1. In this essay, I describe, explain, and evaluate the views of John W. Whitehead, which are presented in four books: The Second American Revolution (1985), hereinafter cited as Revolution; The Stealing of America (1983), hereinafter cited as America; The End of Man (1986), hereinafter cited as End; and Parents' Rights (1985).Google Scholar

2. Professor Frank E. Eakin, Jr., chairman of the University of Richmond's Religion Department, objects to the nebulousness of the notion “Biblical principles of morality.” He asks in effect, “Whose conception of Biblical morality counts: Paul Tillich's or Jerry Falwell's?” Personal communication Aug. 27, 1986. John Witherspoon, the influential mentor of many of the nation's Founders, provides the answer: “[T]he right of a person to judge for himself or herself ‘in all matters of religion’ [is] an ‘unalienable right.’ God-given, this right could not be given or taken away by any ecclesiastical or civil power.” J. Smylie, James Madison, Religion, and the Constitution 9 (1986) (draft of paper submitted during Freeman Lectures and Symposium, University of Richmond, Sept. 11, 1986, on file with History Department, University of Richmond) (“Smylie, James Madison”). See also sec. V infra. Google Scholar

3. The Court has recognized the legislature's power to enact laws motivated by the community's moral judgments. See, e.g., Bowers v. Hardwick, 106 S. Ct. 2841, 2846 (1986); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973); Davis v. Beason, 133 U.S. 333, 342 (1890).Google Scholar

4. Whitehead does not think all Bible-based statutes are constitutional. For example, before the Fourteenth Amendment was ratified, many legislators justified racial discrimination on the basis of their interpretation of the Bible. Obviously, the antidiscrimination principle of the Equal Protection and Due Process clauses invalidates racially discriminatory legislation—whether Bible based or not.Google Scholar

5. Secular moral judgments are frequently nonrational. As Chief Justice Burger wrote, “From the beginning of civilized societies, legislators and judges have acted upon various unprovable assumptions.” Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61 (1973).Google Scholar

6. R. I. Neuhaus, speech delivered to the American Jewish Committee's National Convention, Washington, D.C., May 16, 1986.Google Scholar

7. Id. Google Scholar

8. K. Greenawalt, Religious Convictions and Lawmaking, 84 Mich. L. Rev. 352, 401 (1985).Google Scholar

9. The Establishment Clause is discussed in sec. V infra. Google Scholar

10. As stated by the Supreme Court, “It was never intended or supposed that the [Establishment Clause] could be invoked as a protection against legislation for the punishment of acts inimical to the… morals of society.” Davis v. Beason, 133 U.S. 333, 342 (1890). See also Murphy v. Ramsey, 114 U.S. 15 (1885) (antipolygamy law upheld because “the holy estate of matrimony” is “the best guarantee of that reverent morality which is the source of all beneficient progress in social and political improvement,”id. at 45).Google Scholar

11. See Greenawalt, 84 Mich. L. Rev. at 380.Google Scholar

12. The hypothetical in the text is unlike the Arkansas law invalidated in Epperson v. Arkansas, 393 U.S. 97 (1968). In Epperson, “[n]o suggestion ha[d] been made that Arkansas' law may be justified by considerations of state policy other than the religious views of some of its citizens.”Id. at 107. In Stone v. Graham, 449 U.S. 39 (1980), the Court derived a prohibited religious purpose from the primary effect of a law that induced children to read commandments that pertain to the religious duties of believers.Google Scholar

13. What actually prompts a legislator to vote for a bill is quite a different matter from the question whether there are other good justifying reasons that connect his vote with traditional views of morality.Google Scholar

14. G. Wills, Inventing America: Jefferson's Declaration of Independence 279 (1979) (quoting Jefferson's “Head and Heart” letter to Maria Cosway).Google Scholar

15. G. Leedes, The Meaning of the Constitution 38 (1986) (“Leedes, Meaning”).Google Scholar

16. A court obviously should take care not to endorse the electorate's conviction that the Bible is divinely inspired. A court could, however, justify laws that are supportable on nonecclesiastical grounds.Google Scholar

17. Stone v. Graham, 449 U.S. 39, 45–46 (1980) (dissenting opinion).Google Scholar

18. 403 U.S. 602 (1971).Google Scholar

19. See E. C. Corwin, The “Higher Law” Background of American Constitutional Law, 42 Ham. L. Rev. 149 (1928).Google Scholar

