Harris v. Matthews , 361 N.C. 265 ( 2007 )

Justice BRADY

concurring.

I concur fully in the reasoning and result of the majority opinion and join that opinion in its entirety. However, as Joshua and the tribes of Israel were compelled to march around the walls of Jericho as the priests blew the horns, I am compelled to write separately to provide a word of caution: While the metaphor of a “wall of separation between church and state” may fit nicely in a case such as the one sub judice, it is generally a misplaced metaphor that should not occupy such a lofty position in religious freedom jurisprudence. Even a brief review of the exchange between Thomas Jefferson and the Danbury Association of Baptists demonstrates that the metaphor “separation of church and state”⁴ has been wrenched torturously out of context in many circumstances to require “neutrality on the part of government between religion and irreligion.” See Wallace v. Jaffree, 472 U.S. 38, 98 (1985) (Rehnquist, J., dissenting).

Although it is not necessary to extensively discuss this topic, just a brief consideration displays the truth of the statement written by Benjamin Cardozo while sitting on the New York Court of Appeals before his appointment to our nation’s highest court: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.” Berkey v. Third Ave. Ry. Co., 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926). This enslaving of Establishment Clause jurisprudence by a mistaken metaphor ignores the historical fact that “[o]ur Founding Fathers never intended that we utilize the Establishment Clause of the United States Constitution or any. other laws to sterilize our public forums by removing all references to our religious beliefs.” State v. Haselden, 357 N.C. 1, 32, 577 S.E.2d 594, 613 (2003) (Brady, J., concurring) (citations omitted).

HISTORICAL BACKGROUND

The phrase “separation between church and state” appears nowhere in the text of the Constitution or its amendments. However, courts have used it as a basis for a policy of rigid separation, “[notwithstanding the absence of a historical basis for this theory.” Wallace, 472 U.S. at 106 (Rehnquist, J., dissenting). The phrase was first injected into religion clause jurisprudence by the Supreme Court of the United States in Reynolds v. United States, 98 U.S. 145, 164 (1878), a case dealing with a Mormon’s free exercise challenge to a polygamy law. The concept was further elaborated upon in Everson v. Board of Education, 330 U.S. 1, 16 (1947), which concerned public funding of transportation for parochial students. The phrase has since become an integral part of judicial analysis under the religion clauses. However, a review of the history surrounding the phrase “wall of separation between church and state” demonstrates that it should be either discarded or its use restricted to cases such as the one sub judice.

Justice Rehnquist solidly and succinctly set out the historical background of the Establishment Clause in his dissent in Wallace v. Jaffree, and I would not undertake to restate that history here. However, I note, as I have expressed before, that the first Congress authorized the appointment of compensated congressional chaplains only days before approving the final draft of the Bill of Rights. See Haselden, 357 N.C. at 32, 577 S.E.2d at 613-14 (Brady, J., concurring) (citing Marsh v. Chambers, 463 U.S. 783, 788 (1983)). I have previously noted this nation’s history of opening congressional sessions with prayer, providing for chaplains in each branch of our armed forces, and using invocations and benedictions at both state and federal ceremonial installations and inaugurations. Id. at 32, 577 S.E.2d at 614 (Brady, J., concurring) (citations omitted). Additionally, “[t]he United States Congress has provided for the national motto reflecting our religious heritage, ‘In God we trust,’ 36 U.S.C.A. § 302 (West 2001), and has mandated that it ‘shall’ be inscribed onto our currency, 31 U.S.C.A. § 5112(d)(1) (West 2003).” Id. at 32-33, 577 S.E.2d at 614 (Brady, J., concurring). Moreover, this Court and countless other tribunals around the country “open their sessions asking God to save their honorable courts.” Id. at 33, 577 S.E.2d at 614 (Brady, J., concurring). Even before the founding of this nation, the Mayflower Compact demonstrated our early emigrants’ recognition of God’s sovereignty, stating that one purpose of their to-be-formed colony was “Advancement of the Christian Faith.” See Mayflower Compact (1620). Prior to the enactment of the Fourteenth Amendment, many states in the early history of our country had an organized, state-sponsored religion. See Wallace, 472 U.S. at 99, n.4 (Rehnquist, J., dissenting). In fact, North Carolina disestablished the Church of England in its first constitution, displaying its power to establish or disestablish a State church during that period. See John V. Orth, The North Carolina State Constitution with History and Commentary 49 (Univ. of N.C. Press 1995) (1993).

