James Madison is hailed as the “Father of the Constitution.” The first ten amendments to the Constitution are also his progeny. For his role in drafting them, Madison is known as the “Father of the Bill of Rights.”
So presumably James Madison knew a thing a two about “The Establishment Clause,” the opening part of the First Amendment, which states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Madison’s obvious awareness of his intent and of the intent of the First Congress, in which he was a member, in adopting the “Establishment Clause” means he most likely would have been horrified by this week’s Supreme Court decision in Town of Greece v. Galloway.
First, a little background on the case: Greece, New York, is near Rochester. Town officials begin public meetings with a prayer from a “chaplain of the month.” While that designation suggests a generic religious reference, the chaplain is almost always Christian and sometimes uses distinctly sectarian language, such as “the saving sacrifice of Jesus Christ on the Cross.”
Two residents of Greece objected to the prayers, saying they contradicted the First Amendment’s establishment clause. (Note: While the Bill or Rights refers to the national government, the Supreme Court has held that the Fourteenth Amendment, passed after the Civil War to insure the rights of the freedmen, made the Bill of Rights applicable to state and local governments.)
The Supreme Court agreed with town officials, holding by a vote of 5-4 that Greece had not violated the Constitution with its sectarian prayers. Justice Anthony Kennedy, writing for the five conservative members of the court, said the prayers were ceremonial and signaled the solemnity of the meetings. Kennedy held that the prayers lent “gravity to the occasion and reflect values long part of the Nation’s heritage.”
Cue James Madison. But first a caveat: It is always hazardous to infer what historical figures might have thought about modern affairs. Yet we have comments from Madison later in life reflecting on the role of religion in the public sphere. Moreover, it is hard for critics of the Court’s decision to ignore Madison’s views since Kennedy cited the “Father of the Bill of Rights” several times. He also cited as precedent the practice of the First Congress “to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time.”
After retiring from public office, Madison wrote “The Detached Memoranda,” a series of draft essays on various topics that he probably intended for future publication. One memorandum is devoted to the subject of religious liberty.
“The Constitution of the U.S.,” Madison writes, “forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment?” (Note: Kennedy, in his majority opinion, cited the phrase “religious worship for national representatives” to bolster his point, without placing that phrase in its obvious and proper context. If he had been writing a history dissertation, he would have been censored severely by his readers.)
Madison continues: “The establishment of the chaplainship to Cong[res]s is a palpable violation of equal rights, as well as of Constitutional principles: The tenets of the chaplains elected [by the majority] shut the door of worship ag[ain]st the members whose creeds & consciences forbid a participation in that of the majority. To say nothing of other sects.”
Madison would not have agreed with the Court’s liberal judges, either. The four dissenters did not object to prayer per se, only to what they viewed as sectarian prayer in Greece’s town meetings. Madison would have been mystified by the concept of non-sectarian prayer. An absolutist on government and religion, he referred to Virginia’s Statute for Religious Freedom, written by Thomas Jefferson and ushered through the state legislature by Madison, as the touchstone for the separation of church and state. “This act,” he wrote years later in “The Detached Memoranda,” “is a true standard of Religious liberty: its principle the great barrier ag[ain]st usurpations on the rights of conscience. As long as it is respected & no longer, these will be safe.”
The appointment of chaplains to legislative bodies, Madison went on to say, violates the standards set down by Virginia’s famed statute and emulated in the First Amendment to the Constitution.
Madison is clear: Unlike the Supreme Court, he would tolerate no infringement on the separation of church and state, rightly fearing that even the seemingly most harmless “non-sectarian” prayer is a step toward the establishment of a national religion.