# Amicus Curiae Brief — Board of School Commissioners v. Jaffree > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0031%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1984 - **Citation:** 466 U.S. 924 ## Text U.S. . ‘ S reme Court. juL 5 1984 RK —— IN THE —— Supreme Court of the United States October Term, 1983 No. 83-812 GEORGE C. WALLACE, Governor, et al., Appellants, V. ISHMAEL JAFFREE, et al., Appellees. No. 83-929 DOUGLAS T. SMITH, et al.. Appellants, Vv. ISHMAEL JAFFREE, et al., Appellees. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF OF THE FREEDOM COUNCIL, AMICUS CURIAE, IN SUPPORT OF THE APPELLANTS JOHN W. WHITEHEAD JAMES J. KNICELY P. O. Box 409 GRABER & KNICELY Manassas, VA 22110 1001-A Richmond Road (703) 491-5411 Williamsburg, VA 23185 (804) 253-0026 Participating Attorneys for The Rutherford Institute P. O. Box 510 Manassas, VA 22110 Attorneys for Amicus Curiae The Freedom Council P. O. Box 64323 Virginia Beach, VA 23464 TABLE OF CONTENTS Page Interest of Amicus Curiae ......... 6.00 e cece eee e ee eeeee 1 Summary of Argument ....... 26-666 cee eee eee renee 3 Argument I. Alabama’s Statutory Provision Which Permits Public School Teachers To Begin The School Day With Medi- tation Or Silent Prayer Does Not Conflict With The In- tentions Of The Framers Of The First Amendment As Revealed In Their Words, Deeds, And History ........ 4 A. B. If. Ala The Views Of Thomas Jefferson And James Madison 5 Executive And Congressional Actions In Support Of Our Religious Heritage ......... 6-6 -- esses eee 11 bama’s Statutory Provision Which Permits Public School Teachers To Begin The School Day With Medita- tion Or Silent Prayer Merely Permits An Exercise Of The Liberty Of Conscience In Its Purest Form .........-- 16 Ill. Alabama’s Statutory Provision Allowing Meditation or Sile nt Prayer is an Example of Affirmatively Mandated Accommodation ... 6... ccc cc eee eee e eee eennes 21 IV. Alabama’s Statutory Provision Allowing Meditation or Silent Prayer does not Violate the Lemon Tripartite Test 23 A. Alabama Code § 16-1-20.1 Serves Secular Educa- tional Purposes .........-- 60sec e eee eee eens 23 Any Advancement of Religion By a Period of Silence is Merely De Minimus and Incidental ..........-- 26 There is No Entanglement Issue Presented Here .... 27 TABLE OF CASES Cases Page Baird v. State Bar of Arizona, 401 U.S. 1 (1970) ............ 19 Braunfeld v. Brown, 366 U.S. 599 (1961) ..........--5265. 21 Bridges v. California, 314 U.S. 252 (1941) ............+55. 19 Cantwell v. Connecticut, 310 U.S. 296 (1940) .......... 5, 16, 17 Curtis v. Loether, 415 U.S. 189 (1974) ............6-0445- 25 Engel v. Vitale, 370 U.S. 421 (1962) ............... 6, 7, 12, 15 Everson V. Board of Education, 330 U.S. 1 (1947) .......... 5, 6 Gaines v. Anderson, 421 F.Supp. 337 (D.Mass. 1976) ...... 25, 26 Griswold v. Connecticut, 381 U.S. 479 (1965) ............ 19, 20 Hunt v. McNair, 413 U.S. 734 (1973) ... 2.2... cc wee ewes 24 Jaffree v. Board of School Commissioners of Mobile County, 554 F.Supp. 1104 (S.D.Ala. 1983) ..... 2.2... 6. eee e ee eens 27 Jones v. Opelika, 316 U.S. 595 (1942) ... 2... 2.6622 c eee 16, 19 Keyishian v. Board of Regents, 385 U.S. 589 (1967) ......... 20 Lamont v. Postmaster General, 381 U.S. 301 (1965) ......... 20 Larson v. Valente, 456 U.S. 228 (1982) ... 2.2... cece ene 24 Lemon v. Kurtzman, 403 U.S. 602 (1971) ............. 4, 23,24 Lynch v. Donnelly, ——— U.S. ——., 104 S.Ct. 1355 GEE . cctuccsecdhantacs 5, 7, 12, 15, 16, 18, 22, 23, 24, 26, 27 Marsh v. Chambers, US. ——, 103 S.Ct. 3330 CERES cccccccontbacccesecésueuheeenane 5, 10, 11, 21, 24 Martin v. Struthers, 319 U.S. 141 (1943) ... 0... 0... ee ene. 20 McCollum v. Board of Education, 333 U.S. 203 (1948) ....9, 16 McGowan v. Maryland, 366 U.S. 420 (1960) .............. 10 Meyer v. Nebraska, 262 U.S. 390 (1922) .........0e ee euee 16 Meyers Vv. United States, 272 U.S. 52 (1926) ............... 15 Mueller v. Allen, U.S. ——, 103 S.Ct. 3062 (1983) .... 24 NAACP Vv. Alabama, 357 U.S. 449 (1958) ..........6.5005: 19 New York Trust Co. v. Eisner, 256 U.S. 345 (1921) ........ 5 Olmstead v. United States, 277 U.S. 438 (1928) ........... 19 Prince v. Massachusetts, 321 U.S. 158 (1943) ........... 16, 20 Reed v. Van Hoven, 237 F.Supp. 48 (W.D.Mich. 1965) ..... 