This is certainly not to endorse the establishment of a State church in North Carolina, or any other State for that matter. When the State sets up an official religion and excludes all others from lawful worship, the results are disastrous. See Robert G. Torbet, A History of the Baptists 242-43 (3d ed. 2000) (discussing the “Battle of Alamance,” which occurred in 1771 and the religious oppression of Baptists under Governor Tryon). When courts become involved in ecclesiastical matters, the result is the same as a state established religion — the losing party must submit to the decision of the court under penalty of law without regard to his own personal rights of conscience. To reflect that concern, the North Carolina Constitution provides: “All persons have a natural and inalienable right to worship Almighty God according to the dictates of their own consciences, and no human authority shall, in any case whatever, control or interfere with the rights of conscience.” N.C. Const, art. I, § 13. That states were free to establish and disestablish religion during the early periods of our country clearly demonstrates that a strict “neutrality on the part of government between religion and irreligión” was never intended by our Founding Fathers. Wallace, 472 U.S. at 98 (Rehnquist, J., dissenting).

Many of our Presidents, such as George Washington and Abraham Lincoln, have chosen to include scriptural readings in their inaugural speeches. See Richard Land, The Divided States of America? 84-87 (2007) (collecting quotes of scripture from presidential inaugurations). President Washington recognized the need for religion and morality in the young country. In his “farewell address” to the nation, he eloquently stated:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked, Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?

George Washington, Farewell Address (Sept. 19, 1796).

ANALYZING THE TEXT OF THE LETTER

Viewing the correspondence of the exchange between the Danbury Association of Baptists and Thomas Jefferson by focusing on the context surrounding the “wall of separation” metaphor sheds extensive light on its meaning. The Association feared that its members would suffer because of their minority beliefs. Moreover, the members of the Association were concerned that those “who seek after power & gain under the pretence of government & Religion should reproach their fellow men” and would also “reproach” President Jefferson “because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.” Letter from the Danbury Baptist Association to Thomas Jefferson (Oct. 7, 1801), in Daniel L. Dreisbach, Thomas Jefferson and the Wall of Separation between Church and State 31 (2002) [hereinafter Dreisbach, Wall of Separation]. Thus, the Association was concerned about governmental regulation in the sphere of religion. In a thoughtfully considered and eloquently penned response, Jefferson wrote to the Association:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State ....

Letter from Thomas Jefferson to the Danbury Baptist Association (Jan. 1, 1802), in Dreisbach, Wall of Separation 48. Thus, in response to the Association’s fears of persecution and government intermeddling with the affairs of the Church, Jefferson merely assured them that his position was that the First Amendment would not allow Congress to do so.

The “wall of separation” metaphor should only be used, if at all, in cases such as the one sub judice. In other words, the gate to the “wall of separation” only swings one way, locking the government out of ecclesiastical matters. Because no religious right is more precious than the right to form one’s own religious opinions without interference from the civil government, I concur fully in the Court’s opinion.

4 . This metaphor, however, does not have its origins in Jefferson’s letter. Roger Williams, a prominent 17th Century religious figure, wrote that the Old Testament “Church of the Jews” and the New Testament Church

were both separate from the world; and that when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wildemes of the world, God hath ever broke down the wall it selfe, removed the Candlestick, &c. and made his Garden a Wildemesse, as at this day.

Roger Williams, Mr. Cotton’s Letter Lately Printed Examined, and Answered 108 (London 1644), reprinted in 1 The Complete Writings of Roger Williams (1963). “Although Williams [’s] principal concern in the separation of church and state was to preserve the church from worldly contamination, he also believed that government suffered when diverted from its proper functions by the church.” Edmund S. Morgan, Roger Williams: The Church and the State, 118 (1967).