Mirror of Justice

I just read James S. Kabala's Church-State Relations in the Early American Republic, 1787-1846 (2013). I recommend it; it recounts lots of interesting details and debates which Kabala presents very effectively. The book's general theme is that the unsettled quality of the relationship between church and state in our own time is not new, but part of an ongoing unsettled history whose roots may be traced to the founding and which persisted thereafter.   

Here's a bit from the introduction:

[P]resent-day believers that the United States was founded on Christian principles often claim the Founding Fathers for their cause, while advocates of church-state separation often presume that the issue was a settled matter after the ratification of the First Amendment in 1791.  This book will complicate such assumptions by exploring sixty years of contentious debate in American civic culture over the proper role of religion in public life.  Between the 1780s and the 1840s, clergymen, legislators, jurists, and pamphleteers argued over whether the government could fund Christian missionaries, whether the government should proclaim fast and Thanksgiving days, whether it was proper for Christians to pledge to vote only for Christian candidates, whether there should be religious restrictions on who could serve in public office or testify in court, whether blasphemy prosecutions were legitimate, whether public schools could offer a religious curriculum, whether state legislatures should open each day's session with prayer and many more such issues.  Instances of the government's long-standing entanglement with religion, such as the funding of religiously affiliated schools among the Indian tribes, can seem startling today.  In other areas, however, separation between religion and government was more strongly enforced than today.  The mail was delivered on Sundays, and a nationwide petition campaign to end this practice caused a strong backlash.  Several state legislatures, at least for a time, abolished the position of chaplain and the practice of opening each day's sessions with prayer.  In short, debate over the proper relationship between religion and government was as divisive two hundred years ago as it is today and involved people from all denominations, parties and regions.

Kabala's focus is not on the First Amendment but on the more general issue of church state relations. Recognizing "the heavy entanglement of the federal government with religion in this period," he favors the federalism interpretation of well-known episodes such as Andrew Jackson's refusal to proclaim a day of fasting in 1832 and others.

An interesting later chapter entitled "The Limits of Consensus: The Unorthodox in the Court System," deals in part with the issue of whether Christianity was part of the common law (a view consistently denied by Jefferson).  One of the final episodes that Kabala recounts involves a Supreme Court case, Vidal v. Girard's Executors (1844), which dealt with a rather eccentric French-born resident of Philadelphia who had become extremely wealthy.  The man had been raised a Catholic and had made occasional contributions to Catholic institutions, but his own religious convictions were not clear (apparently, he was a shipping magnate who had given his ships somewhat suspicious names like "Voltaire" and "Rousseau").  He died in 1831 and his will established a school for orphans.  But the will also provided that "no ecclesiastic, missionary, or minister, or any sect whatever" should ever set foot in the school because "as there is such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans who are to derive advantage from this bequest free from the excitement which clashing doctrines and sectarian controversy are so apt to produce."  Instead, the teachers at the orphanage were to "take pains to instill into the minds of the scholars the purest principles of morality," and these noble ambitions demanded the purging of religion.  The will was contested by Girard's relatives (who were represented by Daniel Webster) and eventually the case made its way to the Court.  Here is Kabala's description (p.149):

[I]n his oration before the court, [Webster] endorsed the idea that the only true charity was a Christian charity.  According to Webster, Girard's school was a school of 'mere, sheer, low, ribald, vulgar deism and infidelity'....Webster cited both blasphemy cases and restrictions on oath-takers as evidence of his claims that Christianity was part of the common law and that the health of society depended upon religious faith.  He did, however, take pains to assert that his was a non-sectarian Christianity, 'general, tolerant Christianity, Christianity independent of sects or parties, that Christianity to which the sword and the fagot are unknown.'

Many hailed Webster's oration before the court as a masterpiece....Joseph Story, by now the senior Associate Justice on the court, was less impressed with it.  He wrote to his wife that he was

not a little amused with the manner in which...the language of the Scriptures, and the doctrines of Christianity, were brought in to point the argument; and to find the Court engaged in hearing homilies of faith, and expostulations of Christianity.

Story eventually wrote an unanimous opinion for the court upholding Girard's will as valid....He later wrote to James Kent, who despite his hostility toward blasphemers and atheists had written to Story supporting his decision, that Webster's speech had been a mere 'address to the prejudices of the clergy.'

However, Story's opinion, while it upheld Girard's will, was not a repudiation of the idea that Christianity was a part of the common law.  Rather, Story explicitly endorsed the belief 'that the Christian religion is a part of the common law of Pennsylvania.' The rest of the decision attempted to enunciate the Protestant non-sectarian consensus as it had developed by 1844, guaranteeing the privileged position of Christianity while preserving the right of polite disagreement from it.