25 School District of Abington Township, Pa. v. Schempp, 374 US. EE 16, 17, 26, 27, 28 Shelton v. Tucker, 364 U.S. 479 (1960) ............000005- 20 Sherbert v. Verner, 374 U.S. 398 (1963) .............0055. 21 Stanley v. Georgia, 394 U.S. 449 (1969) ............. 16, 19, 20 Thomas v. Collins, 323 U.S. 516 (1944) ..........00055. 16, 19 Tinker Vv. Des Moines Independent School District, 393 U.S. 503 EPEC ECU cE eiweseccsssececcccccecccccs 20 Torcaso V. Watkins, 367 U.S. 488 (1961) ............54.. 27, 29 Walz v. Tax Commission, 397 U.S. 664 (1970) ........ 5,21, 22 West Virginia Board of Education v. Barnette, 319 U.S. 624 eee e ey we eenecccccccccecccceces 16 Widmar v. Vincent, 454 U.S. 263 (1981) ...........050005. 27 Winters v. New York, 333 U.S. 507 (1948) ............055. 20 Wooley v. Maynard, 430 U.S. 705 (1977) ..........2005. 16, 19 Zorach v. Clauson, 343 U.S. 306 (1952) .......... 16, 21, 22, 23 Statutes Pr eR: FBR. | Revere ore TeTTTITT LTT ei 23 ALA. CONST. Preamble, ALA. CODE, Vol. 1 ............ 29 A Treaty Between the United States of America and the Kaskas- kia Tribe of Indians, 7 Stat. 78-79 (Peters ed. 1846) ....... 9 A Treaty Between the United States and the Oneida, Tuscorora, and Stockbridge Indians, dwelling in the Country of the Oneidas, 7 Stat. 47-48 (Peters ed. 1846) ..........20005. 13 An Act granting further time for locating military land warrants, and for other purposes, Ch. 26, 2 Stat. 271-272 (Peters ed. SEED. cctuadsdnnees66s0s 665 ReCedens cueedebeeteseas 8 An Act in addition to an act, intituled etc., Ch. 30, 2 Stat. 155- CS GUE GE, TG 0 6.0 cee es cdtdcccccesevticssonces 8 An Act to provide for the Government of the Territory Northwest of the river Ohio (Northwest Ordinance), Ch. 8, 1 Stat. 50-51 CURE BUD 8 occ ccecccasecsecstessescveseceese 13 An Act to revive and continue in force, etc., and for other pur- poses, Ch. 30, 2 Stat. 236-237 (Peters ed. 1845) .......... 8 Articles of a (Kickapoo Indian) Treaty, 7 Stat. 391-392 (Peters GE, TD. duc ctndncwessddbcnncdscecatevnseenssecouss 14 Articles of a (Osage Indian) Treaty, 7 Stat. 242-243 (Peters ed. CE bck cb cddvudusiondiedndeiece beddeedesicns tenes 14 Articles of a (Wyandot Indian) Treaty, 7 Stat. 160, 166 (Peters Oe TE 64.6 64.6660666500d00h0eRenesonennesaeereues 13 H. R. Rep. No. 124, 33rd Cong., Ist Sess. (1789), reprinted in 2 Reports of Committees of the House of Representatives 4 CED noo wen cnccecedscavescenveusteesneseuacesss 10 Joint Resolution, etc., Pub. L. No.. 94-344 § 1(19), 90 Stat. 810, 813 (1978), codified, as amended, at 36 U.S.C. § 172 (1978) 15 iv Page Joint Resolution to establish a National Motto of the United States, Ch. 795, Pub. L. No. 84-851, 70 Stat. 732 (1957) ... 15 Journal of the House of Representatives 123 ................ 11 i, une dae ebekeueeneanene 11 Ord. of 1787, July 13, 1787, Art. 3, reprinted in Documents Illus- trative of the Formation of the Union of American States 52 ED | a space bake Kid 4k Kd Ones akaked deeeeeneaus 13 Other Sources 2 American State Papers (J. Gales ed. 1834) ............... 14 1 Annals of Congress (J. Gales ed. 1834) ................ 10, 17 C. Antieau, A. Downey and E. Roberts, Freedom From Federal ee ee du neat nanses canes 6 H. Black, Constitutional Law (4th ed. 1927) ............... 8 Choper, Religion in the Public Schools: A Proposed Constitu- tional Standard, 47 Minn. L. Rev. 329 (1963) ............ 25 Comment, Accommodating Religion in the Public Schools, 59 Pe aie SG Ee UE gba 0 e666 nnb5000 00606600608 26 Comment, Secularism in the Law: The Religion of Secular Hu- manism, 8 Ohio N. U. L. Rev. 329 (1981) .............. 28 T. Cooley, Principles of Constitutional Law (1893) ......... 8 R. Cord, Separation of Church and State: Historical Fact and eg ed cen eeansees es 8, 10, 11 H. Cox, The Secular City 18 (1965) ............ccceeeees 29 Forkosch, Religion, Education, and the Constitution—A Middle Way, 23 Loyola L. Rev. 617 (1977) ............2e200ee 28 P. Freund, Religion and the Public Schools (1965) .......... 26 Page Giannella, Religious Liberty, Nonestablishment and Doctrinal Development—Part I, 80 Harv. L. Rev. 1381 (1967) ....17, 18 Giannella, Religious Liberty, Nonestablishment and Doctrinal Development—Part II, 81 Harv. L. Rev. 513 (1968) ....22, 28 M. Howe, The Garden and the Wilderness (1965) ........... 6 P. Kauper, Civil Liberties and the Constitution (1962) ....... 