 Well, welcome. My name is Gregory Bowman, and I have the honor and privilege of serving as the Dean of Roger Williams University School of Law. We are so excited to have you here with us today for our Law Review Symposium, Is This a Christian Nation? Our law school is very proud to present this symposium, and it's an important and a timely topic. It's one in which the U.S. Supreme Court is in fact very active currently. I'd like to read from the summary description of this symposium. Did the founders intend the United States of America to be a Christian nation? Does it violate the establishment clause of the Constitution to have a Latin cross on a World War I memorial, on a public highway, or a crash on the front lawn of a town hall, or to open a meeting of a public body with the Lord's Prayer? How should history be used to resolve such questions? We are proud today to assemble some of the nation's, in fact, the world's most prominent scholars for this virtual symposium. It truly is an all-star cast, and we'd like to extend our thanks to the Freedom from Religion Foundation for a generous grant that made this symposium possible. The live symposium you are hearing today is important. We hope you enjoy it. But even more important is that major articles by all of our speakers today will be published in the special symposium issue of the Roger Williams University Law Review. The special issue will be sent to all federal appellate judges and to all constitutional law and legal history teachers in American law schools. And again, thanks to the Freedom from Religion Foundation for making that possible too. So enjoy the day today. We are so pleased that you are attending, and we hope you enjoy our symposium. And now I'm pleased to turn the virtual podium over to my faculty colleague, Carl Pogus. Carl, the podium's yours. Thank you very much, Dean Bowman. And welcome, everybody, to our Is This a Christian Nation symposium. For those of you who've seen the movie Charlie Wilson's War, you may remember a scene at the beginning of that movie, which is an early scene establishing something about Congressman Charlie Wilson's character. When Congressman Charlie Wilson, who was based on a real Congressman from Texas named Charlie Wilson, played by Tom Hanks in the movie, is visited by a constituent from his congressional district in rural East Texas, a fictitious character named Larry Little, who was played by the wonderful character actor Peter Gehry, who incidentally, although he does a fabulous performance of portraying somebody from rural East Texas is actually from Providence, Rhode Island. So Larry Little comes to see Charlie Wilson with a concern. And Charlie, when the two of them sit down in Charlie Wilson's office, asked Larry Little what the problem is. And Larry Little describes the problem as follows. He says, every single year since the world was young, a firehouse in the town of Nacodosius has displayed a crash at Christmas time. Now the ACLU has filed a suit against the township for displaying a religious symbol on public property. It's Christmas time. It's a crash. I could understand if we were in frigging Skarsdale, but this is in East Texas. And I want to know who we're offending except two lawyers from the ACLU. This is a terrific script, by the way. It's an Aaron Sorkin script. And we know a couple of things about Aaron Sorkin. He's probably the greatest screenwriter of the day. He was raised from a Jewish family and he was brought up in, as he puts it here, frigging Skarsdale. Charlie Wilson says, look, Larry, there's a church, the first Baptist church of Nacodosius, one and a half blocks from the firehouse. And they've got a beautiful rolling lawn. Why don't you just pick up the crash and put it on the church property? And everybody goes home happy. And Larry Little says there's a larger point here. And Wilson says, I was afraid of that. And Little describes a larger point. And this is what he says. This is a Christian nation, Charlie, founded on Christian values and beliefs. We welcome other faiths to worship as they wish. But when you can't put an activity scene in front of a firehouse in Nacodosius township, something's gone terribly wrong. And incidentally, before the scene begins, the Larry Little character tells somebody while he's waiting to see Charlie Wilson, that he's vice president of an organization named Americans for American values. Americans for American values. There's an awful lot in this little snippet of a scene. The assumption that the values that we hold, I don't mean we can collectively, I mean we individually, somehow the true American values. And there's the assumption that this is a Christian nation. And why is it a Christian nation? Larry Little says it's a Christian nation, because the founders established it that way. Well, I think you're likely to see today that a lot of those assumptions are dubious, dubious for a number of reasons, including what a lot of the founders, key founders believed. So this is a huge topic, because it is now animating a real struggle, where many conservatives believe that religion is somehow under attack in the United States. And a lot of liberals are understandably concerned that conservatives are using a cry of religious freedom and religious liberty to tear down the wall separating church and state. So this little scene in Aaron Sorkin's script tells us something about what's at stake here. I'd like to join Dean Bowman in thanking the Freedom from Religion Foundation for a grant that has enabled us to attract an all-star cast here and give you a really terrific symposium. And I'd particularly like to thank Andrew Sadel and Rebecca Markett of Freedom from Religion Foundation for all of the help and consultation they gave me in selecting contributors to this symposium. We're proud to say that Rebecca, proud to mention that Rebecca Markett is an alumna of the Roger Williams University School of Law. Let me introduce our first speaker, Teresa Beijon. Professor Beijon is an associate professor of political theory at Oxford University. Before coming to Oxford, she taught at the University of Toronto and at Columbia University. Next year she will hold a Fulbright visiting research chair in constitutional and political theory at McGill University in Montreal. Professor Beijon received a master's in philosophy and political thought, an intellectual history from Cambridge University, and a PhD in political science with distinction from Yale University. She is the winner of many distinguished awards. Her first book, Mirror's Civility, Disagreement in the Limits of Toleration, which was published by Harvard in 2017, made quite a splash when it came out, got an awful lot of acclaim. She is working on a second book right now for Harvard University Press to be entitled First Among Equals, The Practice and Theory of Early Modern Equality. She's also written for many popular venues, including the New York Times, The Atlantic and The Washington Post, and she's appeared on BBC Radio and PBS and PR and other broadcast venues. Her TED talk is Civility a Sham has been viewed almost 1,700,000 times. Take it away, Professor Beijon. Thanks. Thanks, Carl. That's a really kind introduction and thanks to Dean Bowman and to Professor Bogus and the other organizers for not only putting this conference together, but keeping the show on the road under these really extraordinary circumstances. I was saying before to the organizers that it's always a pleasure to get to talk about Roger Williams, but it's especially a pleasure for me to get to talk about Williams at a university bearing his name. So I need to confess that when I wrote the paper that I've contributed to this symposium, I didn't really have any idea that the themes I addressed in it would be as timely as they've turned out to be in the wake of Justice Ginsburg's death. So in my talk, I'm going to touch on the valorization of dissent and dissenters in the United States. I am going to talk about many patron saints, if you will, of secular liberalism, and I'm even going to deal with the century's old controversy about whether or not Roman Catholics should be allowed to serve on the judiciary. But as I tell my students, 17th century intellectual history is nothing if not timely. Anyway, so for many political theorists like myself, the question we're discussing today is America a Christian nation? We'll provoke a straightforward no. Empirically, while a strong majority, so 65% in 2019 of Americans still identify as Christian, when asked the number has declined sharply in recent years and at the same time there's been this precipitous rise in the number of so-called nuns, that is Americans who have no religious affiliation. More important than fact, though, for a political theorist like myself, is theory. And in theory, the United States of America is a liberal democracy, which means it's also aspirationally at least a secular society. While the vast majority of Americans are and have been Christians, on the national level, the state is committed to disestablishment, that is to the absence of public subsidies to religion or formal relations between the government and any particular church. On this view, the formal separation of church and state, institutionally, symbolically, but above all financially, appears as essential in securing the secularism of a liberal democracy. And yet even political theorists who, you know, can be insensitive to facts are forced to recognize that the principle of the separation of church and state has manifested very differently in different places. So famously French secular, secularism or Lisa T is notoriously aggressive and established churches remain alive and well, not only among the social democracies of Scandinavia, but in the United Kingdom, where the Church of England and its clergy continue to enjoy state funding and privileges not extended to other faiths. This makes many American liberals or just many Americans living and working in the UK like myself uneasy. Any student coming from the United States to study at Oxford, for example, as I did at the tender age of 20 will not be alienated by the widely copied sacred architecture, but she will be alienated by the presence of Anglican chapels and chaplains at the center of college life in a publicly funded university, not