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The Church Historians Who made the First Amendment What it is Today

Published online by Cambridge University Press:  18 June 2018

Donald L. Drakeman
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Abstract

Thomas Jefferson and James Madison are frequently identified as the framers of the religion clauses in the First Amendment, thus making their efforts to establish religious freedom in colonial Virginia relevant to the Constitution's meaning. This interpretive approach first appeared in a Supreme Court opinion in 1878 when Chief Justice Morrison Waite applied the religion clauses to the case of a Mormon official prosecuted under a federal antipolygamy law. For historical background, Justice Waite studied books by church historians Robert Reid Howison and Robert Baylor Semple. There, he encountered narratives of the political activism of the Baptists and Presbyterians who, in conjunction with the efforts of Madison and Jefferson, were responsible for Virginia's statutory commitment to religious freedom. The Chief Justice then grafted Madison's Memorial and Remonstrance against Religious Assessments and Jefferson's now-famous “wall of separation” letter onto the Constitution's bare text, an emendation that has endured for well over a century. Church historians Semple and Howison, and the pivotal role they played in the foundation of First Amendment jurisprudence, have been essentially lost from the historiographical record of church-state relations in America, a situation this article seeks to remedy.

Type
Research Article
Information
Religion and American Culture , Volume 17 , Issue 1 , Winter 2007 , pp. 27 - 56
Copyright
Copyright © Center for the Study of Religion and American Culture 2007

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References

Notes

I am grateful for assistance from Isaac Choi, Tom Clark, Nicole Davida, Cindy Drakeman, Barbara Sorgento, and Eric Yun in the preparation of this article.

1. See Shipps, Jan, Mormonism: The Story of a New Religious Tradition (Urbana: University of Illinois Press, 1985 Google Scholar), who notes that “[b]ecause it was originally issued in the form of a press release declaring that accusations charging the LDS church leaders with continuing to teach, encourage, and urge the practice of polygamy were false, the Manifesto has often been treated as Exhibit A to prove that the decision to end polygamy was simply a matter of accommodating the church to American culture. The orthodox LDS position rejects this notion out of hand, holding instead that [Mormon President] Woodruff's action was divinely inspired.” Shipps, 184, n. 6. See also Flake, Kathleen, The Politics of American Religious Identity: The Seating of Senator Reed Smoot, Mormon Apostle (Chapel Hill: University of North Carolina Press, 2004 Google Scholar), who focuses on the role played by the Senate's consideration of seating Smoot in the “Mormon abandonment— in deed in 1906, not merely in word in 1890—of polygamy.” Ibid., 8.

2. See, for example, Gaustad, Edwin S., “Thomas Jefferson, Religious Freedom, and the Supreme Court,” Church History 67 (December 1998): 682 CrossRefGoogle Scholar.

3. Reynolds v. United States, 98 U.S. 145 (1878). For a detailed review of the Waite-Bancroft communications concerning the Reynolds case, see C. Peter Magrath, “Chief Justice Waite and the Twin Relic: Reynolds v. United States,” Vanderbilt Law Review 18 (1965): 526–27. Bancroft's advice to Waite came on December 2, 1878. Ibid., 526, citing “Bancroft to Waite, Dec. 2, 1878” from Waite's papers, Library of Congress Manuscript Division (hereafter referred to as the Waite Papers).

4. Howison, Robert R., History of Virginia from Its Discovery and Settlement by Europeans to the Present Time, 2 vols. (Richmond: Drinker and Morris, 1848 Google Scholar) (all references herein are to the second volume); Semple, Robert B., A History of the Rise and Progress of the Baptists in Virginia (Richmond: published by the author, 1810 Google Scholar).

5. Thomas Curry, for example, writes, “Many of the enduring statements about religious liberty were written by those who were … influenced greatly by Enlightenment thinking. However, it was the American religious and evangelical background of religious liberty that made the American experience of it unique.” Curry, Thomas J., Farewell to Christendom: The Future of Church and State in America (New York: Oxford University Press, 2001), 133 CrossRefGoogle Scholar, n. 1.