20. Sec. III presents the evidence that supports Whitehead's description of the Founders' horizon of thought.Google Scholar

21. My own recently published book, The Meaning of the Constitution (1986), failed to mention the Founders' understanding of the role that Christianity played in the development of the common law in England and in the American colonies. Whitehead's scholarly advocacy has convinced me that I completely neglected an important underpinning of the Constitution.Google Scholar

22. This was Justice Story's view. See R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic 181–84, 211 (1985) (“Newmyer, Justice Joseph Story”).Google Scholar

23. For more on Rutherford, see infra text at notes 46–48.Google Scholar

24. 330 U.S. 1 (1946).Google Scholar

25. Justice Story endeavored to refute the “fallacies” of Thomas Jefferson, who disagreed with the idea that “Christianity is indispensable to the true interests & solid foundation for all government.” Newmyer, Justice Joseph Story at 183–84.Google Scholar

26. R. Cord, Separation of Church and State (1982) (“Cord, Separation”).Google Scholar

27. Fortunately, some educators like Professor Greenawalt remind us that critical law professors ought to consider” how far their wish to reduce the influence of religion in our political life may fairly be based on claims about the premises of liberal democracy.” Greenawalt, 84 Mich. L. Rev. at 356 (cited in note 8).Google Scholar

28. The criticism referred to in the text was conveyed to me by an editor of this Journal. Google Scholar

29. J. Pocock, The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (1975).Google Scholar

30. J. Diggins, The Lost Soul of American Politics (1984).Google Scholar

31. Even in Virginia, disestablishment did not mean disinfranchisement. James Madison “wanted to keep open … the debate among citizens about what may or may not be the will and way of God.” Smylie, James Madison at 19 (cited in note 2).Google Scholar

32. See Everson v. Board of Education, 330 U.S. 1 (1946).Google Scholar

33. The distinctiveness of the Jewish and Christian religions is undeniable. Still, those Jews and Christians who make the Bible's vision of God's Word preeminent in their lives share a community of interests that distinguishes them from persons who subordinate the role of Yahweh in human affairs.Google Scholar

34. See Neuhaus, speech (cited in note 6).Google Scholar

35. Martin E. Marty alleges that the term “Judeo-Christian tradition” is misused by anyone who claims to have insights into certain revelations that are not open to all. See M. Marty, A Judeo-Christian Looks at the Judeo-Christian Tradition, Christian Century, Oct. 8, 1986, at 858, 859. This allegation is sometimes used unfairly to discredit Christian social activists who believe that the Judeo-Christian tradition, as a matter of sound public policy, as well as revealed truth, is the foundation of a stable, just, and moral society.Google Scholar

36. Although much of what the Old Testament teaches theocratically the New Testament knocks down eschatologically, both faiths do share the same God, many of the same covenants, and the same respect for what adherents perceive as God's word. Moreover, as Rabbi Jack D. Spiro has generalized, devout Jews and Christians believe that parents have a duty to teach Biblical precepts to their children, that love and justice are among the chief attributes of God, and that many of the noblest ideals of the Old Testament are also contained in the New Testament. Rabbi Jack D. Spiro, Jewish and Christian Interdependence (sermon), Oct. 31, 1986, Congregation Beth Ahabah, Richmond, Va.Google Scholar

37. Roger C. Cramton, The Ordinary Religion of the Law School Classroom, 2 NICM J. 72, 90 (1977).Google Scholar

38. Id. at 73.Google Scholar

39. Professor Eakin has asked me why I speak disparagingly of the ACLU official's concern. He refers to the Holocaust in Hitler's Germany and reminds me that we must read and relate to the lessons of history. The Holocaust was helped along by the unconscionable silence of the church, not because of the social activism of born-again Christians. See J. Stott, Issues Facing Christians Today (1984). The Biblical injunction to “love one another” (John 1334) is hardly a basis to justify barbaric atrocities.Google Scholar

40. The Humanist Manifesto I proclaims the following in its preface: “Today man's larger understanding of the universe, his scientific achievements, and his deeper appreciation of brotherhood, have created a situation which requires a new statement of the means and purposes of religion. [I]t is., obvious that any religion that can hope to be a synthesizing and dynamic force today must be shaped for the needs of this age. To establish such a religion is a major necessity of the present.”Quoted in America at 130 n.25.Google Scholar