29 Kauper, Prayer, Public Schools and the Supreme Court, 61 Mich. Se OD +. b6 Gu eb dave we eesecwensescees 21, 26 Note, Religion in the Public Schools, 20 Vand. L. Rev. 1078 CRD. Cksb cd vec nncedccsnsbeceesscvecveteeseteess 26, 27 2 J. Richardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897 (1901) ......... 0. ccc ee eeeee 14 P. Stokes and L. Pfeffer, Church and State in the United States CED ce Cake 60d 6bbW640040%9065 00000806686 0508 7, 12,13 2 J. Story, Commentaries on the Constitution of the United States Ge Ge IE 96060 ces cet cnedbecenseccoesseses 7, 8,18 L. Tribe, American Constitutional Law (1978) ............. 24 1 U.S. Office of Indian Affairs, Annual Reports of the Commis- sioner of Indian Affairs, 1824-1831 (1976) ........000005 14 1 C. Warren, The Supreme Court in United States History (1922) 15 J. Wilson, Public Schools of Washington, 1 Records of the Columbia Historical Society 4 (1897) ...........0000eee 9 8 Works of Thomas Jefferson (Washington ed. 1861) ........ 7 15 Writings of Thomas Jefferson (Memorial ed. 1904) ....... 8 19 Writings of Thomas Jefferson (Memorial ed. 1904) ....... 9 vi IN THE Supreme Court of the United States October Term, 1983 No. 83-812 GEORGE C. WALLACE, Governor, et al., Appellants, V. ISHMAEL JAFFREE, et al., Appellees. No. 83-929 DOUGLAS T. SMITH, et al., Appellants, V. ISHMAEL JAFFREE, et al., Appellees. ON APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF OF THE FREEDOM COUNCIL, AMICUS CURIAE, IN SUPPORT OF THE APPELLANTS INTEREST OF AMICUS CURIAE' This case presents important issues concerning the power of the state to recognize and accommodate America’s re- ligious pluralism and diversity in the operation of the public 2 Counsel of record to the parties in the cases described above have consented to the filing of this brief and letters of consent have been filed with the Clerk pursuant to Rule 36. 2 schools without infringing upon the freedom of conscience of individual students or teachers. The Freedom Council is greatly concerned about the implications for religious free- dom and tolerance raised by the Court of Appeals’ decision in this case. The Freedom Council believes that the Court of Appeals ruling swept too broadly when it invalidated the Alabama meditation or silent prayer statute. The statute does not advance religion. It merely provides for a period of silence that recognizes in neutral fashion the freedom of conscience of each teacher and student. Teachers are free to decide whether or not to observe a period of silence and students are free to utilize the period of silence in the manner they — choose. Such activity merely ad- vances the spirit of pluralism and toleration intended by the First Amendment and does not constitute an unlawful estab- lishment of religion. The Freedom Council is a non-profit religious corpora- tion organized to defend, restore, and preserve religious liberties guaranteed by the Constitution. With chapters in each of the 50 states, the Freedom Council is also affili- ated with student groups on over 70 college campuses and with the Christian Broadcasting Network, currently the largest cable television network in the United States reaching over 20 million homes. The Freedom Council assists its chapters and associated organizations in address- ing issues on the local, state and national levels that have a significant impact on First Amendment religious freedoms. Amicus Curiae is represented by participating attorneys from The Rutherford Institute, a non-profit religious cor- poration named for Samuel Rutherford, a 17th-century Scottish minister and Rector at St. Andrew’s University. Through the efforts of its staff and affiliated local chapters, attorneys and lay persons, the Institute undertakes to assist 3 litigants and to participate in significant cases relating to First Amendment religious freedoms. Counsel for Amicus Curiae have specialized in constitutional litigation, including the Religion Clauses of the First Amendment, and have par- ticipated as counsel for amici curiae in previous cases before this Court. Counsel John W. Whitehead has argued and served as special cons.:tutional consultant in numerous First Amendment cases and has authored several books and law review articles that focus on interpretation and application of the First Amendment Religion Clauses. The Freedom Council believes the expertise of its counsel will be of assistance to the Court in this case. SUMMARY OF ARGUMENT In prior