6. See, for example, Buckley, Thomas E., Church and State in Revolutionary Virginia, 1776–87 (Charlottesville: University Press of Virginia, 1977 Google Scholar) and the works cited therein; Isaac, Rhys, The Transformation of Virginia, 1740–1790 (Chapel Hill: University of North Carolina Press, 1982 Google Scholar); Peterson, Merrill D. and Vaughan, Robert C., eds., The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History (Cambridge: Cambridge University Press, 1988 Google Scholar); Sheldon, Garrett Ward and Dreisbach, Daniel L., eds., Religion and Political Culture in Jefferson's Virginia (Lanham, Md.: Rowman and Littlefield Publishers, 2000 Google Scholar); and numerous others.

7. Wilson, John F., ed., Church and State in America: A Bibliographical Guide: The Colonial and Early National Periods (New York: Greenwood Press, 1986 Google Scholar). Semple is mentioned in Leigh Eric Schmidt, “Church-State Relations in the Colonial South,” in Church and State, ed. Wilson, 75–114. Semple and Howison are also absent from Wilson, John F., Church and State in America: A Bibliographical Guide: The Civil War to the Present Day (Westport, Conn.: Greenwood Press, 1987)Google Scholar.

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12. Permoli v. Municipality No. 1 of the City of New Orleans, 44 U.S. 589, 609 (1845). The case involved an ordinance stating that “it shall be unlawful to carry to, and expose in, any of the Catholic churches of this municipality, any corpse.”

13. See Cantwell v. Connecticut, 310 U.S. 296 (1940). Although the establishment clause has been consistently applied to state actions for the last fifty years, Justice Thomas has recently suggested that “the Clause's text and history ‘resist incorporation’ against the States. See Elk Grove Unified School District v. Newdow, 542 U.S. 1, 46 (2004).” Van Orden v. Perry, No. 03–1500 (June 27, 2005).

14. See Sarah Gordon, Barringer, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 2002)Google Scholar; and Magrath, “Twin Relic.”

15. Reynolds, 162.

16. Ibid.

17. Ibid., 163.

18. Ibid.

19. Ibid. For an analysis of how Jefferson's Statute for Religious Freedom was employed in nineteenth-century Virginia as various churchstate issues arose, see Buckley, Thomas E., “The Use and Abuse of Jefferson's Statute: Separating Church and State in Nineteenth-Century Virginia,” in Religion and the New Republic: Faith and the Founding of America, ed. Hutson, James H. (Lanham, Md.: Rowman and Littlefield, 2000), 41–68 Google Scholar.

20. Reynolds, 163.

21. Ibid.,164.

22. Dreisbach, Daniel L., Thomas Jefferson and the Wall of Separation between Church and State (New York: New York University Press, 2002), 96 Google Scholar.

23. Reynolds, 164.

24. Ibid. The “wall of separation” approach to interpreting the establishment clause has created considerable controversy. See the sources cited in Dreisbach, Thomas Jefferson and the Wall. See also a recent debate over the origins of Jefferson's letter engendered by the use of the FBI's laboratory tools to analyze Jefferson's original draft language. James H. Hutson, “Thomas Jefferson's Letter to the Danbury Baptists: A Controversy Rejoined,” William and Mary Quarterly, 3d Ser., 56 (October 1999): 775–90. Hutson argues that “Jefferson's principal motive in writing the Danbury Baptist letter was to mount a political counterattack against his Federalist enemies,” a conclusion subsequently attacked in a press release issued by Americans United for Separation of Church and State listing numerous scholars who preferred to see the Danbury letter as a statement of pure principle. Hutson, “Thomas Jefferson's Letter,” 776–77. For additional background on the Danbury letter, see Dreisbach, Daniel L., “Thomas Jefferson, a Mammoth Cheese, and the ‘Wall of Separation Between Church and State,’” in Religion and the New Republic, ed. Hutson, , 65–114 Google Scholar. See also Dreisbach, Daniel L., “Thomas Jefferson and the Danbury Baptists Revisited,” William and Mary Quarterly, 3d Ser., 56 (October 1999): 805–16.CrossRefGoogle Scholar

25. Reynolds, 166.

26. Ibid., 165.

27. Ibid.

28. Ibid, 166.

29. Bancroft, George, History of the United States from the Discovery of the Continent, 10 vols. (Boston: Little, Brown and Co., 1834–1875 Google Scholar); Bancroft, George, History of the Formation of the Constitution of the United States, 2 vols. (New York: D. Appleton and Co., 1882 Google Scholar; repr., 1903).