Dr. Paul Kurtz, an author of the Humanist Manifesto II and the Secular Humanist Declaration, defines secular humanism as “the freedom of the individual, the freedom of the mind and the use of the scientific method in reasoning.” Richmond Times-Dispatch, Oct. 31, 1986, at 18. Secular humanism is described in more detail in sec. IV infra. Google Scholar

41. Richmond Times-Dispatch, Nov. 1, 1986 (remarks at a conference on Ethics in Conflict Biblical v. Secular, University of Richmond)Google Scholar

42. E.g., the Quakers “saw themselves as the only true, infallible church and saw all Christians of the preceding sixteen centuries as apostates.” L. Levy, Constitutional Opinions 40 (1986) (“Levy, Constitutional Opinions”). The Quaker founder, George Fox, saw the Protestants of England, whether Anglican, Presbyterian, Congregationalist, or Baptist, as members of the “Synagogues of Satan.”Id. Google Scholar

43. James Madison noted that “the latent causes of faction are … sown in the nature of man.” The Federalist No. 10, at 55 (Earie ed. 1937).Google Scholar

44. F. Schaeffer, A Christian Manifesto 34 (1981) (“Schaeffer, Christian Manifesto”).Google Scholar

45. Both the divine rights of kings thesis and its antithesis were derived from ideas about God's purposes and His plan for this world. Revolution at 28.Google Scholar

46. Rutherford wrote Lex, Rex, a book that influenced John Witherspoon, a signer of the Declaration of Independence. Rutherford believed that the Christian is never perfect in this life and therefore “is in need of the absolutes of the Bible to order and direct his fallen nature.” Revolution at 28.Google Scholar

47. In 1644, Samuel Rutherford “asserted that the basic premise of government and, therefore, of law must be the Bible, the Word of God rather than the word of any man.” Revolution at 28. Rutherford's ideas were presented in nontheistic form by John Locke. Whitehead, quoting Francis Schaeffer, notes that many “of the men who laid the foundation of the United States Constitution were not Christians in the [full] sense, and yet they built upon the basis of the Reformation either directly through the Lex, Rex tradition or indirectly through Locke.” Revolution at 30.Google Scholar

48. P. Gay, 1 The Enlightenment: An Interpretation 376 (1966).Google Scholar

49. Revolution at 202.Google Scholar

50. Id. Google Scholar

51. In Jones v. Randall (1774), Lord Mansfield wrote,” Whatever is contra bonos mores et decorum the principles of our law prohibit and the King's Court as the general censor and guardian of the public morals is bound to restrain and punish.”Google Scholar

52. Updegraph v. Commonwealth, 11 S. & R. 394, 400 (1824).Google Scholar

53. The lower classes who relied on the Bible as a source of morality were ridiculed by the so-called philosophes of the Enlightenment partly because the common folk tended to fuse religious and political ideas. Gay, 1 The Enlightenment at 341–42 (cited in note 48); P. Gay, 2 The Enlightenment: An Interpretation 519–20 (1969).Google Scholar

54. Although his views were not exclusively Bible based, James Madison, who believed that the growth and advancement of a religious sect must come from the voluntary support of its membership. As paraphrased by Professor Smylie, Madison stated in 1785 in his Memorial and Remonstrance Against Religious Assessments: “All social duties must be considered as subordinate to the ‘Governor of the Universe’ (Madison's phrase), and as an aspect of our allegiance to the ‘Universal Sovereign’ and ‘Supreme lawgiver’ (Madison's designations) to whom all men and women are responsible and accountable.” Smylie, James Madison at 10 (cited in note 2).Google Scholar

55. In 1795, Samuel Stanhope Smith, in a sermon for the College of New Jersey at Princeton, while speaking about the Constitution of the United States, stated, “A fair and generous competition among the different denominations of Christians … promotes an emulation that will have a beneficial influence on the public morals.” J. Smylie, Jefferson's Statute for Religious Freedom: Historical, Societal, and Constitutional Concerns (paper submitted to National Conference on Religious Freedom, Richmond, Va., Oct. 23–24, 1986).Google Scholar

