Chief Justice Warren Earl Burger wrote in Marsh v. Chambers (1982): “It can hardly be thought that in the same week the members of the first Congress voted to appoint and pay a chaplain for each House and also voted to approve the draft of the First Amendment … (that) they intended to forbid what they had just declared acceptable.”
The same week Congress approved the First Amendment, they requested President George Washington declare the First National Day of Thanksgiving and Prayer to Almighty God on Oct. 3, 1789. The First Amendment, together with the first Ten Amendments, called the Bill of Rights, were passed in the First Session of Congress, which was meeting in New York City. These Amendments were intended to be “handcuffs” or limitations on the power of the new federal government.
The Bill of Rights have two signatures, that of Vice President John Adams, president of the Senate, and Frederick Augustus Muhlenberg – an ordained Lutheran minster who was elected the first speaker of the U.S. House of Representatives.
The Preamble to the Bill of Rights explained the states’ concerned the federal government might abuse its power: “The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added … as amendments to the Constitution of the United States.”
As Congress was the branch of government where laws were to be written, it was restricted by these Amendments.
The First Amendment began: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”
Websters 1828 Dictionary defined “respecting” as: “regarding,” “concerning,” or “relating to.” In other words, when the subject of an establishment of religion came before the federal government, their response was to be “hands off,” as religion was under each individual state’s jurisdiction.
The First Amendment continued, limiting Congress from: “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
If the founders could have seen into the future that the Supreme Court would make laws from the bench, and that the president would effectively make laws through executive orders and regulations, the founders would likely have worded the First Amendment as “Congress, the Supreme Court and the president shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
After the Bill of Rights were passed by Congress, Sept. 25, 1789, President George Washington stated in his National Proclamation of Prayer and Thanksgiving, Oct. 3, 1789:
Whereas it is the duty of all nations to acknowledge the Providence of Almighty God, to obey His will, to be grateful for his benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have by their joint Committee requested me ‘to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness;’
Now, therefore, I do recommend and assign Thursday, the twenty-sixth day of November next, to be devoted by the People of these United States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be; That we may then all unite in rendering unto Him our sincere and humble thanks, for His kind care and protection of the People of this country previous to their becoming a Nation; for the signal and manifold mercies, and the favorable interpositions of His Providence, which we experienced in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty, which we have since enjoyed, for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instututed for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge;
and in general for all the great and various favors which He hath been pleased to confer upon us. And also that we may then unite in most humbly offering our prayers and supplications to the Great Lord and ruler of nations, and beseech Him to pardon our national and other transgressions, to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our national government a blessing to all the People, by constantly being a government of wise, just and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all Sovereigns and Nations (especially such as have shown kindness unto us) and to bless them with good government, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and generally to grant unto all Mankind such a degree of temporal prosperity as He alone knows to be best.
Given under my hand, at the city of New York, the 3rd of October, in the year of our Lord one thousand seven hundred and eighty-nine. – George Washington.
Supreme Court Chief Justice Warren Earl Burger stated in the case of Marsh v. Chambers (675 F. 2d 228, 233; 8th Cir. 1982; review allowed, 463 U.S. 783; 1982): “The men who wrote the First Amendment religion clause did not view paid legislative chaplains and opening prayers as a violation of that amendment. … The practice of opening sessions with prayer has continued without interruption ever since that early session of Congress. … It can hardly be thought that in the same week the members of the first Congress voted to appoint and pay a chaplain for each House and also voted to approved the draft of the First Amendment … (that) they intended to forbid what they had just declared acceptable.”
In the Supreme Court case of Town of Greece, NY, v. Galloway et al, Justice Kennedy wrote in the decision, May 5, 2014: “Respondents maintain that prayer must be nonsectarian … and they fault the town for permitting guest chaplains to deliver prayers that ‘use overtly Christian terms’ or ‘invoke specifics of Christian theology.’ … An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer. … The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate’s first chaplains, the Rev. William White, gave prayers in a series that included the Lord’s Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom’s Prayer, and a prayer seeking ‘the grace of our Lord Jesus Christ, &c …'”
Justice Kennedy continued in Greece v. Galloway, May 5, 2014: “The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. … To hold that invocations must be nonsectarian would force the legislatures … and the courts … to act as … censors of religious speech. … Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. …”
Kennedy added in Greece v. Galloway: “Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian. …”
Kennedy continued: “While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws. … The first prayer delivered to the Continental Congress by the Rev. Jacob Duché on Sept. 7, 1774, provides an example: ‘Be Thou present O God of Wisdom and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the Truth and Justice, Religion and Piety, prevail and flourish among the people. Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal Blessings as Thou seest expedient for them in this world, and crown them with everlasting Glory in the world to come. All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Saviour, Amen. …'”
Supreme Court Justice Kennedy concluded his Greece v. Galloway decision, May 5, 2014: “From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. … Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith.”
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