“No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship, or religious sentiments, in the said territories.
Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” The Northwest Ordinance, 1787.
The Northwest Ordinance (formally An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio, and also known as the Freedom Ordinance or "The Ordinance of 1787") was an act of the Congress of the Confederation of the United States, passed July 13, 1787. The primary effect of the ordinance was the creation of the Northwest Territory as the first organized territory of the United States out of the region south of the Great Lakes, north and west of the Ohio River, and east of the Mississippi River.
On August 7, 1789, President George Washington signed the Northwest Ordinance of 1789 into law after the newly created U.S. Congress reaffirmed the Ordinance with slight modifications under the Constitution. The Ordinance purported to be not merely legislation that could later be amended by Congress, but rather "the following articles shall be considered as Articles of compact between the original States and the people and states in the said territory, and forever remain unalterable, unless by common consent.
Arguably the single most important piece of legislation passed by members of the earlier Continental Congresses other than the Declaration of Independence, it established the precedent by which the federal government would be sovereign and expand westward across North America with the admission of new states, rather than with the expansion of existing states and their established sovereignty under the Articles of Confederation. It is the most important legislation that Congress has passed with regard to American public domain lands. The U.S. Supreme Court recognized the authority of the Northwest Ordinance of 1789 within the applicable Northwest Territory as constitutional in Strader v. Graham, 51 U.S. 82, 96, 97 (1851), but did not extend the Ordinance to cover the respective states once they were admitted to the Union.
The prohibition of slavery in the territory had the practical effect of establishing the Ohio River as the boundary between free and slave territory in the region between the Appalachian Mountains and the Mississippi River. This division helped set the stage for national competition over admitting free and slave states, the basis of a critical question in American politics in the 19th century until the Civil War.
The Natural Rights provisions of the ordinance foreshadowed the Bill of Rights, the first ten amendments to the U.S. Constitution. Many of the concepts and guarantees of the Ordinance of 1787 were incorporated in the U.S. Constitution and the Bill of Rights. In the Northwest Territory, various legal and property rights were enshrined, religious tolerance was proclaimed, and it was enunciated that since "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." The right of habeas corpus was written into the charter, as was freedom of religious worship and bans on excessive fines and cruel and unusual punishment. Trial by jury and a ban on ex post facto laws were also rights granted.
The Northwest Ordinance was a clear, unambiguous expression of the beliefs of our Founders. There could be no doubt that this new Congress believed that education and morality should go hand in hand and that as long as the religious practices of one did not violate the social compact or encourage criminal acts such as human sacrifice or refusal to support the common defense of the nation. Religion was not only to be tolerated, it was to be encouraged.
In his 1781 Notes on the State of Virginia, Query XVIII: Manners Thomas Jefferson said:
“With the morals of the people, their industry also is destroyed. For in a warm climate, no man will labour for himself who can make another labour for him. This is so true, that of the proprietors of slaves a very small proportion indeed are ever seen to labour. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever: that considering numbers, nature and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest.--But it is impossible to be temperate and to pursue this subject through the various considerations of policy, of morals, of history natural and civil. We must be contented to hope they will force their way into every one’s mind. I think a change already perceptible, since the origin of the present revolution. The spirit of the master is abating, that of the slave rising from the dust, his condition mollifying, the way I hope preparing, under the auspices of heaven, for a total emancipation, and that this is disposed, in the order of events, to be with the consent of the masters, rather than by their extirpation.”
Here Jefferson is referring the immorality of slavery and the wrath of God that will descend on those who support this policy. Jefferson made no bones in referring to God, as he did in the Declaration four times, and warning that an immoral nation devoid of God would no doubt perish.
In his 1796 Farewell Address to the nation George Washington stated:
“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle. ’Tis substantially true, that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric.”