cases, this Court has relied upon the intent of the Framers of the Bill of Rights for understanding the meaning and reach of the Establishment Clause. The histori- cal record shows that the climate of the revoiutionary period was fundamentally religious and favored government accommodation of religious practices, some of far more sig- nificance than the Alabama law in question. Both Jefferson and Madison, often cited for their disestablishmentarian views, in fact tolerated and approved numerous religious practices in the public schools and in public life. Jefferson, for example, was President of the School Board of the Dis- trict of Columbia where the Bible and the Watts Hymnals were used as primary texts. Moreover, our national history is replete with examples of government, in a spirit of tolera- tion and accommodation, recognizing, as the State of Ala- bama has in this case, America’s religious tradition and culture, but without infringing on the rights of conscience of those who do not subscribe to particular tenets of that tradition or culture. 4 The Alabama law in question is permissive. It provides an opportuni:y to observe a period of silence in which each may meditate or voluntarily pray. It respects the in- violability of conscience that is at the heart of the Free Exercise Clause. It is not a constitutionally proscribed establishment of religion. It merely advances in neutral fashion the freedom to believe (or not to believe) and con- stitutes the type of affirmative, yet neutral, accommodation mandated by the First Amendment. The Alabama law also satisfies the “tri-partite test” of Lemon v. Kurtzman, 405 U.S. 602 (1971). Secular means and ends are furthered by the period of silence, including the interests of calling the classroom to order, instructing the students in self-discipline, teaching the students re- spect for the authority of the teacher, permitting students to contemplate serious thoughts and values, engendering an appreciation for this nation’s cultural and religious heri- tage and promoting religious liberty and tolerance through voluntarism. Any nominal aid to religion is incidental to the purposes of the statute and de minimus when compared to statutory enactments this Court has approved in the past. ARGUMENT 1. Alabama’s Statutory Provision Which Permits Public School Teachers To Begin The School Day With Meditation Or Silent Prayer Does Not Conflict With The Intentions Of The Framers Of The First Amendment As Revealed Ja Their Words, Deeds, And History. History provides varied and ample evidence that among the founders of this Republic and its early presidents and congresses, the universal sentiment towards religion was one of accommodation, not merely toleration. It is unequivo- 5 cably clear from the language, intent, and history surround- ing the adoption of the First Amendment that the separation of church and state intended by the Bill of Rights was of limited effect and that amicability, not hostility to the free exercise of religion, was the shibboleth of that era. In Religion Clause adjudication, no less than any other area of law, Justice Holmes’ statement is most fitting: “A page of history is worth a volume of logic.” New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). The de- termination of “the ultimate constitutional objective” as expressed by the Framers and “as il/uminated by history” is of particular relevance here. Lynch v. Donnelly, US. ; , 104 S.Ct. 1355, 1361 (1984); Walz v. Tax Commission, 397 U.S. 664, 671 (1970). In this regard, this Court has said: In applying the First Amendment to the states through the 14th Amendment, Cantwell v. Connecticut, 310 U.S. 296 (1940), it would be incongruous to interpret that clause as imposing more stringent First Amend- ment limits on the states than the draftsmen imposed upon the Federal Government. Marsh v. Chambers, __. US. . , 103 S.Ct. 3330, 3335 (1983). Because of this basic constitutional presup- position, concrete, specific historical evidence of the Fra- mers’ views on religion and religious practices in public life must be placed at a premium to understand the reach and meaning of the First Amendment Religion Clauses. A. THe Views Or THOMAS JEFFERSON AND JAMES MADISON. The views of Thomas Jefferson and James Madison have been previously recognized by this Court as most instructive. verson V. Board of Education, 330 U.S. 