to mention the continuing presence of bishops in the House of Lords. To an American that seems necessarily offensive as a clear violation of the principle of disestablishment that we take to be implicit in Thomas Jefferson's phrase, the wall of separation between church and state. On this point, Americans can appeal as we tend to do to the First Amendment into the establishment clause as the rock on which our nation failed to build its church. And while the meaning of the establishment clause has been much debated, I'm sure we're going to be hearing a lot more about it today. James Madison's objections to the public maintenance of any particular religion or its personnel were clearly grounded in the sense that such an establishment violated the equal right of all citizens to the liberty of conscience by compelling them to support financially or otherwise a faith contrary to their own. And that sort of seems clear enough today. So on this view, the quintessentially American answer to the question is America a Christian nation ought to be a double no. From its inception, the United States has had no established religion, nor has it had any established church. There's a well-known historical narrative that we like to tell that traces this disestablishmentary in view of liberty of conscience through Madison and Thomas Jefferson to John Locke in the 17th century. Other scholars like to start a bit closer to the home. They note that Roger Williams of Rhode Island used the phrase wall of separation more than a century before Jefferson did. No less an authority than Martha Nussbaum has elevated Williams as America's first founder, as well as the first in a long line of liberal thinkers culminating in the leading liberal political philosophers of the 20th century, John Rawls. So in my book that Professor Rogus was kind of enough to mention near civility, I argued that the self understanding of American liberals like Nussbaum as descendants of Locke and Williams alike reflects a widespread misunderstanding of those thinkers actual views on religious toleration as well as the process by which our peculiar first amendment faith, if you will, developed. But in this talk, I want to focus more narrowly on the issue of disestablishment and consider whether either of these patron saints of secular liberalism, so Williams on the one hand and Locke on the other, were actually committed to disestablishment as a necessary implication of the separation of church and state. To foreshadow my conclusions, I will argue today that Williams did conclude that disestablishment was necessary, but John Locke, that famous paragon of liberalism, did not. Okay, while American jurists and legal historians routinely look to the founding to understand the meaning of the establishment clause, they generally fail to set these 18th century debates in the context of the longer running religious conflicts and debates that dominated post-Reformation Europe. And I think that's a problem because those debates were not only relevant intellectually, but they were also really relevant because they produced so many of the religious refugees, as well as the arguments, concepts and categories, etc., that came to the new world and then set the stage for debates at the end of the 18th century. And so the neglect of 17th century history in particular is in stark contrast with the almost obsessive attachment to early modern toleration debates as the origin of political liberalism among political theorists. So while political theorists are obsessed with the 17th century as important for what became liberalism, legal historians and jurists tend to neglect it. The story of liberalism, as John Rawls himself told it, was the story of the rise of religious toleration in early modern Europe and the gradual realization that political stability did not require religious unity. And so while Rawls' tale is celebratory, toleration rises and liberalism becomes ascendant because of it, the same narrative has been rehearsed in a in in reverse or in a debunking fashion by critics of liberalism, like Winifred Sullivan and Stanley Fish. So these critics argue that the liberalism of societies like the U.S. is itself a form of hegemonic, if submerged Protestant Christianity, right? And so in this view, secular liberal democracies like the U.S. are not actually neutral between religions. What they do is that they demand that all other religions recreate themselves in the image of Protestant Christianity as belief-based, individualistic and volunteeristic creeds. So on the critical view, liberal democracies like the U.S. have an established religion, namely Protestantism, even if they don't have an established church. Of course, neither version of this of the early modern story is going to placate a historian, right? So in Mayor Civility, I argued that the United States owes its peculiar constellation of individual rights to free exercise and expression that we encapsulate in the First Amendment. We owe that to the relative abundance of sectarian evangelicals like Roger Williams in the colonies. But this kind of evangelical and sectarian Protestantism was hardly dominant in England, let alone the countries of continental Europe. And elsewhere, I've noted the persistent, I think the best word for it is persistent parochialism of liberalism and liberal political theory when it comes to talking about toleration and the issues of religious diversity. Indeed, the word parochial is itself sort of reflective of the process whereby in the 16th and 17th centuries, the newly national church of England and the centralizing Tudor monarchy assumed or literally nationalized not only the religious but the administrative and educative and economic functions of the Anglo-Catholic English Church. Understanding that process whereby a nationalized church nationalizes Catholic institutions, ideas, personnel is really essential to understand the politics of establishment in the 17th century and what Puritans like Roger Williams, many of whom emigrated to the New World, were really concerned about. Many Americans are familiar with the term Puritan today, often as a pejorative as H. L. Menken reminds us. Puritan is the fear that someone of the fear that somewhere someone might be happy, is that right? But anyway, the term Puritan is actually coined in the 16th century by the opponents of people within the Church of England, which is now Protestant, who believed that the work of reformation hadn't gone far enough. So Puritans were people who couldn't help but notice the ease with which the Anglican church had accommodated itself to Anglo-Catholic institutions, not only parishes, but Episcopacy, that is ruled by bishops, miters, surpluses, kneeling, incense, and all the rest. And so they concluded on this basis that the English Church had not actually adequately separated itself from that institution they called the whore of Babylon, namely the Roman Catholic Church. So initially these Puritans who, while having their private meetings, they were committed to remaining members of the Church of England because they wanted to reform the National Church from within. But over time and under consistent persecution, some of those Puritans did separate themselves formally from the established Church and some of them even moved overseas, famously the pilgrims of Plymouth Rock. Still, the majority of Puritans stayed in England, holding on to this hope that they were going to be able to properly reform the Anglican Church. And so when the Civil War broke out in 1642, almost the first item on the Long Parliament agenda was to abolish bishops and establish a more godly form of Church government in its place. But the Puritans in Parliament were themselves divided. So on the one hand you had Presbyterians who wanted to impose a kind of Scottish discipline on the existing National Church, and on the other hand you had Congregationalists or Independents who wanted individual congregations to be free, to congregate and to choose their own ministers, but to do so under the watchful eye of a kind of centralized regulatory body that would be in charge of training and credentialing those ministers so as to ensure orthodoxy. In any case, they failed to really reach an agreement and the Episcopal Church of England, that is bishops, were reinstituted and restored in 1660. And it's this Episcopal Church of England that remains the established Church in the UK today, or at least in England today, and that we know as the Episcopalian Church in America. And after restoration of the Church and of the monarchy in 1660, they got down to the business of persecuting dissent with the support of parliament. So it's in this context that debates over religious toleration really hit the forefront in England, and the most famous participant in these is of course John Locke, I'll talk more later, but it's important to note just that generally speaking in the 17th century in England, if you were in favor of religious toleration, you had one of two policies in view. The first policy we might call indulgence. And what indulgence meant was simply repealing, abolishing, or suspending the existing penal laws that forced you to go to church or punished you when you didn't. But the second policy was known as comprehension. And the point of comprehension was to try to make the established Church in England more latitudinarian, by which they met more relaxed about orthodoxy and more inclusive in its sacraments. So the idea was that we would be able to comprehend dissenters back within the established Church and welcome them back into the fold. But what you'll notice here is that we have indulgence on the one hand, comprehension on the other. Neither policy calls for disestablishment, right? Both forms of toleration presuppose the continued existence of an established Church. And most crucially, both policies leave intact the so-called Test Acts, so namely the pieces of legislation that were designed to keep Catholics, atheists, and later Quakers out of office, and indeed off the bench. So, again, for an American, this can sound a bit foreign, but it is just really important to recognize that not only is the Church of England established to this day, but the Test Acts remained on the books until well into the 19th century. And the Church of