Washington, however, offered on caveat to absolute religious freedom in his September, 1789 letter to the Annual Meeting of Quakers when he gently reminded them of their obligation to support the common defense. In his letter Washington stated:
“Government being, among other purposes, instituted to protect the persons and consciences of men from oppression, it certainly is the duty of rulers, not only to abstain from it themselves, but, according to their stations, to prevent it in others.
The liberty enjoyed by the people of these states of worshiping Almighty God agreeably to their consciences, is not only among the choicest of their blessings, but also of their rights. While men perform their social duties faithfully, they do all that society or the state can with propriety demand or expect; and remain responsible only to their Maker for their religion, or modes of faith, which they may prefer or profess.
Your principles and conduct are well known to me; and it is doing the people called Quakers no more than justice to say, that (except their declining to share with others the burden of the common defense) there is no denomination among us, who are more exemplary and useful citizens.
I assure you very explicitly, that in my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.”
Once again we see how our Founders viewed the value of religion in the life of the nation and its schools.
Even the Wilsonian Progressives believed in the value of religion and morality in our national affairs and government policies. They believed in criminal and civil laws that would protect one citizen from the actions of another. This changed with the advent of the Post 1960s Progressives when they embarked on a campaign of anything goes sexual liberation and a complete intolerance for religious institutions.
Post-1960s Progressivism has steadily eroded religious liberty and the freedom of association in America. Measures such as the Patient Protection and Affordable Care Act and many anti-discrimination laws express a new understanding of rights that rejects the Founders’ view of religious liberty and the freedom of private associations to govern themselves. Recent Progressivism follows the early Progressive belief that effective freedom requires government to redistribute resources in order to provide equal access to the goods that promote mental development and that make life comfortable. This redistributive agenda is combined with a new emphasis on the empowerment of victim groups, sexual liberation, and an aversion to traditional Christianity and Judaism that requires government intervention in the internal affairs of private organizations. Religious liberty today is divorced from the freedom of association and the free exercise of religion, which the Founders understood to be essential for a free society.
The Founders’ conception of religious liberty was anchored in the belief that the natural right of liberty—and religious liberty—meant not only that all persons may worship God in the way each thinks best, but also that all are permitted to follow what they believe to be God’s laws in their daily life outside of church. The Founders understood, however, that actions based on religion are limited by the purpose of the social compact—the security of rights. No one has a right to disturb the public peace, to obstruct others in their religious worship, or to incite crimes.
While the Founders believed that religion, especially Christianity, is helpful to the cause of liberty because it encourages the virtues necessary for the survival of a free society, they held that government involvement in religious organizations must be limited by the very purpose of government: to secure the equal natural rights of citizens to life, liberty, and property. Denial of the rights to religious liberty and to freedom of association violates the right to liberty.
In practice, liberty—including religious liberty—means that individuals are free to organize and conduct their affairs as they see fit through self-governing private associations. Contrary to today’s practice, the Founders understood that churches, businesses, and other private associations had the right to determine all internal policies, including rules for membership, employment, and conduct, free from government interference. As long as these entities do not harm the rights to life, liberty, or property, they should be free to manage their internal affairs.
After 1965, Progressives adopted a new attitude towards religion and private associations, viewing both as threats to effective or positive freedom. The redistributive agenda of early Progressivism required the violation of the natural right to property, but in general the early Progressives supported the traditional family and liberal Christianity. Post-1965 Progressivism (in the interest of sexual liberation) explicitly attacks Christianity and rejects the older morality which supported the traditional family.
One of the first steps along this road to the rejection of morality in our public education system was the 1963 Supreme Court case of Abington v. Schempp. This was a case in which the Court decided 8–1 in favor of the respondent, Edward Schempp, and declared school-sponsored Bible reading in public schools in the United States to be unconstitutional. Associate Justice William Brennan wrote in his concurring opinion:
“[I]t is implicit in the history and character of American public education that the public schools serve a uniquely public function: the training of American citizens in an atmosphere free of parochial, divisive, or separatist influences of any sort. Attendance at the public schools has never been compulsory. [The Constitution reserves] such a choice to the individual parent. The choice which is thus preserved is between a public secular education with its uniquely democratic values, and some form of private or sectarian education, which offers values of its own.”