1 (1947). Al- 6 though Thomas Jefferson can in no sense be regarded as a Framer of the First Amendment, this Court, in its early Religion Clause cases, has adopted the view that “the framers spoke in a wholly Jeffersonian dialect and those who ratified it fully undevstood that style of speech.” M. Howe, The Garden and the Wilderness 10 (1965). At the time of the drafting and adoption of the First Amend- ment, Jefferson was in France. However, through his cor- respondence with James Madison, his influence was at least partially felt. In many ways, the views of Madison and Jefferson were not representative of those of the Framers of the Constitut- ion. Both Madison and Jefferson were from Virginia and were central figures in the fight in that state for the disestab- lishment of the Church of England. See Everson v. Board of Education, 330 U.S. at 11-13 and 33-42 and Engel v. Vitale, 370 U.S. 421, 428-429 (1962)’ Not all states, however, shared Madison’s and Jefferson’s fervor for disestablishment. As this Court has previously noted, at the outbreak of the Revolutionary War, “there 2 Antieau, Downey and Roberts note, however, that: “[T])he First Amendment was hardly the exclusive product of any one person. Subsequent interpretations of the Amendment should not be con- trolled by the singular statements of Madison [or] Jefferson. ... An examination of the early activities of the Federal Government in- dicates that the people approved and welcomed its aid to church related activities. .. . There was undoubtedly the faith that subse- quent generations of Americans would be able to utilize the power of the Federal Government to promote the concurrent interests of government and religion under First Amendment norms that were reasonable, and just.” C. Antieau, A. and E. Roberts, Freedom From Federal Establishment 207-209 (1964). 2 Both Madison’s Memorial and Remonstrance Against Religious Assessments, written in 1785 in opposition to legislation which would use Virginia’s public funds to pay teachers of the Christian religion, and Jefferson's Bill for Establishing Religious Freedom in Virginia, in 1779 and enacted in 1786, were central documents to these disestablishmentarian forces. 7 were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five.” Engel v. Vitale, 370 U.S. at 428. The dis- establishment of state churches was by no means complete by the time of the ratification of the Federal Constitution. Indeed, the Congregational Church was not disestablished in Connecticut until 1818 and in New Hampshire until 1819. The last of the colonies, Massachusetts, was not disestablished until 1833. P. Stokes and L. Pfeffer, Church and State in the United States 77-78 (1964). This history of state church establishment illustrates that the term “establishment” had a fixed meaning in the minds of the drafters. On the Federal level, “[t]he real object of the [first] amendment was. . .to prevent any national ecclesias- tical establishment which should give to a hierarchy the exclusive patronage of the national government.” Lynch v. Donnelly, 104 S.Ct. at 1361, citing 2 J. Story, Commen- taries on the Constitution of the United States 593-595 (2d ed., 1851). This restriction was institutional in nature. As Jefferson’s often quoted expression stated, the Religion Clauses were to build “a wall of separation between Church and State.” 8 Works of Thomas Jefferson 113 (Washington ed. 1861) (emphasis supplied). No wall of separation was intended, however, even by Jefferson, to seal religion hermetically from governmental activities. The institution of the church was to be isolated from the institution of the state. As Jefferson stated in 1817: If by religion, we are to understand sectarian dogmas, in which no two of them agree, then your exclamation on that hypothesis is just, “that this would be the best of all possible worlds, if there were no religion in it.” But if the moral precepts, innate in man, and made a part of his —— constitution, as necessary for a social being . . . in which all agree, constitute true re- ligion, then, without it, this would be, as you again say, “something not fit to be named even, indeed, a Hell.” 15 The Writings of Thomas Jefferson 109 (Memorial ed. 1904). Indeed, it must be noted: “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 seiitiment 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 re- ligious