England maintained an important bureaucratic and administrative role, particularly in the context of public education. And the universities remained the key credentialing bodies for clergy in the established Church. And religious tests indeed remained enforced in the universities up until the very end of the 19th century, even when they had been abolished or had lapsed in politics. And so it's this thoroughly establishmentarian context that we have to have in mind when we turn to someone like Roger Williams. So when Roger Williams left England in the 1630s, like many Puritans, he didn't simply want to leave or flee the rising tide of persecution back home, he also wanted to try what life would be like in a society of saints. He was inspired by John Winthrop and he believed that Boston, Boston would be a city on a hill in which the righteous might live alongside the like-minded as models of Christian charity to the unregenerate. But of course, Williams infamously was soon disappointed and upon his arrival in Boston in 1631, he refused to take a position that had been offered to him in the Boston Church because he realized that that church was actually still formally unseparated from the Church of England. That is, members of the Boston Church would worship in their parish churches when they were back in England and Williams, because of this, he saw it as still polluted by Catholic dogma, doctrine, and personnel. And so when Williams settled in Massachusetts Bay, he turned his gift for learning languages to mastering the local Algonquin dialects because he was engaging his own independent missionary efforts among the local tribes. And it was through his American associates, namely these American Indians, Williams began to see that not only were the un-Christian Christians, as he called them, in Massachusetts Bay, still polluted by Catholicism, they were actually the worst kinds of hypocrites because they lived on land that they had stolen from the natives in the name of Christianity. But that wasn't Williams' only radical or offensive view, he was also caught defacing an English flag by cutting out the cross of St. George because he saw this as an unacceptable conflation of civil and spiritual matters. And much like the Quakers would later, Williams also saw Massachusetts reliance on civil oes as a form of compulsory religious worship in the service of the state. So all of this is to say that Roger Williams was too Puritan for his fellow Puritans. And in 1635, the government of Massachusetts took the extraordinary step of banishing him. At the instigation, he believed at least of one minister in particular, a man named John Cotton. And so Williams would carry his grudge against Cotton into print. And the wall of separation phrase, which we credit him with coining, was originated in his published response to Cotton's justification of Williams' banishment. And it's not clear that when he settled on the land of Providence and what would later become the colony of Rhode Island and Providence Plantations, it's not clear that Williams had set out to found a colony of his own, let alone a tolerant one. But it is true that he was followed. He was followed by radical dissenters like himself. And to say that the success then of the experiment with toleration in Rhode Island was not a foregone conclusion, I think really is an understatement. Neighbors in New England called it Rogues Island. And they complained that Williams' colony had become the quote, receptacle for all sorts of riffraff people, nothing else but the latrine of New England, unquote. So you know we're having this long standing debate about, you know, changing the name of Rhode Island, Providence Plantations, Destrode Island. But why don't we just, you know, call it the latrine of New England, surely that will go over well. But in any case, the latrine of Rhode Island was also for a time the most tolerant society that the Christian world had ever seen. Rhode Island welcomed Protestants of all stripes, as well as Jews, Muslims, at least in theory, as well as American pagans, and even Catholic anti-Christians, that is followers of the papal anti-Christ, to come and live together on terms of equal liberty, including the liberty to proselytize before their faith. So the most remarkable feature of the colony was the entire absence of an established church of any denomination. This is what Charles II would call the lively experiment in Rhode Island, that is the failure to establish any church at all. And it was an experiment that was going to be repeated 40 years later by William Penn in Pennsylvania, supported by his own Catholic or, you know, Anglo-Catholic sponsor James II. So the fact of disestablishment in Rhode Island is clear enough, but what about the theory? What about Williams's reasons? Commentators tend to view Rhode Island's disestablishment or really non-establishment as the logical conclusion of Williams's social contract theory on the one hand and also his separationist views that followed from that. But in restoring that hedge or wall of separation between the garden of the church and the wilderness of the world, that of course was Williams's phrase, jurists suggest that Williams was primarily concerned to keep the garden safe, that is, the church, i.e., church-state separation was about protecting religion from the corruption of politics. But there are places in his thought where Williams argued directly against establishment on theological as well as political and ethical grounds. So when Williams arrived back in London in 1644 to seek a patent for his colony, he found himself in the midst of that context I was describing to you earlier, that Civil War context where the bishops had been abolished and the Long Parliament was fighting about what form of church government should be established. So Williams intervenes directly in those debates and he addresses Parliament directly. He reminds Parliament of the utter hash that previous governments had made in their efforts to take care of English subject souls. He says, quote, what setting up, pulling downs, what formings, reformings, and again deformings had rained ecclesiastically in England over the past century. Moreover, for Williams to speak of a national church at all, which of course is the phrase he uses, he's not talking about established churches, he's talking about national churches, to Williams that sounds like a denial of Christ's coming, whereby the old covenant of Israel was meant to have given way to the new covenant of universal grace. And so Williams thinks that's not only kind of un-Christian to insist on having a national church, he also thinks it's necessarily going to lead to persecution because, quote, how could the constitution of a national church possibly be framed without racking and tormenting of souls as well as bodies of persons? For it seems not possible to fit it to every conscience. Sooner shall one suit of apparel fit every body, one law, every case, or one size, every foot. This is your annual reminder that Roger Williams is actually quite funny. Williams also directly addressed the issue of state funding for religion. Williams was here, he was concerned less about conscience again than he was about corruption. He invaded against so-called hirelings by which he meant religious ministers trained and employed by the state, and as I tried to make clear already, that was all ministers in the Anglican church. Instead, Williams argued that the state regulation of clergy encouraged ministers to, quote, make a trade of preaching, right, preaching for a living. But the gospel had been given by God to mankind in general, Williams insisted. And so he thought that the gospel had to remain a free gift, literally free, freely given to everyone. And Williams himself had gone to Cambridge, and he says, look, I loved Cambridge. Humane learning is important. Nevertheless, quote, the sacrilegious and superstitious degrees, as they call them, granted by universities, simply encouraged the hireling ministry in its pretense and its cupidity in pursuing religion for earthly reasons. In attacking the universities, Williams was directly aiming at the best means currently available to the state in this condition of civil war and interregnum to maintain any authority over the clergy through licensing and regulation. And I think that's really the point. Understanding universities as credentialing bodies that the state is using to exert control over a crumbling national church, that's the context in which Williams is making his famous arguments. And in that context, you can see that what Williams is offering us is a complete theory of ecclesiastical deregulation as a requirement of Christianity. So in Williams's view, individual Christians must be free to preach and to propagate the gospel, to associate freely with other Christians to that end and to elect their own ministers. And Williams applies that right universally to non-Christians as well, because he thinks everyone needs to be able to do this without fear or favor from any state or any church. And that platform of deregulation is familiar to modern Americans as what we call the free market in religion. It's a famous phrase in Supreme Court, in legal history and scholarship. And it's very much what Madison imagined when he was thinking about rival churches competing for converts, much like firms competing for customers in the economy. Williams famously defined a church as a, quote, company of worshipers like unto a corporation, society or company of merchants, or any other society or company in London. And he argued that, look, you know, when a company goes bankrupt or when its members divide or see each other, that leaves the piece of the city that regulates it intact. He says the city was before them and stands absolute and entire when such a corporation or society is taken down. And he wants churches to have the same status in his society that the civil law precedes them and is superior to them and regulates them. So Williams's market metaphor denied the long standing corporal conception of the church as the body of Christ in favor of a corporate understanding of the church. So the corporal understanding sees individual Christians as members of the body, much like a hand or a foot is a member of the body of Christ. Whereas