30. For biographical information, see DeWolfe Howe, M. A., The Life and Letters of George Bancroft, 2 vols. (New York: Charles Scribner's Sons, 1908 Google Scholar); and Nye, Russell B., George Bancroft: Brahmin Rebel (New York: Alfred A. Knopf, 1945 Google Scholar).

31. Bancroft, History of the United States, 9:274. Bancroft subsequently notes that “it was from [Presbyterian John] Witherspoon of New Jersey that Madison imbibed the lesson of perfect freedom in matters of conscience.” Ibid., 278. More recently, Jeffry Morrison has observed that “at least two recurring themes in Witherspoon's church-state teaching seem to have implanted themselves permanently in [Madison’s] mind. The first was a robust notion of religious liberty; the second was a political realism [with a] skeptical view of human nature.” Morrison, Jeffry H., John Witherspoon and the Founding of the American Republic (Notre Dame: University of Notre Dame Press, 2005), 38–39 Google Scholar.

32. Schaff, Philip, History of the Christian Church, rev. ed. (New York: Charles Scribner's Sons, 1910 Google Scholar), preface.

33. It appears that Waite spoke directly to Bancroft about this issue; as Magrath notes, “there is no Waite to Bancroft letter in the file of outgoing correspondence which is complete for this period.” Magrath, “Twin Relic,” 526, n. 90.

34. Magrath, “Twin Relic,” 526, citing “Bancroft to Waite, Dec. 2, 1878” from the Waite Papers. See also Trimble, Bruce R., Chief Justice Waite: Defender of the Public Interest (Princeton: Princeton University Press, 1938), 244–45;Google Scholar and Peter Magrath, C., Morrison R. Waite: The Triuimph of Character (New York: Macmillan, 1963). 35 Google Scholar. Magrath, “Twin Relic,” 527, citing “Waite to Bancroft, Jan. 4, 1879. Massachusetts Historical Society.” Two weeks later, Waite sent a copy of his opinion to Bancroft with a note reading, “As you gave me the information on which the judgment in the Utah Polygamy case rests, I send you a copy of the opinion that you may see what use has been made of your facts.” Waite to Bancroft, January 17, 1879, in the Waite Papers (transcript by Ernest J. Emrich, Library of Congress, December 2, 2003). See also Magrath, “Twin Relic,” 103.

36. Princeton Review 11 (April 1848): 187. Other reviews were less generous. One reviewer complained that Howison's first volume was reliable but largely derivative of the work of others. Southern and Western Literary Messenger and Review 13 (January 1847): 14. The second volume received higher marks, especially for its discussion of church-state issues in Virginia and for the section where “Mr. Howison very concisely, but forcibly, presents to our notice the part which Virginia took in the formation and adoption of the Federal Constitution.” Southern Literary Messenger 14 (June 1848): 341.

37. Howison, , History of Virginia, 298 Google Scholar.

38. Ibid., 489. He continues, “No Church in the United States has sustained more real injury because of its contact with the State than the Episcopal.” Ibid.

39. Ibid., 296.

40. Ibid.

41. For biographical information about Howison, I am indebted to Trina Stephens, “Twice Forty Years of Learning: An Educational Biography of Robert Reid Howison (1820–1906)” (Ph.D. diss., Virginia Tech, 1988).

42. Ibid., 98.

43. Ibid., 120–24. In a 2001 law review article on antidueling laws in antebellum America, C. A. Harwell Wells cites Howison's “Dueling in Virginia” article several times, noting that Howison “was a witness to many duels and related to several famous duelists.” C. A. Harwell Wells, “The End of the Affair? Anti-Dueling Laws and Social Norms in Antebellum America,” Vanderbilt Law Review 54 (2001): 1807. Howison's, article is “Dueling in Virginia,” William and Mary Quarterly, 2d Ser., 4 (October 1924): 217–44;CrossRefGoogle Scholar it was published after his death.

44. George L. Christian, “Reminiscences of Some of the Dead of the Bench and Bar of Richmond,” Virginia Law Register 14 (February 1909): 747.

45. Ibid.

46. While Howison suggests that the Presbyterians were united on the subject, at least one Baptist historian made a point of noting that “there was wavering among the Presbyterian clergy in [the] fight over the assessment.” James, Charles F., Documentary History of the Struggle for Religious Liberty in Virginia (Lynchburg: J. P. Bell Co., 1900), 131 Google Scholar. The Baptists may have a more accurate recollection than Howison does. See Buckley, , Church and State in Revolutionary Virginia, 94–97 Google Scholar.

