusive authority to interpret the Constitution (Article III) and has done so with respect to the 1st and 2nd Amendments based upon their language, and historic intent as confirmed by public records. That is our American judicial tradition of constitutional construction. No law, past or present, limits the Court’s interpretation to literal language.
COMMENT. First, the General is wrong to say that the Supreme Court has “exclusive authority” to interpret the Constitution. It does have the ultimate authority to interpret the Constitution, but lower courts routinely interpret the Constitution. One need only think of recent lower court decisions concerning President Trump’s order to temporarily bar persons from certain countries from entering the United States. See, e.g., Int’l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570, 602 (D. Md. 2017) (noting that “courts can and do review both constitutional and statutory challenges to the substance and implementation of immigration policy”).
Second, one will look in vain at Article III to find any language that gives the Supreme Court “exclusive authority” to interpret the Constitution.
Third, once again, the General cites to sources that cannot be independently confirmed. For example, he asserts that the Supreme Court has interpreted the Constitution, inter alia, “based upon . . . historic intent as confirmed by public records.” Yet, he cites not one example for the reader to check. An example or two would be very helpful and doubtless strengthen his argument.
Our Supreme Court established a 3 part test for determining if a government action complies with 1st Amendment separation of religion and government: (1) it must have a secular purpose; (2) it cannot advance or inhibit religion; and (3) there must be no entanglement between government and religion. If these constitutional requirements are met, the action conforms to 1st Amendment separation of church and state, and is lawful. If all are not met, the action is unconstitutional and unlawful. Lemon vs Kurtzman, 91 Supreme Court [sic] 2105 (1971).
COMMENT. Although the three-part test in Lemon does exist, the test is infrequently used today and appears to be increasingly disfavored (though, admittedly, it has not yet been overruled). Since 1971, the Supreme Court has dealt with numerous cases where the Lemon test could have been applied, but the Supreme Court chose another test to resolve the issues at hand. In fact, I am aware of seven Justices of the Supreme Court who have criticized the test, strongly suggesting that its continued viability may be short-lived:
Yet General Compere maintains:
It is revealing that opponents of our constitutional right to separation of church and state never refer to this landmark American case nor reference its citation for reader review.
COMMENT. First, I confess that I do count myself as an opponent of positions taken by the General and the MRFF vis-à-vis his/their concept of separation of church and state. That does not mean, however, that I oppose limits set by the Establishment Clause (I use “Establishment Clause” rather than the extra-constitutional phrase “separation of church and state” because the latter phrase is often incorrectly interpreted to mean a strict church-state separation which I believe was never intended by the Founders). Hence, I do oppose our Government from establishing any religious entity to which the Government could compel my (or anyone else’s) support—even if it were to benefit the religious faith I profess. Every person should be able to choose whether to follow or decline to follow any religious teaching or faith group. As a Christian Believer, I do believe that the choice one makes in this regard has eternal consequences, but my faith also teaches me that each of us is nonetheless free to choose or reject the Biblical God—or any other deity, for that matter.
Second, despite the General’s claim that opponents “never refer to this landmark American case nor reference its citation for reader review,” in my last response to the General, I did indeed cite to the Lemon case (and gave the full citation for an interested reader to pursue, should he/she so desire), although I did not lay out the elements of the Lemon test, since, as I have noted above, the test is infrequently used today and that a number of past and current Justices believe it to be of little use in resolving the issues before the Court. This is how I put it last time:
Hence, rather than a bright line rule, the so-called “wall” separating church and state “is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship,” see Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), and the location of the line separating church and state must be determined on a case-by-case basis, id. Accordingly, strict church-state separation has never been required in the United States and is not required now.
General Compere goes on to assert:
The 1st Amendment’s language was primarily relied upon with its historic purpose acknowledged. The government shall make no law “respecting” a religion, “prohibiting” its free exercise or “abridging” speech and press freedom or the right to assemble and petition. The Founders’ intent to make our government the first in history to constitutionally separate public government from private religion is indisputably documented in countless historic records and was in response to centuries of civil conflict and human harm in Europe when governments and religion were combined and co-dependent.