worship.” J. Story, supra; see also H. Black, Consti- tutional Law 515 (4th ed., 1927) and T. Cooley, Principles of Constitutional Law 224 (1893). That this sort of accommodation of religious freedom was compatible with the alleged “separationist” views of Thomas Jefferson was particularly evident in Jefferson’s actions in the field of education. Jefferson as President repeatedly de- parted from the fastidious separationism which revisionist historians have attributed to him. For example, on three separate occasions, Jefferson signed into law extensions of a land grant given by the Federal government specifically to promote proselytizing amongst the Indians. R. Cord, Sep- aration of Church and State: Historical Fact and Current Fiction 41-46 (1982).° Further, in 1803, President Jeffer- son proposed to the United States Senate a treaty with the Kaskaskia Indians in which the Federal government would agree to “give annually for seven years one hundred dollars *An act regulating the grants of land appropriated for military services, and for the society of the United Brethren for propagating the gospel among the heathen, and for other purposes, as extended by: An Act in addition to an act, intituled etc., Ch. 30, 2 Stat. 155-156 (Peters ed. 1845); An Act to revive and continue in force, etc., and for other purposes, Ch. 30, 2 Stat. 236-237 (Peters ed. 1845); and An Act granting further time for locating military land warrants, and for other purposes, Ch. 26, 2 Stat. 271-272 (Peters ed. 1845). 9 towards the support of a priest” and “further give the sum of three dollars to assist the said tribe in the erection of a church.” A Treaty Between the United States of Amer- ica and the Kaskaskia Tribe of Indians, 7 Stat. 78-79 (Pe- ters ed. 1846). The treaty was ratified on December 23, 1803, and included a specific appropriation for a Catholic mission, at President Jefferson's request. Jefferson’s involvement in th: accommodation of the religious nature of the Americar people was not limited to Federal grants for the proselytizing of Indians. It extended as well to general public education. Jefferson was the first president of the school board in the District of Columbia in which the Bible and the Watts Hymnal were used as the pri- mary texts. J. Wilson, Public Schools of Washington, 1 Records of the Columbia Historical Society 4 (1897). Mr. Jefferson also advocated religious instruction at the Uni- versity of Virginia, of which he was a founder. Although the University was wholly governed, managed and con- trolled by the Commonwealth of Virginia, Jefferson believed that religious instruction on the school’s premises was “most interesting and important to every human being. ..The want of instruction in the various creeds of religious faith existing among our citizens presents, therefore, a chasm in the general institution of the useful sciences.” McCollum v. Board of Education, 333 U.S. 203, 245-246 (1948) (Reed, J., dissenting), citing 19 The Writings of Thomas Jefferson 414-417 (Memorial ed., 1904). Clearly, Jeffersonian state disestablishment did not require the eradication of religion from public schools, even though Virginia’s Bill for Establish- ing Religious Freedom may have had much more stringent provisions than those constraining the Federal government. James Madison, although often cited as antagonistic toward religion, participated in the creation of several 10 government sponsored religious practices.‘ Madison is repeatedly noted for leading the disestablishment forces against Patrick Henry’s A Bill Establishing a Provision for Teachers of the Christian Religion, which would have pro- vided a subsidy to religion. It is apparent, however, that Madison’s Memorial and Remonstrance Against Religious Assessments was specifically pointed at discriminatory aid along sectarian lines. In fact, Madison seemed especially opposed to inequal treatment caused by discrimination along denominational lines. R. Cord, supra, at 20-21. Later acts by Madison further clarify that he was not opposed to governmental benevolence towards religion gen- erally. A primary example of Madison accommodating the religious needs of the American people occurred three days before final agreement upon the wording of the Bill of Rights. Madison, a participant in the first House of Repre- sentatives, was a member of the congressional committee that recommended the chaplain system. H. R. Rep. No. 124, 33rd Cong., Ist Sess. (1789), reprinted in 2 Reports of Committees of the House of Representatives 4 (1854). Madison himself voted for the bill authorizing payment of chaplains for their services. 