HKB
THE "NO PREFERENCE" DOCTRINE
The original proposal leading to the First Amendment was introduced into the House of Representatives by James Madison, and read as follows: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."[7] This was altered in the House to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."[8] In the Senate the above formula was replaced by the following; "Congress shall make no law establishing articles of religion."[9] The conference committee of the two houses adopted the House proposal, but with the neutral term "respecting an establishment," etc., taking the place of the original sweeping ban against any law "establishing religion."[10] Explaining this phraseology, in his Commentaries, Story asserted that the purpose of the amendment was not to discredit the then existing State establishments of religion, but rather "to exclude from the National Government all power to act on the subject." He wrote: "The situation, * * *, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship."[11]
For the rest, Story contended, the no establishment clause, while it inhibited Congress from giving preference to any denomination of the Christian faith, was not intended to withdraw the Christian religion as a whole from the protection of Congress. He said: "Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."[12] As late as 1898 Cooley expounded the no establishment clause as follows: "By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others (citing 1 Tuck. Bl. Com. App. 296; 2 id., App. Note G.). It was never intended by the Constitution that the government should be prohibited from recognizing religion, * * * where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."[13]
THE "WALL OF SEPARATION" DOCTRINE