for Williams, we become members of the church as we are members of a corporation. But that understanding of a church would have been utterly anathema to Williams's contemporaries. And of course, that wouldn't have bothered him because he was used to offending everybody. He was an equal opportunity offender. But that peculiar corporate understanding of a church, which leads then to this system of deregulation and disestablishment is really, really extreme and really wacky from the perspective of 17th century toleration debates. Americans take it for granted, but it's by no means obvious when you're looking at the context in which Williams is arguing. So if asked whether America is a Christian nation, Williams would say the establishment clause follows my example of disestablishment. So the answer has to be no. And anyway, nations for Williams by definition are fallen communities that bring regenerate and unregenerate Christians together, along with non-Christian, infidels, anti-Christians, et cetera, together in one ship of state. You know, it's bad enough that we have to share a ship of state. There's no way we could share a church. Nevertheless, a supreme irony remains that in failing to establish a church in Providence, Roger Williams did inadvertently establish his own religion. So in so far as the First Amendment, again, which adapts that Williams principle of disestablishment, and that's a kind of distinctly American vision of church state relations on the national level as a free market of religions, critics are right to point out that in effect, what's happened is that we haven't disestablished Protestantism. What we've done is establish inadvertently in our legal regime a very particular form of Protestantism, mainly evangelical sectarian Protestantism, right? This idea that churches are congregations like unto a company for trade and that the civil law is superior. And we do, again, insist that other churches recreate themselves in that image. So even in the Catholic Church in the United States has been forced to accommodate itself to a legal regime that accommodates lay and local control of particular churches. Okay. So where does this leave John Locke? Scholars sometimes read Locke's letter concerning toleration, which was published in 1689, as though it were a blessedly brief and, you know, blessedly less scriptural second draft of Williams' bloody tenet. Certainly it was Locke, not Williams, who formulated what we now today see as the commonsensical case for religious toleration. And certainly Locke exercised a direct influence on the First Amendment in a way that Williams didn't through the figure of Thomas Jefferson. So Jefferson famously in 1776 was taking notes on Locke's letter concerning toleration. And he wrote in the margin, quote, it was a great thing for Locke to go so far, but where he stopped short, we may go on, right? And it seems it's wonderful kind of writing this check about what America will achieve and sort of fully realizing Lockean principles. Even so, you might think from the perspective of the 17th century that Locke's letter went pretty far. Consider the preface, which declares that, quote, it is neither declarations of indulgence, nor acts of comprehension, such as yet been practiced or projected among us that we desire, but rather absolute liberty, just and true liberty, equal and impartial liberty, is the thing we stand in need of. So right there we hear a direct rejection of what I described as the two policy options on the table, indulgence and comprehension. The preface to the letter says, no, we need universal liberty of conscience. So that's pretty radical. That's much more radical than anything Roger Williams ever wrote. The problem is that Locke didn't write it, right? And a lot of Jefferson was confused about this, but also a lot of modern scholars have been confused about this. They think that the preface to the letter concerning toleration is written by Locke, but it's not. It's actually written by the person who translated Locke's letter, which was written in Latin, into English, a man named William Popple. So William Popple was a Protestant wine merchant formerly based in France who seemed to have been quite a lot more radical than Locke was on issues of establishment and toleration. Recalling the place of Popple in Locke's letter then reminds us also of the conditions under which Locke wrote that letter in the first place. So like Popple, Locke was in Europe at the time that he wrote the letter. It was in 1685 at the revocation of the Edict of Nantes by Louis XIV, which put an end to the toleration of Protestants in France. And it's the revocation of the Edict of Nantes that leads to the mass persecution of French Protestants or Huguenots. And then the influx of Huguenots refugees, which actually comes from French. It's the idea of these Huguenots refugie, so these refugees in the Netherlands where Locke was and also in England and other Protestant countries. And so Locke writes the letter concerning toleration in response to this crisis of international Protestantism because you have these French Protestants fleeing to other Protestant nations that have their own established churches. Okay. So that is the context. That's the problem that Locke's addressing and we are misled if we think that the kind of famous English of the letter, which is very commonsensical and echoes down to us today, is thinking directly about this problem of whether or not a society should have an established church in the first place. That's not the question. The question is should membership in a particular society be connected to membership in its particular church? On the question of toleration, Locke was notoriously lukewarm about toleration in his earliest writings. And in his first essay directly in favor of toleration, he actually didn't endorse toleration as such. He argued for comprehension, what he called latitudinism. So he thought the point was, well, we need to make the church of England as inclusive as possible. And then we can tolerate the sort of fanatics on the fringe who can't otherwise be accommodated. Of course, Locke would change his tune. He does fully embrace toleration as a matter of right for Christians and non-Christians alike in the letter. But we need to keep in sight this idea that Locke may not actually be doing what Jefferson assumed him to be doing, we assume him to be doing in the letter. We often read Locke as though he's like Williams is talking about churches as voluntary associations on the model of business corporations. That's actually not the case. Locke compares churches to philosophical societies or conversational clubs. There's one point in the letter where Locke compares a church to a club for Claret. But of course, again, this is a place where Locke didn't say that at all. That's Popple introducing a kind of color. And you might think that, oh, well, you know, Popple as a wine merchant was really interested in associating on the basis of a love for wine. Unfortunately, Locke's own clubs tended to be dry clubs. And so maybe Popple was trying to send him a message about Enophilia. In any case, Locke's definition of a church is often compared to Williams, but there's this really important difference. So if Williams understood individual members of a church as being members of a corporation, for Locke, they're members of a club or kind of informal private society. And that private association is consistent with the continued existence of a public church. So scholars tend to say, oh, okay, but actually, I mean, there are plenty of places in the letter where we can infer a commitment to disestablishment on Locke's part. They cite, for example, his claim that nobody is born a member of any church, right, that the idea is absurd, or his very stark claim that there is absolutely no such thing under the gospel as a Christian commonwealth. But what I'd like to insist on here is that Locke's understanding of the necessary separation between church and state was again a matter of separating the standards of membership, right? He agreed that the monopoly of national churches, like the Church of England, did need to be broken, right? It shouldn't be illegal not to attend the established church. Nevertheless, he saw that there were important reasons why one might nonetheless want to maintain a public church, even while they were also private churches in the private sphere. And I think that aspect comes out a lot more clearly in Locke's later letters. He writes three sequels to the letter concerning toleration. It also reflects his life when he returned to England, where he had fled England as a suspected terrorist in 1683. But when he returned, he became a very respected bureaucrat. He was friends with a lot of latitudinary and bishops who were trying to achieve this project of comprehension. And he was instrumental in a movement that becomes known as the Reformation of Manners, which basically says the state should get out of the business of regulating religious belief and in the business of regulating morality. This happens in America in the 19th century. We think of this as the informal establishment, an informal kind of moral establishment where Christians try to crack down on alcohol or lotteries or these kinds of things. For Locke, that was very much his project in the 1690s. Of course, the differences in America, this is the effort of evangelical, greatly awakened Christians. Whereas for Locke, at the end of the 17th century, this attempt to have a kind of informal moral establishment was really the product of an idea that there's a role for latitudinarian gentleman, reasonable gentleman like himself in a tolerant society to make sure that religion itself remains tolerant. The letter famously excludes Catholics implicitly from toleration and atheists explicitly from toleration. But it also insists that no church that teaches other than tolerating itself can be tolerated by the magistrate. And so we tend to read that today as just a kind of commonsensical statement where you can't tolerate the intolerant. But in the context of the 17th century, what we see is Locke is saying there's a role for the magistrate in regulating religious personnel. And that means using the university still as a way to train and credential clergymen