47. Howison, , History of Virginia, 297 Google Scholar.

48. Ibid., 298–99. For more modern discussions of Jefferson's religiosity, see Buckley, Thomas E., “The Religious Rhetoric of Thomas Jefferson” in The Founders on God and Government, ed. Dreisbach, Daniel L., Hall, Mark D., and Morrison, Jeffry H. (Lanham, Md.: Rowman and Littlefield, 2004 Google Scholar); Gaustad, Edwin S., Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (Grand Rapids: William Eerdmans, l996 Google Scholar); and Hutson, “Thomas Jefferson's Letter,” 785–89.

49. Howison, , History of Virginia, 299 Google Scholar.

50. Ibid.

51. Ibid., 298–99. Howison was not alone in claiming denominational credit for Jefferson's statute. Philip Hamburger notes that, in the late nineteenth century, “Americans often took Jefferson to be the author of American religious liberty, and therefore different denominations claimed that he had borrowed the idea of separation from them.” Hamburger, Philip, Separation of Church and State (Cambridge: Harvard University Press, 2002), 350 Google Scholar. The battle to take credit for America's dedication to the separation of church and state was fought in a variety of quarters. In the middle of the nineteenth century, Robert Baird wrote, “A very general impression prevails in England, and perhaps elsewhere, that the entire separation of church and state in America was the work of Mr. Jefferson… . [Jefferson] was a very bitter enemy to Christianity, and we may assume that he wished to see not only the Episcopal Church separated from the State in Virginia, but the utter overthrow of everything in the shape of a church throughout the country. Still, it was not Jefferson that induced … Virginia to pass the Act of Separation. That must be ascribed to the … efforts of the Presbyterians and Baptists.” Baird, Robert, Religion in America (New York: Harper and Brothers, 1856), 215 Google Scholar.

52. See Howison, , History of Virginia, 296 Google Scholar.

53. See, for example, Hamburger, Separation of Church and State, and Curry, Farewell to Christendom.

54. Howison, 489–90.

55. Ibid., 298–99. For further discussion of this controversy, see Thomas E. Buckley, “After Disestablishment: Thomas Jefferson's Wall of Separation in Antebellum Virginia,” Journal of Southern History 61 (August 1995): 445–80. Buckley, who calls Howison's History of Virginia a “reliable contemporary view of Virginia's religious situation in the 1840s,” describes Howison as someone who could offer a “first hand account” of the Virginia incorporation controversy. Buckley, “After Disestablishment,” 445, 446, 458. A reviewer in the Southern Churchman complained that Howison's remarks were unfair to the Episcopal church, prompting Howison to respond “that he had personal friends in the Episcopal Church and he intended no sectarian spirit.” Stephens, “Twice Forty Years,” 71.

56. Howison, , History of Virginia, 491 Google Scholar.

57. R. R. Howison, “Parochial Schools: Ought Our Church Attempt to Establish Them?” Central Presbyterian (Richmond, Va.) 34 (March 1, 1899): 3.

58. Ibid.

59. Ibid.

60. Ibid.

61. Semple, , History of the Rise and Progress of the Baptists in Virginia, 11 Google Scholar.

62. Taylor, James B., Lives of Virginia Baptist Ministers (Richmond, Va.: Yale and Wyatt, 1838), 271–72Google Scholar, quoted in Reginald S. Mills, “Robert Baylor Semple: A Study in Baptist Denominational Development, 1790–1831” (Ph.D. diss., Southern Baptist Theological Seminary, 1986), 77–78. Most of what we know about Semple can be traced back to Taylor's early work.

63. Joe Madison King, “Introduction,” in Semple, Robert Baylor, History of the Rise and Progress of the Baptists in Virginia, rev. ed. (New Orleans: Polyanthos, 1972 Google Scholar). See also Cathcart, William, ed., The Baptist Encyclopedia (Philadelphia: Louis H. Everts, 1881), 1040–41Google Scholar. Cathcart indicates that Semple declined the D.D. degree from Brown as well as one from the College of William and Mary.

64. Mills, “Robert Baylor Semple,” 146–52.

65. Everson v. United States, 330 U.S. 1, 13 (1947). The 1894 edition is Semple, Robert Baylor, A History of the Rise and Progress of the Baptists in Virginia, rev. and extended by Beale, G. W. (Richmond: Pitt and Dickson, 1894 Google Scholar).