1 Annals of Cong. 891 (J. Gales ed. 1834) and Marsh v. Chambers, 103 St. Ct. at 3333. Reverend William Linn was elected as chaplain to the House of Representatives and five hundred dollars was ap- propriated from the Federal treasury to pay his salary. On September 25, 1789, the same day that final agree- ment was reached upon the wording of the Bill of Rights, *It is interesting to note that in the same year that Madison and Jefferson's collaborative efforts resulted in the passage of A Bill for Establishing Religious Freedom, Madison presented to the Virginia legislature A Bill jor Punishing . . . Sabbath Breakers, which i a fine of “ten shillings for such offence.” McGowan v. Mary- land, 366 U.S. 420, 438-439 (1960). 11 the House resolved to request that President Washington proclaim a Day of Thanksgiving to acknowledge “the many signal favors of Almighty God.” Journal of the House of Representatives 123; Journal of the Senate 88; Marsh v. Chambers, 103 S.Ct., at 3334. James Madison endorsed this and other proclamations calling for Thanksgiving, fast- ing and prayer. R. Cord, supra, at 28-29. Indeed, later, as President, Madison issued at least four “Thanksgiving Day” executive proclamations. Those occurred on July 9, 1812, July 23, 1813, November 16, 1814 and March 4, 1815. Id. at 31. These actions of Madison and Jefferson are of particular interest because they are contemporaneous with, and proxi- mate to, the drafting of the First Amendment. As this Court has held, “historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied... their actions reveal their intent.” Marsh v. Chambers, 103 S.Ct. at 3344. If James Madison and Thomas Jefferson are an anomaly, it is because of their fervor for disestablishment. Yet, the evidence is clear that both Virginians advocated, partici- pated and authorized Federal government funding and sponsorship of patently religious activities which generally exceeded that degree of accommodation fostered by the Alabama law involved in the present case. B. EXECUTIVE AND CONGRESSIONAL ACTIONS IN Support Or Our RELIGIOUS HERITAGE. Other manifestations of governmental benevolence towards religion of a greater magnitude than the Alabama law are manifest. Universally, the oath of office for Presi- dents has been administered upon the Bible. By resolution 12 adopted by both houses of Congress it was decided that “divine services” should be heid in St. Paul’s Chapel in the District of Columbia to be “performed by the Chaplain of Congress” following the administration of the oath of office to George Washington in 1789. P. Stokes and L. Pfeffer, supra, at 87. On April 30, 1789, Washington upon assuming office stated, “. . .it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe. . .” Engel v. Vitale, 370 U.S. at 446 (Stewart, J., dissenting). Each of our Presidents, from George Washington to the present Chief Executive has, upon assuming his office, asked the protection and help of God. An impressive grouping of such invocations appears in Engel v. Vitale, 370 U.S. at 446-449. As previously mentioned Presidents Washington, Adams, and Madison issued, at the request of Congress, Presidential Thanksgiving proclamations. Such executive expressions can not be cavalierly relegated to the archaic past, but must be recognized as part of our rich inheritance of “countless. . . illustrations of the Government’s acknow- ledgement of our religious heritage and governmental spon- sorship of graphic manifestations of that heritage.” Lynch v. Donnelly, 104 S.Ct. at 1361. Of course, such accommodations to the spiritual needs of the American people are not limited to the Executive Branch. Congress, besides being integrally involved in the adoption of legislative prayer and paid Congressional Chap- lains, initiated the proclamations already discussed. Perhaps more important the Continental Congress enacted the North- west Ordinance on July 13, 1787. That ordinance, in part, provided: Religion, morality, and knowledge being essential to good government and the happiness of mankind, 13 schools and the means of education shall forever be encouraged.” Ord. of 1787, July 13, 1787, Art. 