as leaders and role models for the rest of society in what we might call reasonable religion. And of course, Locke himself would write a book called The Reasonableness of Christianity. So whereas Williams had kind of inadvertent legal establishment of evangelical sectarian Protestantism in view, Locke does really say well, we can't have any established religion. What he does sort of retain a place for though is an established church and not only in kind of the national church of England as we know it today, but specifically in using institutions like universities to train reasonable gentlemen to work not only in the churches but also in the law to make sure that the separation of church and state in the tolerant attitudes of the populace are maintained. So there are two very different models of how we might think of the place of religion and public churches in a liberal society. For Williams, there's no place for a public church, but at the same time, there is a place for illegal establishment of disestablishmentarian Protestantism. For Locke, he assumes that kind of he assumes the need for a freer market in religion, but he nevertheless says there's an important place for an established church and for the state to use its power to privilege and support institutions like universities to train credential and elevate reasonable gentlemen who will then provide an example to others. Okay, so where does this leave us today? Well, I would say that modern liberalism on the model of John Rawls, who I discussed earlier, actually has a lot more in common with Locke's project than it does with Roger Williams project. That's an argument I made near civility, but it's an argument I'd like to make here as well on the issue of establishment, because Rawls, like Locke, was very concerned that the separation of religion and politics be maintained by the exercise of public reason. And he saw public reason as primarily exercise within the law and in the reasoning of courts. And it's clear that Rawls in his own life and work saw the role of a university to be to educate reasonable citizens and reasonable elites who would then engage in this work of public reason. I'm running out of time, but so let me just conclude with just a couple final points. The first point is that I hope that the history I've recounted here reminds us that there's quite a lot of space between Roger Williams' radical commitment to religious deregulation, both in New England and in Old England, and Locke's more moderate establishmentarian vision of reform. Secondly, I would say that when it comes to the question of, is America a Christian nation? In light of this history, you would have to say no and yes, right? No, there's no established Christian church, but yes, in terms of the legal regulation of religion, there is a particular Protestant understanding of what a church is at work here to which we expect other Christian and non-Christian churches to conform. Finally, I would say the key to liberalism on the Rawlsian and also the Lockean model is to say that liberal societies have no established religion, that's the claim, but they do and should have established churches in the form of universities that educate legal, academic, and other intellectual elites in the culture of liberal and reasonable religion and who attend to maintaining the separation between church and state. And by that, I would just then simply observe that we shouldn't be surprised today to hear so many complaints from conservatives or on the Christian right about the liberal establishment, particularly in universities. We shouldn't be surprised because universities have been sites of fights about the politics of establishment since the 16th century. As for my own answer to the question of, is America a Christian nation? Well, I would say yes and no. We have our established religion. I worry slightly that our established church is under threat not only on the right, but now increasingly on the left. It remains to be seen whether the informal establishment of liberal jurists and intellectuals envisioned by Lockean Rawls can withstand the rising pressure on both sides and maintain its privileged status as America's established church. So that's my incendiary morning presentation. I'm afraid I haven't left much time for questions, but I hope I'll have a chance to discuss later on. Thank you. Well, thank you. Thank you, Teresa, for those remarks. They were really insightful and really interesting. And there will be a chance to discuss your presentation as well as all of the first two panelists at a session this afternoon, starting at, let's see. Well, there's a discussion of the morning sessions. I think at one o'clock, am I right? No, no. Well, I'm going to have to check the schedule to get there later. But there will be a chance to discuss your presentation as well as the others later. Our next presenter is John Rogosta. John is a historian at the Robert H. Smith International Center for Jefferson Studies in Monticello. He's taught law and history at the University of Virginia, at George Washington University, at Oberlin, at Hamilton, and at Randolph College. He's the author of three books, including Religious Freedom, Jefferson's Legacy, America's Creed, which was selected as a featured alternate of the History Book Club, as well as articles and books about the founders and religious liberty. He has, over the course of his career, worked not only as a historian, but as a beekeeper and a practicing lawyer. He's been a member of the advisory committee for the U.S. Court of International Trade and the American Law Institute. And he's a member of the American Bar Federation. He received a BS from Grove City College and both a JD and a PhD in history from the University of Virginia. So, John, the floor is yours. Jared, thank you so much, and thank you all for coming. I only regret that I'm not actually in Rhode Island, and unfortunately, we'll be speaking to you from my home. But, you know, when asked to do a talk on Thomas Jefferson and the wall separation between church and state, and particularly the question of, is America a Christian nation? As Teresa just suggested, academics normally would answer that question relatively easily. No, is the simple answer. But I had two additional thoughts. The first is, when I talk about religious freedom these days, it is usually in the context of training guides at Monticello. And they, of course, deal with the public in a normal year. This is not a normal year, but a normal year, almost 500,000 people visit Monticello. And the guides tell me that the most asked question at Monticello is about Thomas Jefferson and religious freedom. And that's partially because the issue of slavery is addressed affirmatively. But they ask about Thomas Jefferson and religious freedom, I think because they've been told wrongly that somehow Thomas Jefferson's wall separation between church and state is anti-religious or irreligious. Perhaps they've read David Barton's aptly named Jefferson Lies and they have questions. And one has to deal with these visitors, obviously, with somewhat of a velvet hands. Second thing, and I hope that the law students who are listening will pay particular attention, when I was a young litigator, one of my mentors was Phil Fox. Phil Fox was a former Watergate prosecutor. And Phil explained to me that litigators often make the mistake of attacking their opponent's weaknesses. And Phil pointed out that's not the way you win in court. That may be the way you win in high school or college debate, but in court you win by addressing the opponent's strengths. And so it struck me that one of the things I wanted to do was talk about some of the legitimate points that are made and how far one can go on this issue of is America a Christian nation. So with that context, I'm going to try to talk briefly about three things. The first is, don't we need virtue and morality among American leaders? Or at least didn't the founders understand that we needed virtuous and moral leaders and that religion, in particular Christianity, would promote morality? Second, what about religious government officials? Certainly officials should not become a religious or irreligious when they take the oath of office and shouldn't we expect that our officials will be religious? And third, if I have time and I do want to leave time for some immediate questions when I'm done, what about coercion? Is coercion necessary for violation of the establishment clause? But before turning to those three things, let's start with a more fundamental question. Since I'm going to address especially Thomas Jefferson and history, let us ask the question of why do we have a wall separation of church and state? Why do we want a wall separation between church and state? Too often, especially as lawyers, we simply assume that that's true. And let me suggest there are three groups of reasons, two of which people address commonly, but there is a third group of reasons. The first is political reasons. James Madison certainly would point out, Jefferson would point out that minorities, dissenters in religion had always been abused in an established hierarchy. Kings, nobles and priests loaded with misery that people of France, Thomas Jefferson says, creating oceans of blood because people did not agree on religion. The flip side of that, the problem with minorities was that in every country and in every age, the priest has been hostile to liberty. He is always in alliance with the despot. So the flip side for Jefferson of the political reasons for a separation of church and state is when the government and the church get together, the tyrant is in league with religion and they somehow protect tyranny rather than protecting the people. Certainly Jefferson would be appalled with the idea of court evangelicals in the current administration, that it's that alliance between church and state which is very politically dangerous. Second reason or group of reasons are philosophical, what we might say the need for enlightenment, that people want for a functioning republic to have independently thinking people. Thomas Jefferson famously says that I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man. This of course is emblazoned on the Jefferson Memorial. People forget that that comment was made