66. “Introduction,” Semple (1972 edition).

67. Semple, , History of the Rise and Progress of the Baptists in Virginia, 26–27 Google Scholar.

68. Ibid., 26.

69. Ibid., 33.

70. Gales and Seaton, eds., Annals, 1:949–50.

71. For a discussion of the variety of church-state relationships in America during the colonial and Revolutionary eras, see Curry, Thomas J., The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986 Google Scholar). See also John Witte, Jr., “‘A Most Mild and Equitable Establishment of Religion’: John Adams and the Massachusetts Experiment,” in Religion and the New Republic, ed. Hutson, 1–40.

72. For another view, see Michael W. McConnell, “The Origins and Historical Understanding of Free Exercise of Religion,” Harvard Law Review 103 (May 1990): 1409–1517.

73. See, for example, Jefferson Powell, H., “The Original Understanding of Original Intent,” in Interpreting the Constitution, ed. Rakove, Jack N. (Boston: Northeastern University Press, 1990), 53–115 Google Scholar; and Wofford, John G., “‘The Blinding Light’: The Uses of History in Constitutional Interpretation,” University of Chicago Law Review 31, no. 3 (1964): 502 CrossRefGoogle Scholar.

74. Terrett v. Taylor, 13 U.S. 43, 50 (1815). The “maxims of eternal justice,” according to the Court, appeared to provide that “the division of an empire creates no forfeiture of previously vested rights.”

75. Story, Joseph, Commentaries on the Constitution of the United States, vol. 2 (Boston: Charles C. Little and James Brown, 1851), 591 Google Scholar.The other major legal commentator of the time, Thomas Cooley, wrote primarily about “constitutional limitations which rest upon the legislative power of the states” and rarely referenced federal power. He also made generally laudatory comments about Story's Commentaries. Cooley, Thomas M., A Treatise on the Constitutional Limitations which Rest upon the Legislative Power of the States of the American Union, 4th ed. (Boston: Little, Brown and Co., 1878), 586–87.Google Scholar

76. See Magrath, , Triumph, 31 Google Scholar.

77. Story, Commentaries, 591. 78. Joel Tiffany, A Treatise on Government and Constitutional Law (Albany: W. C. Little, 1867), 393–94.

79. Ibid., 393.

80. Paschal, George W., The Constitution of the United States Defined and Carefully Annotated (Washington, D.C.: W. H. & O. H. Morrison, 1868)Google Scholar.

81. Ibid., 254.

82. Pomeroy, John Norton, An Introduction to the Constitutional Law of the United States (New York: Hurd and Houghton, 1868 Google Scholar); Rawle, William, A View of the Constitution of the United States of America, 2d ed. (Philadelphia: Philip H. Nicklin, 1829 Google Scholar).

83. King, John, A Commentary on the Law and True Construction of the Federal Constitution (Cincinnati: Robert Clark and Co., 1871), 322–23Google Scholar.

84. Farrar, Timothy, Manual of the Constitution of the United States of America, 3d ed. (Boston: Little, Brown and Co., 1872), 286–87Google Scholar.

85. On the subject of “law office history,” Philip Kurland writes, “Care must be taken that the so-called history is not what historians properly denounce as ‘law office history,’ written in the way brief writers write briefs, by picking and choosing statements and events favorable to the client's cause.” Kurland, Philip B., “The Origins of the Religion Clauses of the Constitution,” William and Mary Law Review 27 (1985–1986): 839, 842Google Scholar. John Phillip Reid has coined the term “forensic history” for cases in which judges employ history “not to learn about the past, but merely to support an outcome… . In almost every instance when history is employed, the decision has already been formulated. Unprofessional history is used to explain the decision, to make the decision more palatable, or, in most cases, to justify the decision.” John Phillip Reid, “Law and History,” Loyola Los Angeles Law Review 27 (1993–1994): 192, 204.