Not only did this decision fly in the face of the Northwest Ordinance and the intent of the Founders it set the stage for most of the tyrannical laws against religious beliefs we live with today. Used as stare deices for lower courts to follow in subsequent decisions involving the free practice of religion in public schools and the public square such as; banning the singing of Christmas Carols, not allowing Christmas trees on public property, punishing students for wishing a fellow student a “Merry Christmas” or exchanging a Christmas Card. This is tyranny by a minority group that views itself as victims as they feel offended by these practices — practices that do them no harm. This was not the intent of the Founders when speaking of religious tolerance.
Another landmark case along the road to our throwing organized religion’s moral convictions and tenants was the 2003 case of Lawrence v. Texas, decided by a 6-3 vote of the Court.
In this case the Court struck down the sodomy law in Texas and, by extension, invalidated sodomy laws in thirteen other states, making same-sex sexual activity legal in every U.S. state and territory. The Court overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick, where it upheld a challenged Georgia statute and did not find a constitutional protection of sexual privacy.
Lawrence explicitly overruled Bowers, holding that it had viewed the liberty interest too narrowly. The Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Lawrence invalidated similar laws throughout the United States that criminalized sodomy between consenting adults acting in private, whatever the sex of the participants.
In this case Anthony Kennedy wrote for the majority:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”
It seems that the Court uses the 14th Amendment time and time again to override the 10th Amendment
Justice Antonin Scalia wrote a dissent, which Chief Justice William H. Rehnquist and Justice Clarence Thomas joined. Scalia objected to the Court's decision to revisit Bowers, pointing out many decisions from lower courts that relied on Bowers that might now need to be reconsidered. He noted that the same rationale used to overturn Bowers could have been used to overturn Roe v. Wade, which the Justices in the majority in Lawrence had recently upheld in Planned Parenthood v. Casey. Scalia also criticized the majority opinion for failing to give the same respect to stare decisis that three of those in the majority had insisted on in Casey.
Scalia wrote that if the court was not prepared to validate laws based on moral choices as it had done in Bowers, state laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity would not prove sustainable.
He wrote that:
“Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. The Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”
He cited the majority opinion's concern that the criminalization of sodomy could be the basis for discrimination against homosexuals as evidence that the majority ignored the views of most Americans:
“So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal.”
He continued: "Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." The majority's "invention of a brand-new 'constitutional right'", he wrote, showed it was "impatient of democratic change."
The case attracted much public attention, and a large number of amici curiae ("friends of the court") briefs were filed. Its outcome was celebrated by gay rights advocates, who hoped that further legal advances might result as a consequence. And it did!
Now we have another special victim group demanding a redistribution of resources and special protection under the color of law. If a religious institution or secular organizations like the Boy Scouts they are taken to court by the Gay Rights activists demanding their rights to be a part of the organization even if they are not welcomed. If a business like the photographer in New Mexico refuses to photograph a same sex wedding the photographer is fined $6,637.97. What if a Gay photographer would only photograph same sex commitment ceremonies? Would they suffer the same government sanctions. I doubt it. In this case Gay Rights trump religious rights.
To implement the new view of freedom from Christianity and moral self-restraint, government involves itself ever more pervasively in the internal affairs of churches and businesses. Since these private associations all have employees, they are thus subject to anti-discrimination provisions that actively promote affirmative action policies geared toward sexual liberation and the redistribution of resources to supposed victim groups. Private associations are not allowed to govern themselves, and businesses are often prohibited from treating religion as a positive good. Religious liberty is increasingly confined to the freedom to worship. The natural right to liberty and the specific application of that right as religious liberty and the freedom of association are denied by the contemporary Progressive view of religious liberty.