in the context of religious freedom, that we have to have religious freedom because if the government tells you what to believe or what to think, especially on such an important issue as religion, then it interferes with the pre-thinking individual that we have to have because they'll keep control of the government by thinking intelligently and critically about having a government. But there is a third group of reasons that I think people often miss, although Teresa certainly would agree when she talks about Roger Williams and John Locke, and that is theological reasons. In the 18th century building on some of that 17th century history, one of the critical issues for evangelicals and religious dissenters was that the essence of religion was for a person to have a relationship with God and that relationship had to be personal, no mediation, no pope, no bishop, no priest standing between you and God. And what God wants is you to voluntarily commit to God and to pray to God. If someone puts a gun to your head and says pray, that's no good to either you or to God. If someone pressures you, twists your arm, or pays you to pray, that's no good to you or to God. And so the evangelicals talked about this in the battles over religious freedom in early America. Religion and morality can be promoted only by the internal conviction of the mind and its voluntary choice with such establishments cannot affect the Presbyterians in Virginia during the debates over the Virginia statute for religious freedom. For the discharge of the duties of religion, every man is to account for himself as an individual in a future state, not to be under the direction or influence of any human being. So these religious evangelicals believed that you had to make your own personal decision, free choice, the idea of free choice Baptist. Jefferson says much the same thing and this is what I think people miss. Jefferson often talks about my religion is between me and my God. Don't talk about my religion. My religion is known to myself and my God alone. This is normally taken to be a statement of privacy. Jefferson doesn't want people crying. I think it's also a theological statement. Jefferson writes at one point, actually when he's talking about the lock that Teresa was referring to, that I cannot give up my guidance to the magistrate on religion because he knows no more of the way to heaven than I do. Compulsion in religion is distinguished peculiarly from compulsion and every other thing. I may grow rich by art. I am compelled to follow. I may recover health by medicines. I am compelled to take against my own judgment. He may have been talking about masks at that point, but I cannot be saved by a worship I disbelieve or abhor. So religion and Jefferson is a very non-traditional religious person. I'd be happy to talk about Jefferson's religion, but he is a very religious person. His religion requires that personal relationship with God and a separation between church and state is essential so that that relationship is entirely voluntary. Well, let's turn to this question then of virtue and morality, because a lot of people who want to support the idea of a Christian nation will make the observation that the founders believed that leaders required to be virtuous and moral for the Republic to work. That's true. Many of the founders believed that. The second step is that they believed that religion, particularly the Christian religion, would promote that virtue and morality. That's true. Most of them, many of them, believed that. But then they go to a third step and they say therefore government needs to or should support religion, which will then support morality and virtue. Well, that's where the syllogism falls apart. Now, where does this idea come from? There's a number of different sources. John Adams talks about virtue and morality and religion, but the most common quotation is taken from George Washington's farewell address. Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. And let us with caution indulge the supposition that morality can be maintained without religion. So that is a widely held view. We need morality and virtue and religion will contribute to morality and virtue. But James Madison asks the relevant question. In his notes, he says, true question is not is religion necessary, but are religious establishments necessary for religion? In other words, that third step, government should encourage religion, is that necessary or even useful? It's worth pointing out that when people talk about George Washington's farewell address, they miss what he actually says at the end of the farewell address. Washington had been urged by Alexander Hamilton to actually say in his address that therefore government needs to support religion and that we should we should actively support religion. Washington cuts that out of the address. And what he says is we need to promote as an object of primary importance, the general diffusion of knowledge, education. If people, again, this very philosophical enlightenment idea, if people are educated and can think for themselves, they will come to the correct religious and moral decisions. Now this is no mistake on Washington's part or it's not simply happenstance. The same thing was done in the Northwest ordinance, the law that was passed originally by the Confederation Congress, readopted by the new Congress under the Constitution, governing what we know of is Ohio, Indiana, Illinois, Michigan, Wisconsin, part of Minnesota. Same thing. The law stated that religion, morality, and knowledge are necessary to good government and the happiness of mankind in these first two steps, virtue and morality, religion. But the law then does not compel anything on religion. What it does instead is say that schools in the means of education shall forever be encouraged. We need to have an educated populace so they can make their correct decisions. Now let me make four observations on this question of virtue and morality then. The first is that these religious dissenters who play such a critical role in supporting the development of religious freedom and a separation of church and state in America, these are people who very fundamentally agree that virtue and morality are necessary and they agree that religion would promote virtue and reality. But harking back to these theological reasons for a separation of church and state, they emphatically reject the idea that government can, should promote religion itself. Petition from Botta Tot County during the religious freedom debates points out that the Roman and Grecian governments before the founding of Christianity encouraged civil virtues without promoting religion. Chesterfield County, it's said to be necessary to unite the church and state to keep men moral. We humbly conceive the civil magistrate as a right to punish immorality so far as society is injured. Amelia County, let civil authority act against disorderly members, ministers to cry against vice, so government will enforce moral requirements, you don't lie, cheat, steal, kill. Ministers will talk about vice. Brunswick County, let laws punish vice and immorality, let ministers demonstrate religious spirits. Montgomery County, good morals are essential to a civil society, but no indication that civil laws are not adequate to that purpose. Rights and wrongs derive from positive law without seeking higher religious authority. But they went, these dissenters went further. They said, not only do you, does the government not need to support religion to promote morality and virtue, but mixing church and state corrupts both. And they say that over and over again. Second observation, this is exactly what Jefferson and Madison are saying as they form the ideas religious freedom. Madison in his memorial and remonstrance against religious assessments points out that to say religion needs government is a contradiction. It is a contradiction to fact for it is known that this religion, Christianity, both existed and flourished not only without the support of human laws, but in spite of every opposition from them. So religion and Christianity don't need government support, but he goes further. It is moreover to weaken in those who profess this religion, Christianity, a pious confidence in its innate excellence and the patronage of its author. And to foster in those who still reject it, people who are not Christian that we're supposed to be making Christian under the great commandment, to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust in its own merits. So it will backfire if government is seen to support religion. People will think the religion cannot stand on its own. John Leland, the famous Baptist minister from the 18th century says, people will believe if government supports us, that we are religious for the loaves and fishes. Jefferson says the same thing in the preamble of the statute for establishing religious freedom. The government's support for religion tends also to corrupt the principles of that very religion it is meant to encourage. Well, why did Jefferson and Madison say this if they understand that morality and virtue are important? Well, Jefferson, who is a student of comparative religion, and as Teresa points out, he sometimes would get things wrong. He didn't have Google. He's not aware of what Roger Williams said, but he does study comparative religion. And he believed that morality was basically universal. He says, you know, I've looked at the Greek religions and philosophies. I looked at Judaism. I've looked at various forms of Christianity. And everybody has the same moral laws. You don't lie. You don't cheat. You don't steal. You don't kill people. And he says that the moral truths are essential. Man was endowed with a sense of right and wrong. This sense is as much a part of his nature as the sense of hearing, seeing, and feeling. It is the true foundation of morality. So Jefferson says we don't need the government to support religion to have morality and virtue. Third point about morality and virtue. In fact, early America demonstrated that if you want to promote religion, the best way to do it is to get government out of the business. After we have disestablishment of separation of church and state, we have an explosion of religions in America. This is the period of the Great