COMMENT. First, as I have pointed out in my response to General Compere before, the First Amendment does not prohibit any law “respecting” a religion. Instead, the First Amendment prohibits the federal Government from making “any law” “respecting an establishment of religion” (italics added). The word “respecting” in that phrase means “with respect to,” since the object to which “respecting” refers is “establishment,” not “religion.” In fact, in Zorach v. Clausen, the Supreme Court noted, contrary to General Compere’s view, that “[the Government] sponsor[s] an attitude . . . that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma,” 343 U.S. 306, 313 (1952), thereby respecting all religions.
Second, once again, the General refers to phantom documentary back-up (saying the Founders’ intent “is indisputably documented in countless historic records,” not one of which he felt necessary to cite). I say “phantom,” not because there are no historic documents out there, but because he cites to no sources that support his specific contention that there are documents which advocated separating “public government from private religion.” It would be helpful to read such documents in context, assuming they exist.
The unsuccessful position of those opposing our constitutional separation of government and religion misconstrue the first clause to mean only a national religion cannot be established. However, that is not what it expressly provides. The first clause states “respecting” (not establishing) “an establishment of religion” (not a national religion). Moreover, freedom from public religion is its recorded historic intent affirmed by the US Supreme Court.
COMMENT. Even though I oppose the positions advocated by General Compere, I do not misconstrue the Establishment Clause to mean only that no national church could be established. Yet, whatever the ultimate contours of the Establishment Clause turn out to be, at a minimum, we should all be able to agree that the Establishment Clause does indeed forbid the creation of a national “church.” This makes historic sense given the colonists’ experience with the established Church of England and the fact that, even as the First Amendment was being drafted, a number of the thirteen states still had their own established churches of different denominations and the First Amendment did nothing to disestablish those churches (since the First Amendment only limited the federal government).
I would also posit that no early American leader was seriously (or otherwise) concerned about the possibility of the establishment of any other type of religious entity other than some branch of the Christian faith, which is why we naturally use the phrase “separation of church and state” (as opposed to “mosque and state” or “synagogue and state” or any other “religious entity” and state). The only “religion” seriously being talked about at the time was some variant of Christianity.
Our Supreme Court held the 2nd Amendment protects the individual right to posses [sic] a firearm for traditional lawful purposes unconnected to service in a militia. District of Columbia vs Heller, 554 United States [sic] 570 (2008).
COMMENT. Note the change in argument here. The General emphasizes the individual right to possess a firearm. This is critical. The General’s point (made more fully below) is to suggest that the Supreme Court is not bound by the literal terms of the Constitutional text. He is doing this—I believe—to counter persons like myself who criticize his continuing use of the extra-constitutional phrase, “separation of church and state,” as authoritative in interpreting the Constitution. His argument runs like this: Since the Supreme Court found an individual right to possess firearms from a Constitutional text that uses the plural word, “people,” it is proof positive that the Court is not bound by the literal text the Court is interpreting. Although I agree that the Court is not absolutely bound by the literal text, I disagree that the Court is not bound by the commonly understood meaning of the words in the text as well as how those words were used in historical context (as you will see below).
It is revealing that opponents of our constitutional right to individually keep and bear arms never refer to this landmark American case nor reference its citation for reader review.
COMMENT. As an aside, I don’t usually discuss the Heller case, not because I don’t agree with its holding (I do agree with the holding), but because the Second Amendment falls outside the corpus of law we normally deal with in the ACLJ.
The 2nd Amendment’s documented historic intent was relied upon and its literal language not strictly construed. The “individual” right to keep and bear arms is not contained in the 2nd Amendment. A literal interpretation would limit the right to keep and bears arms to “people” (a plural noun) in connection with a “well regulated Militia” (secured in a government armory – not individual possession).
COMMENT. I agree that the Second Amendment gives individuals the right to keep and bear arms. I disagree, though, with General Compere’s analysis regarding literal language and literal interpretation, which I believe is a contrived argument. I believe that the “individual” right is obviously contained in the Second Amendment. Although the word “people” is a plural noun, one of its definitions is “an aggregate of individuals forming a whole.” See Webster’s Dictionary(emphasis added). Hence, as “an aggregate of individuals,” it is individual rights that are ultimately at issue, and the Court rightly recognized that.