56. Although many 18th-century intellectuals were influenced by the Enlightenment and believed that the governing first principles of civic virtue could be discerned without God's help, many of the artisans, mechanics, yeoman farmers, and merchants among the common people turned to their Bibles for direction.Google Scholar

57. E.g., after the Establishment Clause was ratified, most states required would-be office holders to declare their belief in the divine inspiration of the Old and New Testaments. “North Carolina, for example, limited office-holding to Protestants, in 1835 the word ‘Protestant’ would be changed to ‘Christian,’ and Jews continued to be excluded from office until 1868.” M. Urofsky, Virginia Statute of 1786 Was Only the First Step, Richmond Times-Dispatch, Oct. 19, 1986, at F1.Google Scholar

58. Leonard Levy does not stress this point but admits that religion and political speech are interrelated. L. Levy, The Legacy Reexamined, 37 Stan. L. Rev. 767, 783 n.68 (1985).Google Scholar

59. Revolution at 31, quoting William Blackstone, Commentaries on the Law of England 28 (Chitty ed.).Google Scholar

60. Schaeffer, Christian Manifesto at 38 (cited in note 44).Google Scholar

61. Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, Part I: The Religious Liberty Guarantee, 80 Harv. L. Rev. 1381, 1386 (1967).Google Scholar

62. Schaeffer, Christian Manifesto at 39, quoting Terry Eastland. See also Revolution at 196–97. Adams defended the establishment of Congregationalist churches in his home state of Massachusetts. E. Gaustad, A Religious History of America 127–28 (1974).Google Scholar

63. See M. Smith, Book Review, 72 Calif. L. Rev. 908, 912 (1984), citing W. Katz, Religion and American Constitutions 8–10 (1964).Google Scholar

64. Howe, The Constitutional Question, in Fund for the Republic, Religion and the Free Society 49, 51–58 (1958).Google Scholar

65. McGowan v. Maryland, 366 U.S. 420, 461 (1961) (Frankfurter, J., concurring). Jefferson, when rector of the University of Virginia, supported on-campus religious instruction by sectarian divinity schools. See McCollum v. Board of Education, 333 U.S. 245 n.11 (1948) (Reed, J., dissenting). Jefferson repeatedly supported federal land grant trust laws that subsidized missionaries who were trying to convert the Indians. See Cord, Separation at 17–47 (cited in note 26).Google Scholar

66. McGowan v. Maryland, 333 U.S. at 473–74; see also L. Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391, 407–12 (1963).Google Scholar

67. Francis Hutcheson referred to “unalienable” rights which, in his view, were literally nontransferable, regardless of any social compact. For example, the capacity to believe one thing or another is a natural attribute of every individual—a power that cannot possibly be transferred to another or to the state. Leedes, Meaning at 44 (cited in note 15).Google Scholar

68. Eakin, along with many others, believes that the Declaration of Independence is a document inspired more by the Enlightenment than by a Judeo-Christian belief system. Moreover, he believes that the primary basis for the Declaration was certainly not the Bible. Although Eakin's view is widely shared, Peter Gay distinguishes between the elitists among the Enlightenment's philosophers and the common people, writing that the anti-Christian philosophes of the Enlightenment denounced the masses, the common people, because they still needed a religion filled with “ridiculous fables.” Gay, 2 The Enlightenment at 519–20 (cited in note 53). The anti-Christian, unabashed secularism of the philosophes was not what the masses found attractive about the Declaration. Moreover, Eakin's point is somewhat misleading. For example, a Calvinist like John Witherspoon who signed the Declaration did not believe less in the Bible's commands because he accepted some ideas of Voltaire, Holbach, and other philosophes who were atheists.Google Scholar

69. The Northwest Ordinance of 1787, 1 Stat. 50, 52 (1789), was drafted in the year that the constitutional convention assembled in Philadelphia; the Congress in art. III of the ordinance explicitly identified religion as a necessary element of good government.Google Scholar

70. See U.S. Const. preamble, which affirms the People's intention to secure the “Blessing of Liberty … to our Posterity.”Google Scholar

71. The signers of the Constitution inserted in the text following art. VII, before the signatures, a reference to “Our Lord.” They noted that the Constitution was”[d]one in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of Our Lord one thousand seven hundred and Eighty seven.” In my view, admittedly nonverifiable, the reference to “Our Lord” in the body of the Constitution was not merely formal, inadvertent, or meaningless, but was an acknowledgment of a higher authority.Google Scholar

