Memorial and Remonstrance Against Religious Assessments: How The Supreme Court, Trump, and the Far Right intend to undermine the First Amendment

The Supreme Court recently heard oral arguments whether Oklahoma state tax dollars must be used to fund religious-based charter schools.  The state denied a Catholic Church school’s request for public funding.  During the arguments, most justices seem inclined to require that states provide taxpayer dollars to religious charter schools, if they meet all the other charter school requirements.  If the Court decides to require public funds go to support religious-based charter schools, this would be a fundamental reinterpretation of the 1^st Amendment, what Thomas Jefferson called the “wall of separation” between church and state in his 1802 letter to the Danbury Baptist Association.

I don’t think it a coincidence that a week or so after the Supreme Courts’ arguments, Trump signed an executive order establishing a “Religious Liberty Commission.”  The purpose of the commission is outlined in the instructions:

“The Commission shall produce a comprehensive report on the foundations of religious liberty in America, the impact of religious liberty on American society, current threats to domestic religious liberty, strategies to preserve and enhance religious liberty protections for future generations, and programs to increase awareness of and celebrate America’s peaceful religious pluralism. Specific topics to be considered by the Commission under these categories shall include the following areas: the First Amendment rights of pastors, religious leaders, houses of worship, faith-based institutions, and religious speakers; attacks across America on houses of worship of many religions; debanking of religious entities; the First Amendment rights of teachers, students, military chaplains, service members, employers, and employees; conscience protections in the health care field and concerning vaccine mandates; parents’ authority to direct the care, upbringing, and education of their children, including the right to choose a religious education; permitting time for voluntary prayer and religious instruction at public schools; Government displays with religious imagery; and the right of all Americans to freely exercise their faith without fear or Government censorship or retaliation.”

While the language seems religion neutral, we all know this is about Christian religious freedoms and establishing Christianity as America’s established religion.  I don’t see Islamic or Buddhist or Hindu religious imagery being displayed next to the Ten Commandments at public schools.  Do you?  Be very afraid.   Our founding generation was fearful of the establishment of a religious state.  This fear animated two of Virginia’s most influential writers and thinkers:  James Madison and Thomas Jefferson.  

When Virginia’s General Assembly wanted to impose a ‘religious assessment,’ basically a tax to support churches, Madison and Jefferson opposed the measure.  As did the Baptist’s who suffered intolerable abuse by the Anglican Church prior to the Revolution.  In the “Memorial and Remonstrance Against Religious Assessments” Madison penned a cogent argument that is a relevant today as it was in 1785.  

I think it one of the seminal documents in our history as both Virginians and Americans.  As such, I have summarized Madison’s 15 key arguments below. They are worth a close read.

1.  Religious liberty was “in its nature an unalienable right….because the opinions of men, depending only upon the evidence contemplated by their own minds, cannot follow the dictates of other men….  Religion is wholly exempt from the cognizance [of civil society].”
2. “Since civil society itself had not right to interfere with religion, certainly the legislature, its creature, had no such right.”
3. “It is proper to take alarm at the first experiment on our liberties… Who does no see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same case any particular sect of Christians, in exclusion of all other sects?”
4. “The exercise of religion implies the right to believe in no religion at all, so even the most permissive tax to support religion might violate some consciences.”
5. “Civil magistrates can properly neither judge religious truth nor subordinate religion to public purposes.”
6. The Christian religion did not need civil support, it had often “existed and flourished, not only without the support of human laws, but in spite of every opposition from them.”
7. “’Ecclesiastical establishment,’ far from promoting religious purity and efficacy, had nearly always corrupted and stultified it.”
8. “Rather than promoting order and freedom in civil society, religious establishments had ordinarily been malignant and oppressive.”
9. “The assessment marked a first step toward bigotry, differing from the ‘inquisition…in degree,’ and would make Virginia no longer the asylum for the persecuted.”
10. “Good and useful citizens would be driven from the state or deterred from coming there by a religious tax.”
11. “Religious strife and violence would be encouraged by laws touching religion.”
12. “The policy of the bill is adverse to the diffusion of the light of Christianity…. The bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachment of error.”
13. “An attempt to enforce a religious assessment obnoxious to many citizens would weaken respect for law and order generally.”
14. “Evidence was strong that a majority of the people opposed the assessment.”
15. “Because, finally, the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience is held by the same tenure with all our other rights…. Either we must say, that they may control the freedom of the press, may abolish trial by jury, may swallow up the Executive and Judiciary powers of the State, may that they may despoil us of our very right to suffrage and erect themselves into an independent and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration.”

The Bill did not pass and a year later, Jefferson’s Statute for Religious freedom passed into law.  We must remain vigilant against trespasses against the 1^st Amendment.  It is the cornerstone of why religiosity thrives in America.  It is the absence of state control in public spaces that permits churches, and mosques and synagogues and tabernacles and temples to spread and flourish across this country.