Further, one definition of militia is “a military force that is raised from the civil population to supplement a regular army in an emergency.” See here. Since a militia at the time of the drafting of the Bill of Rights was a military force raised from the civil population and expected to bring its own arms, there is nothing suspect or extraordinary about the Court concluding that the Second Amendment dealt with the individual right to keep and bear arms since the militia was composed of an aggregate of armed individuals drawn from the people.
I also disagree with General Compere’s assertion that a “literal interpretation” of “well regulated militia” means “secured in a government armory.” That is an extrapolation from the language itself and is not in any way, shape or form a “literal interpretation.”
The unsuccessful position of those opposing our individual right would literally interpret it to prevent the individual right to keep and bear arms and limit the right to collectively in a government regulated militia because that is what the 2nd Amendment expressly provides.
COMMENT. I believe that General Compere’s analysis is flawed based on the discussion immediately above. Just because the word “people” is a plural noun does not negate the fact that the persons reporting for duty as part of the militia were individuals expected to bring their own weapons. Accordingly, the issue concerned whether individuals had the right to keep and bear arms.
An amusing situation arises when unqualified commentators oppose constitutional separation of government and religion because the 1st Amendment does not literally state “separation of church and state”, but then completely contradict themselves by supporting the individual right to keep and bear arms when the 2nd Amendment does not literally state “individual”. They cannot have it both ways without a self-inflicted credibility wound. Mark Twain’s wisdom comes to mind: “In matters concerning religion and politics a man’s reasoning powers are not above a monkey’s.”
COMMENT. The above paragraph reflects the real purpose of this essay—to justify the use of the phrase “separation of church and state.” Not surprisingly, the first sentence suggests that the General does not number himself among the “unqualified commentators.” Apparently, only those who disagree with his analysis fall into that category. Nonetheless, I believe the real “amusing situation” referred to above actually concerns the author of the underlying essay who has posited the painfully contrived arguments raised above, based on a strawman, to wit, that, because the Supreme Court interpreted the plural word “people” to allow the singular, “individual” right to possess firearms, that means that it’s okay to use the extra-constitutional phrase “separation of church and state” when discussing Establishment Clause issues. Regarding the humorous quote by Mark Twain, I suggest that possibly, just possibly, the General should consider the myriad cases I have cited before he insinuates that the Twain quote applies only to people other than himself.
Patriotic adults who respect and wish to know about our American Constitution can do so by reading and researching it along with the cornerstone cases cited above. The concocted and confusing claims of those who do not can be rejected.
COMMENT. I agree, except I would suggest not limiting oneself to the two cases cited by General Compere (or his flawed logic). I suggest that one check out the numerous cases that I have cited as well and determine for oneself which of us has a better understanding of the law.
“The Constitution is a guide which I will never abandon.” – GEORGE WASHINGTON
“Educate and inform the whole mass of people. They are the only sure reliance for the preservation of our liberty.” – THOMAS JEFFERSON
“Don’t interfere with anything in the Constitution. That must be maintained for it is the only safeguard for our liberties.” – ABRAHAM LINCOLN
Brigadier General, US Army (retired), Disabled American Veteran (Vietnam), MRFF Advisory Board Member, retired US judge, retired trial lawyer and Texas rancher.
* * * * *
Given General Compere’s reliance on the Lemon test, it is worth repeating what Chief Justice Rehnquist wrote referring to both that test and the theory upon which it relies, both of which seem to enamor General Compere and his MRFF allies:
[T]he Lemon test has no more grounding in the history of the First Amendment than does the wall theory [i.e., “wall of separation between church and state”] upon which it rests. The three-part test represents a determined effort to craft a workable rule from a historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service. The three-part test has simply not provided adequate standards for deciding Establishment Clause cases . . . .
Wallace v. Jaffree, 472 U.S. 38, 110 (1985) (Rehnquist, J. dissenting).
To which I heartily reply, “Amen!”
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