72. President George Washington in 1789 declared on behalf of a united people, “it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will.” Cord, Separation at 251 (cited in note 26). Similarly, James Madison in his first inaugural address in 1809 expressed his confidence “in the guardianship and guidance of the Almighty Being whose power regulates the destiny of nations … to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future.” J. Richardson, Messages and Papers of the Presidents (1897).Google Scholar

73. M. Howe, The Garden and the Wilderness 4 (1965).Google Scholar

74. Before and after the Civil War, public schools used the King James Bible, and the religious epigrams in the Webster Speller embodied Protestant views. Urofsky, Richmond Times-Dispatch, Oct. 19, 1986, at F1, F2 (cited in note 57). The Virginia Act for Establishing Religious Freedom refers to “Almighty God.” 12 Hening's Law of Va. 84, 84 (1786).Google Scholar

75. E. Shils, Tradition 15 (1981).Google Scholar

76. For example, Virginia did not repeal all its laws supporting churches until 1798. Schaeffer, Christian Manifesto at 35 (cited in note 44).Google Scholar

77. As late as 1892, the constitution of all 44 states contained “language which either directly or by clear implication recognizes a profound reverence for religion and an assumption that its influence in all human &airs is essential to the well being of the community.” Church of the Holy Trinity v. United States, 143 U.S. 457, 468 (1892).Google Scholar

78. Revolution at 95. Eakin observes correctly that this lack of anticipation is precisely the problem. He notes that as of 1790 there were probably fewer than 3,000 Jews in the United States. Statistics like this show that the Framers did not anticipate the heterogeneity of the population, but the Free Exercise Clause remains as a protection of all religious and other faith inspired people, including atheists. The Court begins to add gloss to the Establishment Clause, however, when its concern about the population's heterogeneity actually operates to deny persons who are motivated by the Bible full participation in the political process—because they adhere to a belief system that was dominant when the Establishment Clause was ratified in 1791. To echo Eakin, this is precisely the problem.Google Scholar

79. Indeed, even in Virginia, revenue-producing (glebe) land which had accumulated in the colonial period through the taxation of all citizens for the support of the Anglican Church was left in the hands of a denomination, the Episcopalians. In 1802, this glebe land was seized and sold for public purposes.Google Scholar

80. Levy, Constitutional Opinions at 160 (1986) (cited in note 42), citing 8 Madison Papers 197.Google Scholar

81. For example, id. at 137, 147, 152. Levy does conclude on the basis of what he admits is scanty evidence that the Establishment Clause prohibits the support of all religions, but although he does not address the question, What is support of religion? his materials indicate that tax support of religious ministries and teachers was the target of the Framers and those who participated in the ratification debates. Id. at 135–61.Google Scholar

82. See id. at 146, quoting remarks of Mr. Huntington during the House of Representatives debate, Aug. 15, 1789, concerning the recommendations for amendments to the Constitution. 1 Annals 757–59.Google Scholar

83. M. Urofsky, A “Wall” of Separation 3 (prepared for Citizens' Committee to Commemorate the Virginia Statute for Religious Freedom) (Virginia Department of Education, 1986).Google Scholar

84. Revolution at 34. See Tocqueville, Democracy in America (reprint. 2 vols. 1961).Google Scholar

85. People v. Ruggles, 8 Johns. 290, 294, 295 (1811).Google Scholar

86. 143 U.S. 457 (1892).Google Scholar

87. Id. at 471.Google Scholar

88. The Antelope, 23 US. 66, 121 (1825); Dainese v. Hale, 91 U.S. 13, 15, 17 (1875); Vidal v. Girard's Executors, 43 U.S. 129, 198 (1844).Google Scholar

89. As late as 1869, Indian missions were supported by President Grant to “civilize” the Indians by “Christianizing” them. Cf. I. A. Stokes, Church and State in the United States 758–59 (1950).Google Scholar

90. Giannella, Religious Liberty, Nonestablishment, and Doctrinal Development, Part II: The Nonestablishment Principle, 81 Harv. L. Rev. 513, 522 (1968).Google Scholar