Awakening, the second Great Awakening, when we have Jehovah's Witnesses and the Mormons and disciples of Christ and American Methodist Episcopals and Onydians and just this explosion of religion. And people actually comment on this. Alexis de Tocqueville says that basically the separation of church and state in America is what makes America very religious. Lyman Beecher talks about this. Timothy Dwight. Teresa talks about established churches in Europe. I often point out when I'm doing lectures. You know, they have a quasi-established church in Germany. Nobody goes to church. In Italy, every classroom has a crucifix at the front in the public schools. Nobody goes to church. In England, I've been to church in England. Nobody goes to church. In America, where we have a separation of church and state, history has demonstrated it really promotes religion. So if you believe religion promotes morality and virtue, and we need morality and virtue in government, the best way to do it is to get government out of the business and have a free market for religion. A final comment on morality and virtue is I want to, you know, one of the problems today is if we want government to support religion, it's become very difficult as we become more religiously diverse. And Jefferson did predict we would become very religiously diverse. But how do you promote a generic religion today when you have Buddhism and Tao and Hindi and Sikh, much less the Jedi religion and Rastafarians and Druidism and Wiccan? Now, some of the conservative justices have attempted to get around this, in particular Scalia, Rehnquist, Justice Thomas, have said that the First Amendment would permit the promotion only of monotheistic religions, and then they define that as Islam, Judaism, and Christianity. Suffice it to say that there is no historic or textual basis in the Constitution for limiting religious freedom to those three religions. And frankly, it's nobody in the 18th century would have said that. They might have said Christianity, that position lost, but nobody was talking about Islam, Judaism, and Christianity. Now, I should observe that I've been looking at this from an 18th century perspective. Today, one of the arguments that can be made is you don't necessarily need morality and virtue if you have functioning checks and balances. If perhaps we have no confidence that the person in the White House will be moral and virtuous, if you have effective congressional oversight and impeachment and all the laws and checks and balances and judicial oversight, that may serve as an alternative. We could ask whether or not those checks and balances are adequate. But in the 18th century, it is true that they would have said we want moral and virtuous leaders as well. Let's turn to the second question. In a Christian nation, or if we are a nation that is made up of mostly Christians, what happens when a public official is religious? How can a public official be religious? Does a wall separation somehow force that official once they're on the government side of the wall to be irreligious or a religious? Thomas Jefferson actually grapples with this, I think, very well. In 1808, the country was facing a crisis. British ships were seizing American semen on the oceans. We have the buildup for what's going to become the War of 1812. We're almost ready to impose an embargo. And the country really is in crisis. And people write to Jefferson and say, you need to declare an official day of fasting and prayer so that Americans can pray for our nation in crisis. And Jefferson writes back and says, I can't do that. It's a violation of the First Amendment. And this is very important. He says, but it is only proposed that I should recommend not prescribe a day of fasting and prayer. That is that I should indirectly assume to the United States an authority over religious exercises which the Constitution has directly precluded them from. It must be meant too that this recommendation is to carry some authority and to be sanctioned by some penalty on those who disregard it, not indeed of fine and imprisonment, but of some degree of prescription, perhaps in public opinion. So if I, the President, make a formal declaration of a day of prayer, we know that good patriotic Americans are going to pray. And if you don't pray, you're not a good patriotic American. And Jefferson says, that's a violation of the First Amendment. But the people in favor of Christian nationalism would point out, Thomas Jefferson prays in both of his inaugural addresses. He prays publicly. Daniel Drysbeck at American University, for example, says this is virtually indistinguishable from what Jefferson claims to is a violation of the First Amendment in 1808. Well, obviously, Jefferson didn't think so. Jefferson is very clearly explaining what a religious person, and as I said, he's very religious, although not very non-traditional, what a religious person can and cannot do in government. And again, if you remember one thing from what I say today, listen to this, an official can pray, even publicly, they cannot pray officially. An official can pray, even publicly, they cannot pray officially. That's what Jefferson was getting across. And he and Madison talk about this. Jefferson talks about, for example, what happens when an official, let's say the President of the United States joins a particular church, because they're a person and they're religious, they want to join a church. Even when the civil magistrate joins a church, it, the church, neither acquires the right of sword by the magistrates coming to it. It cannot, by the accession of any new member, acquire jurisdiction of those who do not accede non-members. He brings only himself, having no power to bring others. James Madison says the same thing in his detached memorandum, in their individual capacities as distinct from their official stations. People can be as religious as they want. The newspapers picked up on this during Jefferson's religious campaigns when he was accused of being immoral or being an atheist. They said, Mr. Jefferson, in his political capacity, let's it, religion alone, he's not inclined to intervene with his power, but privately, he attends public worship. So this issue of what should a government official, whose religious do, was one that they grappled with, and they made it very clear that we are going to have religious officials in the government, but they can't use the government for their religion. Now this point was made in other contexts as well. When Jefferson became president, his new secretary of treasury, Albert Gallatin, was very concerned about the actions of the customs officials. At the time, this was by far the largest part of the civil service. So in terms of federal officials that people were actually going to engage with, customs officials who were at every port were by far the most common. And Gallatin writes a letter to them saying, I'm very concerned that in the prior administrations, customs officials used their position for political reasons, and this has to stop. But he says, I recognize you're going to be political in their individual capacities. As distinct from their official station, they might unite in recommendations of any sort, whatever, in the same manner as many other individuals might do. But then their recommendations ought to express the true character from which they emanate. Excuse me, that's Madison. But Gallatin says, he will regard any exercise of official influence to restrain or control the same rights in others as destructive of the fundamental principles of a republican constitution. And Jefferson says, I approve entirely. This is basically an early version of the Hatch Act that government officials can be political. They're going to vote. They can go to a political rally, but they cannot do it officially. Again, this concept was adopted in the military. There are military regulations that specify that people, military soldiers, can vote. They can go to a political rally, but they cannot wear their uniform at a political rally. Now, this is a regulation which unfortunately has been ignored in recent years and should be enforced. But all of these concepts were ones that Jefferson grappled with. And he's trying to make clear that we can have religious officials. We can have officials who will be political, but they cannot use their official position to be either religious or political. He fires all of the U.S. attorneys. He keeps on. Most of the civil servants he retains from the Washington Adams administration. But he fires all of the U.S. attorneys because he thought it was so dangerous that these prosecutors had enforced the alien and sedition acts using their position for political purposes. He creates West Point because he was concerned that the officer corps, the army, was largely controlled by people who used their military position for political and religious advantages. So they wanted to separate the idea of being a religious person and an official, which was to be expected from using your official position for a religious or political purpose. Now, finally, and I think I have a little bit of time to touch on the coercion issue. And once again, the question arises of does the establishment require the non-establishment clause require for something to violate the clause for there to be coercion of an individual's religion? And to some extent, it's a little bit, again, like Teresa's point, is there a Christian nation will know is the easy answer. People answer this by yes or no. But the real problem is what do you mean by coercion? You need to define coercion. I think almost everybody could say, yes, you have to have coercion, but it's my definition of coercion. This has really taken off in recent years as an issue. Former Justice Scalia and Justice Thomas and unfortunately Justice Gorsuch in the current court have said you have to have an active government penalty, financial or corporal. Financial support by force of law and threat of penalty is the only way that you have a violation of the establishment clause. This is a very dangerous concept. If that's correct, the government could declare we are a Christian nation or a Hindu nation or a Muslim nation or a Jewish nation. The government could put a Jewish star or Crescent and star on top of the White House and on top