A. Complaint in Article:
As referenced in the ad, John Jay did write a letter in which he declared it “the duty, as well as the privilege and interest of our Christian nation, to select and prefer Christians for their rulers.” This reminds us that, along with their visionary striving for human rights, many of the Founders were tainted with the prejudices of their times. Fortunately, they got it right in Article VI of the Constitution: “[N]o religious test shall ever be required as a qualification to any office or public trust under the United States.” Otherwise, presumably with the blessing of Hobby Lobby’s owners, we’d have told Rep. Eric Cantor and Sen. Joseph Lieberman, “Sorry, you need not apply.” 1
Founding Father John Jay (author of the Federalist Papers and the original Chief Justice of the U. S. Supreme Court) did indeed declare:
Providence has given to our people the choice of their rulers, and it is the duty (as well as the privilege and interest) of our Christian nation to select and prefer Christians for their rulers. 2
The claim that choosing a leader on the basis of his faith is a direct violation of Article VI in the Constitution is flat wrong. The Founders made clear that the Article VI prohibition was an explicit limitation only on the powers of the federal government, not on those of citizens. As Supreme Court Justice Joseph Story affirmed: “it [Article VI] was deemed advisable to exclude from the national government all power to act upon the subject.” 3 The Founders believed that an investigation of the religious views of a candidate was appropriate if undertaken by the voters, but not by the federal government.
Justice Theophilus Parsons, a ratifier of the federal Constitution, succinctly explained:
It has been objected that the Constitution provides no religious test by oath and [that] we may have in power unprincipled men, atheists, and pagans. No man can wish more ardently than I do that all our public offices may be filled by men who fear God and hate wickedness [Exodus 18:21], but it must remain with the electors to give the government this security. . . . [T]he only evidence we can have of the sincerity and excellency of a man’s religion is a good life, and I trust that such evidence will be required of every candidate by every elector. 4
Signer of the Constitution Richard Dobbs Spaight agreed:
I do not suppose an infidel or any such person will ever be chosen to any office unless the people themselves be of the same opinion. 5
Therefore, while the federal government is explicitly prohibited from investigating anyone’s religious views, it is completely constitutional for voters to do so. As one court explained in 1837:
The distinction is a sound one between a religion preferred by law, and a religion preferred by the people without the coercion of law – between a legal establishment (which the present Constitution expressly forbids) . . . and a religious creed freely chosen by the people for themselves. 6
Article VI limits only the power of the federal government, not the power of the people.
[Personal note from David Barton: Perhaps a more accurate modern translation for the intent of Jay’s statement would be that it is the duty of Christians to select and prefer for office those who hold a Biblical viewpoint. Quite frankly, many Jews, such as Rabbis Daniel Lapin and Aryeh Spero, are much more Biblically aligned in their values and principles than many so-called Christians; and I would personally work hard to elect them to office over many professing Christians. In fact, one hundred percent of the time I would vote for traditional-Biblical-value Jew Eric Cantor over anti-traditional-Biblical-value Christian Barack Obama, and I think John Jay would have done the same. But that being said, the choice is still every individual’s to make; the people have the constitutional right, unaffected by Article VI, to use whatever test they wish in the selection of their leaders, including a personal religious test – as many Muslims, Jews, and atheists also do every time they vote.]
B. Complaint in Article:
The Hobby Lobby ad grossly distorts the sense of the court’s ruling in Vidal v. Girard’s Executors (1844) by strategically altering a key word. Here’s how the ad quotes the decision: “Why may not the Bible, and especially the New Testament, be read and taught as a divine revelation in [schools]?” This, the ad explains, was from a “Unanimous Decision Commending and Encouraging the Use of the Bible in Government-Run Schools.” Far from it. The ad misquotes, substituting “schools” for the true wording in the decision, which was “the college”–specifically, Girard College. The real story: Multimillionaire Stephen Girard bequeathed property to the city of Philadelphia, intending to set up a school for poor orphans. His will stipulated:
“I enjoin and require that no ecclesiastic, missionary, or minister of any sect whatsoever shall ever hold or exercise any station or duty whatever in the said college, nor shall any such person ever be admitted for any purpose, or as a visitor, within the premises. [M]y desire is that all the instructors and teachers in the college shall take pains to instill into the minds of the scholars the purest principles of morality, so that, on their entrance into active life, they may, from inclination and habit, evince benevolence towards their fellow creatures and a love of truth, sobriety, and industry, adopting at the same time such religious tenets as their matured reason may enable them to prefer.”