91. See J. Smylie, Madison, and Witherspoon, Theological Roots of American Political Thought, 32 Princeton U. Lib. Chron. 118–32 (1961); R. Ketcham, James Madison and Religion—A New Hypothesis, 37 J. Presbyterian Hist. Soc'y 65–90 (1960).Google Scholar

92. For a discussion of inchoate principles, see Leedes, Meaning at 26, 68, 75, 76, 101–2, 139 n.424, 151 n.91 (cited in note 15).Google Scholar

93. Concededly reasonable persons (being imperfect fallible human beings) often differ over the precise content of Bible-based rights and duties. E.g., some would say abortion is forbidden; others disagree. Eakin asks how can the Bible be an objective source of values when it is necessarily open to subjective interpretation. Of course, what happens psychologically to an interpreter cannot be called objective; the interpreter of any text, influenced by his previous experience in a multitude of ways, has certain preconceived opinions when he approaches a text. He brings with him his prejudices and his subjectivity. But it is a mistake to think that the interpreter of a document cannot escape solipsism. See Leedes, Meaning at 67–72, 109–12; I. Berlin, Four Essays on Liberty 97 (1970). See generally H. Gadamer, Truth and Method (1975).Google Scholar

94. H. L. A. Hart, Law, Liberty, and Morality 1–2 (1962).Google Scholar

95. R. Unger, Knowledge and Politics 71, 234–35 (1975).Google Scholar

96. Referring to certain scriptural passages, Eakin writes that females were not permitted to speak in public gatherings. He adds, “Biblical derivation does not make a law ‘right.’” I concede that statutes motivated solely by religious convictions violate the Establishment Clause if it is not reasonably conceivable that the statute can also be supported by a substantial nonecclesiastical purpose relevant to a well ordered social life. See sec. V infra. Google Scholar

97. Revolution at 34, citing C. Gregg Singer, A Theological Interpretation of American History 284 (1969).Google Scholar

98. See Monaghan, Our Perfect Constitution, 56 N.Y.U.L. Rev. 353, 378 (1981).Google Scholar

99. Revolution at 34–35.Google Scholar

100. Dr. Melvin I. Urofsky, a professor of history at Virginia Commonwealth University, writes that there was “a pervasive sense of America as primarily a Protestant Christian nation” before the Civil War. Urofsky, Richmond Times-Dispatch, Oct. 19, 1986, at F1, F2 (cited in note 57).Google Scholar

101. Revolution at 36.Google Scholar

102. Id. Google Scholar

103. The letter. “Economic Justice for All: Catholic Social Teachinn and the U.S. Economy.” was approved overwhelmingly by the bishops at their annual conference, Wishington, D.C., Nov. i986.Google Scholar

104. Richmond Times Dispatch, Nov. 14, 1986, at 1.Google Scholar

105. Id. Google Scholar

106. Id. at A12.Google Scholar

107. Humanism is not to be confused with the “humanities” as in the study of the humanities. Some professors of religion, like Frank Eakin, note that humanism is often viewed by so-called Christian humanists as an important Biblical concept since both Testaments teach that God works through mankind. It is the mankind-entered concept of humanism that is attacked by Whitehead and others who put God, rather than mankind, at the center of their human commitments.Google Scholar

108. These temporal thought forms have the following premises in common: the likelihood of inevitable evolutionary progress, the reliability of the scientific method, and the presumption that humanity is not dependent on God for its survival and progress. Such premises are based in part upon faith in scientific theory, rather than upon empirical demonstration. Yet, from admittedly nonverifiable premises, humanists infer comprehensive solutions to basic problems of life and death. In this respect, humanists and religionists have much in common.Google Scholar

109. One self-avowed humanist, a professor from the State University of New York, speaking on Nov. 1, 1986, at a conference on Ethics in Conflict; Biblical vs. Secular, University of Richmond, stated to laughter and applause, “We have got to attack and convince the American people that these fundamentalists are full of crap and don't know what the hell they are talking about.” Another famous humanist, Paul Kurtz, author of The Humanist Manifesto II and the Secular Humanist Declaration, contends that the Scriptures articulate an ethical code “developed 2,000 to 3,000 years ago for a nomadic, rural people. [which] is hardly appropriate for the modem world.” Speech by Paul Kurtz, Oct. 31, 1986, conference on Ethics in Conflict: Biblical vs. Secular, University of Richmond.Google Scholar