of every government building. The president could come out every Friday and say, everybody needs to leave what they're doing and go to synagogue because there's no financial or physical coercion. And obviously, these things have consistently been rejected by the court and Thomas Jefferson rejects it. What Jefferson said in that quote that I read a moment ago is we don't need some penalty of fine and imprisonment, but that when the government takes sides on religion, that's an establishment. Why? Because there's some degree of prescription perhaps in public opinion. That's enough coercion that if the government is saying this is right, you should be religious or you should be Christian. For example, by putting a cross up on public property, that's enough. That's enough coercion for Jefferson and for Madison. Now, what's interesting in this regard is the courts, I think the Supreme Court is really having difficulty with this issue. In the recent Our Lady of Guadalupe case, the court writes in its majority opinion, any attempt by government to dictate or even to influence such matters as religion would constitute one of the central attributes of an establishment. In the county of Allegheny, Justice Kennedy said placing the government's weight behind an obvious effort to proselytize is enough for an establishment. In Espinoza, again this term, indirect coercion is all that's necessary. But these Jeffersonian ideas of influence or the government taking sides did not seem to apply in the Bladensburg cross case. Now, let me mention on coercion that the court continues to make a distinction when you're dealing with children and with schools. This came up in the Lee versus Weissman case about graduation, prayers at graduation ceremonies. Young graduates who are object to the religious position are induced to conform. Jefferson certainly took the same position. Jefferson argues, for example, young children should not be given copies of the Bible until they're older and they can make their own decisions because otherwise you're coercing them. You're influencing that free decision to believe in God. I have a great concern that if coercion requires a financial or physical constraint, what's going to happen to these school cases? It's going to be very hard to justify having a much stricter rule for schools if the Scalia, Thomas and Gorsuch position is adopted. As Lupu and Tuttle point out in their book, this is also very inconsistent with Engel versus Vitale, the case that struck down school prayer, where the court looked at it from the other side, not is the individual coerced, but does the government have a right to be doing what it's doing? It is no part of the business of government to compose official prayers for any group of the American people. Support or influence of the kinds of prayers the American people can say. So this idea that's becoming active, that you need to have financial or physical coercion would be a dramatic change, very inconsistent with certainly the understanding of Jefferson and Madison, dramatic change in our jurisprudence. Even more dramatic change is contemplated. Justice Thomas in the American Legion case, the Bladensburg Cross case, suggested that because the First Amendment begins, Congress shall make no law. It doesn't even apply to the president and to the courts. The president could establish a religion in the executive branch if Scalia, excuse me, Thomas is correct, and this of course is outrageous. Jefferson and others said all authority under the Constitution comes from laws passed by Congress and therefore the president and the judiciary is controlled by the anti-establishment clause. So that's enough of me talking. I do hope people have questions, but it is critically important to recognize that yes, 18th century people including Jefferson and Madison wanted virtue and morality and government officials and wanted a vibrant religion on the private side of that wall of separation and they believed that officials would be religious but they could not use their official position to promote that religion. And so I think that Jared, I have a little bit of time left if people have questions. Great. Anybody who has a question should put it in the Q&A at the bottom and it looks like we do have a question I'll start off with. Here it is. The questioner asked, would love to hear more about Jefferson's personal religion. Was it impacted by his comparative religious studies? What religions did he compare? It's a very good question, Jefferson's personal religion. David Barton says, Jefferson says at one point, I am a Christian. And he said, that's all you need to know. Jefferson says, I'm a Christian. I tell people this is what we call lying by quotation. What Jefferson says is, I am a Christian in the only sense that he, Jesus, ever intended, which is a firm believer, and I'm paraphrasing now, in his ethical doctrines and believing he claimed nothing other than human excellence. So to get to the punchline, Jefferson rejects Jesus' divinity. He rejects the resurrection. He rejects atonement. He rejects original sin. He's not what anybody would call a Christian either in the 18th century or today. He is though a deep theist. He believes there is a loving God. He believes that one should worship that God. Now, how does he get there? Is it because of his comparative study of religion? To some, I think intellectual genealogy is always very difficult. I respect what Teresa and others do in that regard. He does study comparative religion. He studies, especially all of the Grecian religions. He's very fascinated by Epicureanism, for example. He studies Judaism. Modern scholars point out he misunderstands some aspects of Judaism. I think one of the things he really studies is what's happened to Christianity. So, for example, Joseph Priestly's book on the abuse of Christianity over the millennium. Jefferson says he reads every year. And so his comparative study does bring him to what people might have called primitive Christianity, which was believing Jesus is the greatest philosopher of all time, human philosopher, but not God. If you need a simple name, he's probably a Unitarian, but he's a low Unitarian. There's high Unitarian. There's low Unitarian. Jefferson's a low Unitarian. We have several more questions. I don't think we're going to be able to get to all of them, but I'll ask at least the next one, but everyone should know that at 12.45, there'll be a discussion of these morning sessions. You'll be able to ask your questions then. At 11.15, we're going to take a 15-minute break. But until then, let me ask the next question that we received. Where public officials' views and efforts originate from their religious morals, how can that public official enact those morals without officially endorsing that religious viewpoint? That is great, religion and morality when officials come out of their religious view, religious upbringing or their religious point of view. Let me be clear. There are going to be gray areas. And I think this is, by the way, very difficult. Someone could ask an even more difficult question was talking about judicial nominees, because this becomes very sensitive when you're going to sit on the court and you have a particularly religious or moral upbringing. I think they're going to be gray areas and where a person would, if they're a religious person of whatever religion, and they're in government, they're operating either as a legislature, as an executive implementing laws or implementing regulations, where does my moral obligation take over? Certainly, first of all, I would observe that Jefferson and Madison, they believed in this universal morality that all humans have this moral instinct. And they believe that doesn't come from religion. Again, in one of the quotes I didn't read, they talk about that very very expressly. And if it doesn't come from religion, then the morality being universal should be implemented in the laws. Now, it is certainly not, again, they're strict constructionists, they're narrow constructionists. Congress writes the laws and it would not be for a government official in the executive branch to use their own moral or religious views or anything else to change those laws or to interpret those laws in a way that would be inconsistent with the legal mandate. And I realize I'm giving you a little bit of a gray answer, because I think there is a little bit of gray in this answer, because we expect officials will, you know, it's mind-numbing. And this is what, I don't think anybody, unless you're the most doctrinaire person on the left, would suggest that a person, when they become a government official, their religion is purged from them, or the morality that they have built up with over their entire life, partially based on their religion, is somehow purged, or they should ignore their moral and ethical foundation. But you can't use your religion, you can't use your office to support your religion, and you can't use your religion in a manner that's inconsistent with the laws that have been laid down. When Congress passes a law against murder, Congress or your state legislature, isn't it making a moral law? And this is these quotes I was reading from the religious dissenters in Virginia, they say over and over again, of course the legislature is going to regulate morality, and we expect them to do so, and that's all they need to do so, is regulate moral biases. Teresa mentioned in the 19th century, things like prohibition. You don't have to agree with prohibition. Does the Congress have the right to implement prohibition before you had the constitutional amendment? Yeah, they have the right to implement prohibition. Did they do so because their religion drove them to prohibition? Perhaps, but prohibition itself is not a religious limitation, it's a moral limitation. All right, well, great. Thank you so much for your remarks and for answering these questions. We're going to take a 50-minute break and then we'll start our next panel, but as I said, there'll be a chance to ask questions for either of the two morning panels starting at 12.45. So enjoy the break and I'll see, well, I won't see you because I can't see anyone but the panels, but you'll see us in 15 minutes. So come on, come back and we'll hear from Marcy Hamilton and Stephen Green.