Clearly, Girard opposed using his charitable school to promote any specific religious faith. Girard’s heirs contested the will on grounds that Philadelphia couldn’t legally take this property in trust. That’s the issue the court was deciding, and it ruled for Girard and his will. The opinion discusses religious training not in order to rule in its favor in “schools” but to show that Girard’s will couldn’t be shown to have “impugned or repudiated” Christianity in endowing his “college.” Supreme Court decisions are full of such explanatory comments. The ones cited in the Hobby Lobby ad aren’t “Declaring America a Christian Nation” any more than Oliver Wendell Holmes Jr. made Nazi-style eugenics into official public policy with his infamous conclusion “Three generations of imbeciles are enough” in Buck v. Bell (1927). 7
First, the word “college” is indeed used in the original Court ruling; and Girard “college” still exists today, training children from grades one through twelve. So Girard “college” is actually not a “college” in the modern sense that the word is used today, but by today’s standards it is rather a pre-secondary “school” – an elementary, junior high, and high school, but it is not a college as understood today. Therefore, the use of the word “[school]” in place of the word “college” accurately reflects the object of the Court’s declaration and correctly portrays its intent.
Secondly, the Court did rule – definitively and unanimously so – in favor of religious instruction in this government-administered school run by the City of Philadelphia. As the Court announced:
It is unnecessary for us, however, to consider what would be the legal effect of a devise in Pennsylvania for the establishment of a school or college for the propagation of Judaism, or Deism, or any other form of infidelity. Such a case is not to be presumed to exist in a Christian country. 8
This is a forthright declaration by the Court strongly endorsing that some form of religious education (i.e., what the Court described as “Divine revelation”) must indeed be taught at the school, and that some “form of infidelity” (i.e., lack of religious instruction) was not to be part of this government-administered education.
C. Complaint in Article
In Church of the Holy Trinity v. U.S. (1892), the issue to be decided wasn’t the religious affiliation of the U.S.; it was whether a U.S. church had the right to hire a pastor from outside the country, in spite of a federal law barring any employer from recruiting foreign workers. Its remarks about the prevalence of Christianity were to show that Congress did not intend that its labor law be used to prevent a congregation from choosing its own pastor. 9
In the 1892 U. S. Supreme Court decision Church of the Holy Trinity v. United States is found this succinct statement:
[N]o purpose of action against religion can be imputed to any legislation, state or national because this is a religious people. . . . [T]his is a Christian nation.” 10
Critics assert that this forthright declaration is historically irrelevant because it is not part of the Court’s actual ruling on the employment issue. However, a quick review of the short sixteen-page ruling in this case unequivocally refutes this assertion.
At issue in the case was an 1885 federal immigration law declaring:
[I]t shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever to . . . in any way assist or encourage the importation . . . of any alien or . . . foreigners into the United States . . . under contract or agreement . . . to perform labor or service of any kind. 11
This law appeared to be a straightforward ban on hiring foreign labor. So when the Church of the Holy Trinity in New York employed a clergyman from England as its pastor, the U. S. Attorney’s office brought suit against the church. The Supreme Court examined the issue and then rendered a unanimous ruling.
In the first eight pages of the ruling, the Court established that the law’s sole purpose had been to halt the influx of almost slave-like Chinese foreign labor being exploited to construct the western railroads, not limit the hiring of foreigners in general. Therefore, while the church’s hiring of the minister had violated the literal wording of the law, the law clearly had not been designed to affect the hiring of a pastor. The Court therefore held that it would be an absurd application of the law to prosecute the church for hiring a minister of its choice, and then explained that if the intent of the law had been to prevent the church from hiring a minister, then the law would have been unconstitutional.
To show why any law restricting the church would have been unconstitutional, in the final eight pages of its ruling the Court systematically reviewed scores of historical precedents to show that America was indeed a Christian nation; and since it was a Christian nation, then any law that would hinder the spread or propagation of Christianity would be unconstitutional. 12 After citing those precedents, including several previous judicial holdings declaring America to be a Christian nation, 13 the Court then concluded:
There is no dissonance in these declarations. There is a universal language pervading them all, having one meaning; they affirm and reaffirm that this is a religious nation. These are not individual sayings – declarations of private persons: they are organic [legal, governmental] utterances; they speak the voice of the entire people. . . . These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation. 14
According to the Court, the employment issue was closed because America was a Christian nation, so the Christian nation declaration was central to the Court’s ruling on the employment/hiring issue.
4. Theophilus Parsons, Memoir of Theophilus Parsons (Boston: Ticknor and Fields, 1859), pp. 97-98. See also The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor (Washington: Jonathan Elliot, 1836), Vol. II, pp. 107-108, Theophilus Parsons, Massachusetts, January 23, 1788.
5. The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Jonathan Elliot, editor (Washington: Jonathan Elliot, 1836), Vol. IV, p. 208, Richard Dobbs Spaight, North Carolina, July 30, 1788.