110. End at 36–37.Google Scholar

111. Whitehead argues that even “Christian humanism all too often turns into a belief that man can arrive at ultimately valid and important truths on his own without recourse to God's revelation in the Bible.” Revolution at 37.Google Scholar

112. Revolution at 38.Google Scholar

113. Revolution at 41–42.Google Scholar

114. End at 234.Google Scholar

115. America at 26, citing Robert Bork, The Struggle Over the Role of the Court, Nat'l Rev., Sept. 17, 1982, at 138.Google Scholar

116. 367 U.S. 488 (1961).Google Scholar

117. Revolution at 110.Google Scholar

118. Revolution at 103. Eakin believes that the Court really had no other choice stating, “If this be not the case, I as a Jew or Atheist, or anything non-Christian, would be lessened.” Whitehead, however, claims that in effect the Court favors humanism if it discredits Christians by not allowing them, like atheists, to enact laws motivated by their ultimate concerns.Google Scholar

119. Some Justices, more than others, appear to discredit the Christian heritage of the nation. For example, Justice Brennan not only looks back with disdain “to the days when Justice Brewer could arrogantly declare for the Court that ‘this is a Christian nation.’” Church of Holy Trinity v. United States, 143 U.S. 457 (1892), stating “[t]hose days … were forever put behind us by the Court's decision in Engel v. Wale,” in Lynch v. Donnelly, 465 U.S. 668, 718 (1984) (concurring opinion), he also unnecessarily cites sources highly critical of the Biblical passages recounting Christ's birth. Id. at 711 n.18.Google Scholar

120. See G. Merel, The Protection of Individual Choice: A Consistent Understanding of Religion Under the First Amendment, 45 U. Chi. L. Rev. 805, 837 (1978).Google Scholar

121. In Fellowship of Humanity v. County of Alameda, 153 Cal. App. 2d 673, 315 P.2d 395 (1957), a state court elaborated upon an expanded concept of religion in tax exemption laws: “Religion simply includes (1) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from adherence to the belief; and (4) an organization within the cult designed to observe the tenets of belief.”Id. at 693.Google Scholar

122. See Giannella, 80 Harv. L. Rev. at 1431 (cited in note 61).Google Scholar

123. 403 U.S. 602 (1971).Google Scholar

124. Id. at 612–13.Google Scholar

125. 106 S. Ct. 2841 (1986).Google Scholar

126. Id. at 2846. An adequate rationale for a statute exists when a majority of the electorate [believes that an individual's behavior] is immoral and unacceptable.”Id. Therefore a statute that punishes inter alia homosexual behavior is valid, notwithstanding a substantive due process challenge based on its alleged nonrationality.Google Scholar

127. McGowan v. Maryland, 366 U.S. 420, 461 (1961) (Frankfurter, J., concurring).Google Scholar

128. Id. at 504–5.Google Scholar

129. 105 S. Ct. 2479 (1985).Google Scholar

130. See Note, The Leading Cases, 99 Harv. L. Rev. 120, 187 n.34, 190 (1985). The five were Chief Justice Burger and Justices White, Powell, Rehnquist, and O'Connor.Google Scholar

131. Wallace v. Jaffree, 105 S. Ct. 2479, 2492 (1985).Google Scholar

132. Id. Google Scholar

133. Id. at 2492.Google Scholar

134. Id. at 2493.Google Scholar

135. 448 U.S. 297 (1980).Google Scholar

136. Id. at 319–20.Google Scholar

137. Giannella, 80 Harv. L. Rev. at 1404 (cited in note 61).Google Scholar

138. We have to bear in mind that the Court has not provided us with a reliable authoritative test to determine what is a religion for purposes of the Establishment Clause. See Symposium, The Religion Clauses, 72 Calif. L. Rev. 753–921 (1984); G. Freeman, The Misguided Search for the Constitutional Definition of “Religion,” 71 Geo. L.J. 1519 (1983).Google Scholar

139. Paul Freund referred to a judge's “can't helps, his ultimate convictions or values.” Freund, Social Justice and the Law, in Social Justice 110 (Brandt ed. 1962). What Freund said of judges applies to all lawmakers: “the most important thing… is his philosophy; and if it be dangerous for him to have one, it is at all events less dangerous than the self-deception of having none.”Id. Google Scholar

