This week I read a news story that involved the intersection of civil government and personal religious beliefs. It demonstrates the mess the U.S. Supreme Court has made of the First Amendment. What people don’t realize is the Court’s substitution in 1947 of one innocuous looking little word for the word actually used in the First Amendment and the Court’s turning a blind eye to the well-established historical meaning of a different word effectively abolished religious liberty in America.

The story involved a decision by the U.S. Army to prohibit a company from printing a Bible verse on a dog tag if a soldier wanted to have one. Many today would say, “That’s right. Printing Bible verses on a dog tag for a military service member is ‘the establishment of religion.’”

The story helps demonstrate what appears to me to be nothing short of a takeover of religious liberty by the U.S. Supreme Court through its Establishment Clause jurisprudence.

How Changing One Word Changes Everything

I offer as proof the following excerpt from an article by professor L. John Van Til¹, formerly of Grove City College and an expert in the history of religious liberty from the Reformation through the ratification of the U.S. Constitution. He penned these words in the context of the Hobby Lobby case then pending before the United States Supreme Court over the abortion coverage mandate in Obamacare:

One of the largest points of contention after the American Revolution was whether to disestablish the Anglican Church in Virginia. Thanks to the arguments of Madison and Jefferson it was, indeed, disestablished. In early 1786, with overwhelming support, the Virginia House passed into law “An Act for Establishing Religious Freedom.”

Other states quickly followed Virginia’s example. The specific intent of these measures were [sic] to ensure that there would be no state-sponsored churches. Everyone knew at the time, and for the next 160 years, that the phrase “an establishment of religion” directly referred to a church. It meant nothing more, nor anything other, than an organized place of worship. It was the place in which religious convictions were formally practiced.

Helping to define what religion meant, Jefferson, echoing John Locke, said, “Religion is the duty we owe our Creator.”

Over a century and a half passed, and the Supreme Court began to muddle the meaning, especially in 1947’s Everson v. Board of Education. Justice Hugo Black took it upon himself to change the phrase from “an establishment of religion” into “the establishment of religion.” This dramatically altered the meaning of this clause. . . .

That seemingly little change in the use of an article, from “an” to “the,” altered American jurisprudence profoundly. This change by Justice Black allowed subsequent courts to examine all sorts of religious issues in the name of “the establishment of religion.” (emphasis in the original)

In other words, “an establishment” of religion meant the Court was “to examine” a law to see if it tied the government to an organized place of worship or, I might add, quoting former Justice Joseph Story’s Commentaries on the Constitution, gave to “any national ecclesiastical establishment . . . the exclusive patronage of the national government.”

Applying the meaning of “an establishment,” we don’t find people gathering around the dog tag hanging from a soldier’s neck to worship and receive instruction regarding “the duty we owe our Creator.” Putting a Scripture verse on a dog tag did not give the Southern Baptist Convention or the Catholic Church the exclusive patronage of the national government. This is not “an establishment” of religion.

But if the Court gives itself permission “to examine” a law to see if there is anything religious going on at all, well, that could be the establishment of religion. “An” to “the” was a slick way for the Court to look for and drive any unwanted religious ideas out of the public square.

Why the Change Was ‘Necessary’

Like any other god that offers to people salvation and protection, civil government, with its perpetual pretensions to be our salvation from the social ills that beset us and the protector of our economic wellbeing, cannot allow the free exercise of religion.

Thus, messianic civil government must, in time, adopt or embrace a policy of toleration toward religious beliefs and actions as compared to religious liberty so that it is in a position to tolerate only those beliefs and actions that will not undermine the subject’s allegiance and devotion to it. Toleration is not free exercise of religion.

Now civil government, primarily the U.S. Supreme Court, is in principle effectively exercising jurisdiction over all matters of religious conscience and free exercise by misapplication of the Establishment Clause to everything that smacks or smells of religion. By this means, we really only get the “free exercise” that the U.S. Supreme Court is willing to tolerate and that which it is willing to protect when legislative bodies with a messianic complex try to control everything in our lives.

That’s why I say, as a practical matter, we no longer have religious liberty, only religious toleration.

NOTES

1. For a complete but concise understanding of that history, I strongly commend Liberty of Conscience: The History of a Puritan Idea by Dr. L. John Van Til. If you don’t like to read, then listen to today’s God, Law & Liberty podcast and the one next week.
 

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David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.