86. See, for example, this interplay among three commentators on establishment clause history: Leo Pfeffer wrote extensively in support of the “wall of separation” approach to church-state issues, leading Robert L. Cord to write: “I believe that Professor Pfeffer, and those who subscribe to his views, are in error” because “there appears to be no historical evidence that the first amendment was intended to preclude governmental aid to religion when it was provided on a nondiscriminating basis.” Cord's commentary prompted Leonard Levy to call Cord's book “[m]ostly historical fiction masquerading as scholarship.” See Pfeffer, Leo, Church, State, and Freedom (Boston: Beacon Press, 1967 Google Scholar); Cord, Robert L., Separation of Church and State: Historical Fact and Current Fiction (New York: Lambeth Press, 1982), 15, 19–20Google Scholar; and Levy, Leonard W., The Establishment Clause: Religion and the First Amendment (New York: Macmillan, 1986), 221 Google Scholar.

87. Magrath, , Triumph, 305–6.Google Scholar

88. See Higham, John, Strangers in the Land: Patterns of American Nativism, 1860–1925 (New York: Atheneum, 1973), 28–29 Google Scholar. Ward McAfee notes that, in 1874, the Republican party “took up defensive positions to protect the public school's historic mission of making one people out of disparate religious elements. In this new … strategy, the Democrats were portrayed as cat’s-paws of a culturally divisive Roman Catholic church intent on splintering American public education into a variety of sectarian expressions.” McAfee, Ward M., Religion, Race, and Reconstruction: The Public School in the Politics of the 1870s (Albany: State University of New York Press, 1998), 162 Google Scholar. This was the year that Grant appointed the littleknown Ohio lawyer, Morrison Waite, as Chief Justice, and geography may have played a role in that appointment. McAfee points out that “political outcomes in Ohio were rarely predictable” during Reconstruction, and “the margin for victory in Ohio was paper thin,” putting the Buckeye state “on the fulcrum of determining the political course of the nation itself.” Ibid, 161–62.

89. See Hamburger, Separation of Church and State, sections 3 and 4.

90. See, for example, DelFattore, Joan, The Fourth R: Conflicts over Religion in America's Public Schools (New Haven:Yale University Press, 2004 Google Scholar); and Ravitch, Diane, The Great School Wars: New York City, 1805–1973 (New York: Basic Books, 1974 Google Scholar). DelFattore summarizes the holding of one Massachusetts legal dispute as follows: the King James Bible “is a nonsectarian source of generally accepted moral teachings.” DelFattore, The Fourth R, 49. See also Handy, Robert T., Undermined Establishment: Church-State Relations in America 1880–1920 (Princeton: Princeton University Press, 1991)CrossRefGoogle Scholar.

91. See Employment Division of Oregon v. Smith, 494 U.S. 872 (1990), where the Court said, “We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law that the State is free to regulate… . We first had occasion to assert that principle in [Reynolds].” Ibid., 879. See also the “Religious Freedom Restoration Act” (RFRA), signed into law on November 16, 1993, in response to the Smith case. RFRA prohibited the government from “substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability unless the government can demonstrate the burden ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that … interest.’” Boerne v. Flores, 521 U.S. 507 (1997). The Court struck down RFRA as applied to state laws on the grounds that it “contradicts vital principles necessary to maintain separation of powers and the federal balance.” Ibid. RFRA still applies to cases involving federal laws. See, e.g., Gonzales v. O Centro Espirita Beneficente Uniao DoVegetal (UDV), No. 04–1084 (February 21, 2006), which involved the use of controlled substances found in Amazon rainforest plants by the UDV church. The Court held that the government had not met its “compelling interest” burden under RFRA. As recently as May 2006, the Utah Supreme Court was asked to strike down a conviction under Utah's bigamy statute because of the defendant's free exercise rights under the First Amendment to the United States Constitution. The defendant, a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints, argued that “Reynolds is ‘nothing more than a hollow relic of bygone days of fear, prejudice, and Victorian morality.’” The Court rejected the argument. State of Utah v. Holm, Supreme Court of Utah, No. 20030847 (May 16, 2006).

92. Wallace v. Jaffree, 472 U.S. 38 (1985). Rehnquist mentioned, for example, Thanksgiving Day proclamations by President Madison and a Jefferson administration treaty with the “Kaskaskia Indians” providing, in part: “And whereas, the greater part of said Tribe have been baptized and received into the Catholic church, to which they are much attached, the United States will give annually for seven years one hundred dollars towards the support of a priest of that religion … [a]nd … three hundred dollars, to assist the said Tribe in the erection of a church.” Ibid., n. 5.

93. McCreary v. American Civil Liberties Union, No. 03–1693 (June 27, 2005).