140. The Court's answer could be informed by Whitehead's thesis, viz., (1) the United States, in part, was founded upon common law principles which had roots in Bible-based beliefs about natural law, and (2) these concepts should not be rejected outright by impartial judges. The Rehnquist Court, given the opportunity, might acknowledge the Biblical underpinnings of much American law. This would not be unprecedented in the modern era. See McGowan v. Maryland, 366 U.S. 420, 442 (Court's opinion); id. at 462 (Frankfurter, J., concurring).Google Scholar

141. Many scholars disagree. They want more protection for the sensitive individual who feels offended anytime the electorate acts according to Biblical precepts. See N. Donen & C. Sims, The Nativity Scene Case: An Error of Judgment, 1985 U. Ill. L. Rev. 837, 860.Google Scholar

142. 465 U.S. 668 (1984), rehearing denied, 466 U.S. 994 (1984) (Court found that the government subsidy for a creche display accommodated but did not endorse religion in violation of the establishment clause).Google Scholar

143. Wallace v. Jaffree, 105 S. Ct. 2479, 2500 (1985). Justice O'Connor, however, unlike now Chief Justice Rehnquist, is not willing to abandon motive inquiry when the Court suspects that the stated secular purpose is a sham. Id. For a recent example of intrusive motive inquiry, see Edwards v. Aguillard, U.S. (1987).Google Scholar

144. Greenawalt, 84 Mich. L. Rev. at 400–401 (cited in note 8).Google Scholar

145. Id. at 403.Google Scholar

146. Id. at 398.Google Scholar

147. Id. Google Scholar

148. Id. at 396. Greenawalt also agrees that at times a judge may rest his decision on a particularistic religious premise “when such judgments are genuinely unavoidable.”Id. at 400.Google Scholar

149. Id. at 401–2.Google Scholar

150. See Harris v. McRae, 448 U.S. 297 (1980).Google Scholar

151. Greenawalt at 401, citing Henkin, 63 Colum. L. Rev. 391 (cited in note 66). Henkin recognized that obscenity laws “are based on traditional notions, rooted in this country's religious antecedents, of governmental responsibility for communal and individual ‘decency’ and ‘morality.’”Id. at 391. Henkin also acknowledges that “some morality underlies all law and our morality and our laws can be followed back to roots in the Bible.”Id. at 408 (1963).CrossRefGoogle Scholar

152. Henkin, 63 Colum. L. Rev. at 4–02–14.Google Scholar

153. Id. Google Scholar

154. Greenawalt, 84 Mich. L. Rev. at 361.Google Scholar

155. Henkin, 63 Colum. L. Rev. at 414.Google Scholar

156. Greenawalt discusses incest briefly, and he assumes that the prohibition of incest can be justified on rational secular grounds, whereas a prohibition of homosexuality cannot be justified on rational secular grounds. 84 Mich. L. Rev. at 362–63.Google Scholar

157. Giannella wrote, “the institution of marriage ultimately rests on a view of the nature of mankind (or womankind) that defies ‘utilitarian’ analysis. It springs from religious origins, is oriented to our basic ethos, and in turn influences our society. Marriage law, then, is an instance where the state can legitimately support a cultural institution born of religious values.” Giannella, 80 Ham. L. Rev. at 1404–5 (cited in note 61).Google Scholar

158. Greenawalt, 84 Mich. L. Rev. at 361.Google Scholar

159. Greenawalt does not think that the assumptions of liberal democracy allow the diminution of an individual's liberty on the grounds that certain sexual activities are sinful. Id. at 364–65, 401.Google Scholar

160. B. Ackerman, Social Justice in the Liberal State 54 (1980).Google Scholar

161. Romans 13 requires believers to honor rulers in authority. However, like the Founders, assertive evangelicals vigorously dissent when the government exceeds its lawful jurisdiction and violates inalienable rights.Google Scholar

162. The author welcomes Kent Greenawalt's brilliant article, which ends on this high note: “liberalism demands a high degree of tolerance and understanding—not the tolerance of indifference, but a sympathetic mutual understanding of the place religious premises occupy in the life of serious believers and of the dangers to those of different beliefs if religious convictions and discourse overwhelm the common dialogue of rational secular morality.” Greenawalt, 84 Mich. L. Rev. at 404 (cited in note 8).Google Scholar