3, reprinted in Documents Illustrative of the Formation of the Union of American. States 52 (1927). On August 7, 1789 (after the agreement to the final wording of the Bill of Rights), the Congress of the newly formed Federal government reenacted the North- west Ordinance. An Act to provide for the Government of the Territory Northwest of the river Ohio (Northwest Ordi- nance), Ch. 8, 1 Stat. 50-51 (Peters ed. 1845). This Federal grant of land for the promotion of “religion, morality, and knowledge” was not a unique occurrence among the early settlers. For example, in 1795, President Washington concluded a treaty with the Oneida, Tuscorora and Stockbridge Indians in which the United States paid “one thousand dollars, to be applied in building a convenient church at Oneida,” to replace the one which the British burned in the Revolutionary War. A Treaty Between the United States and the Oneida, Tuscorora, and Stockbridge Indians, dwelling in the Country of the Oneidas, 7 Stat. 47- 48 (Peters ed. 1846). Later in 1819 in a treaty with the Wyandot Indians, Article I of the treaty granted six hundred and forty acres to the rector of the Catholic Church of St. Anne in Detroit. Articles of a (Wyandot Indian) Treaty, 7 Stat. 160, 166 (Peters ed. 1846). In 1825, President John Quincy Adams provided in a treaty with the Osage Indians for a “Missionary establishment” to teach, civilize and im- °A. Stokes and L. Pfeffer comment on one manifestation of such encouragement: “Also worthy of mention in this listing of the official acts and utterances of the founders before the Constitution are the resolution of Congress in 1777 instructing the Committee on Commerce to import twenty thousand copies of the Bible and its resolution of 1782 approving ‘the pious and laudable undertaking’ of a printer named Robert Aitken in publishing an American edition of the Holy Scriptures.” A. Stokes and L. Pfeffer, supra, at 85. 14 prove the indians. Articles of a (Osage Indian) Treaty, 7 Stat. 242-43 (Peters ed. 1846). As late at 1833, we find the Federal government obligated to pay “thirty seven hundred dollars, for the erection of a mill and church” as terms of a treaty with the Kickapoo Indians. Articles of a (Kickapoo Indian) Treaty, 7 Stat. 391-392 (Peters ed. 1846). Besides these treaties with the individual Indian tribes, Federal money was expended to support religious schools and training a policy of “civilizing the Indians.” This policy was implemented almost exclusively by religious societies, fulfilling the Federal government’s “duty to use... [its] influence in converting to Christianity and bringing within the pale of civilization” the Indian tribes. 2 J. Rich- ardson, A Compilation of the Messages and Papers of the Presidents, 1789-1897 415-416 (1901) (Address by Presi- dent John Quincy Adams in his Fourth Annual Message to Congress on December 2, 1828). The list of tribes and Missionary societies supported from Federal funds is quite extensive. 2 American State Papers 275-277 (J. Gales ed. 1834). Direct subsidies were given from the Federal treasury to the following religious societies: the United Brethren, the American Board of Commissioners for For- eign Missions, the Baptist General Convention, the Prot- estant Episcopal Church of New York, the Hamilton Baptist Missionary Society, the Methodist Society, the Synod of South Carolina and Georgia, the Society of Jesuits, the Cumberland Missionary Board, and the Society for Pro- pagating the Gospel. 1 U.S. Office of Indian Affairs, Annual Reports of the Commissioner of Indian Affairs, 1824-1831 (1976) (Report of November 24, 1827). These treaties and grants are of particular relevance since, as this Court has noted “the interpretation of the Establish- ment Clauses by Congress in 1789 fakes on special signifi- 15 cance in light of the Court’s emphasis that the First Con- gress ‘was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument.’ ” Meyers v. United States, 272 U.S. 52, 174- 175 (1926); Lynch v. Donnelly, 104 S.Ct. at 1359. Congressional actions seeking to embody the religious nature of the American people are not limited to the early years of our Republic. One such recognition is the relatively recent adoption of “In God We Trust” as our national motto. Joint Resolution to establish a National Motto of the United States, Ch. 795, Pub. L. No. 84-851, 70 Stat. 732 (1957). The phrase is