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Church and State in Nineteenth-Century America

Abstract and Keywords

The nineteenth century is tagged as the “forgotten century” for traditional reviews of American church–state relations. Most of the case books and historical studies of the church and state in America focus on the Puritan theocratic experiment in New England; the struggles of religious freedom in Virginia; the drafting of the First Amendment; and the cases of the twentieth century. This article hence focuses on this “forgotten century,” as it illuminates the tremendous ideological, cultural, and demographic changes in America. This period is marked by many factors and events that influenced church–state relations. Some of the many changes that took place during it were: the inclusion of religious free exercise in the First Amendment, which paved the way for religious experimentation and pluralism; the introduction of secularization, which separated church and state; and the introduction of an amoral law, which abolished its religious functions and focused on the economic demands of the time. In this article, particular attention is devoted to the three controversies that defined church–state relations during the nineteenth century. These are: the controversy over Protestant religious exercises in the nation's public schools and the issue of public funding of Catholic parochial schools; the government-sponsored Christianization of American Indians; and the government's attempt to eradicate Mormon polygamy.

Keywords: nineteenth century, America, church–state relations, religious free exercise, religious experimentation, religious pluralism, secularization, Protestant religious exercises, public schools

The nineteenth century is the “forgotten century” for traditional reviews of American church–state relations. Until recently, most legal case books and historical studies of church and state in America have given only cursory coverage to the period between ratification of the Bill of Rights and the beginnings of modern Supreme Court jurisprudence in the 1940s. Histories have commonly focused on the Puritan theocratic experiment in New England, jumped to the 1780s struggle for religious freedom in Virginia and the drafting of the First Amendment, and then fast-forwarded to the early incorporation cases of the twentieth century: Cantwell v. Connecticut (1940) and Everson v. Board of Education (1947). Along the way, mention is sometimes made of a handful of late-1800s Supreme Court rulings on church property disputes and the regulation of Mormon polygamy, as if these decisions represent the sum total of church–state development for more than a century.1

This state of affairs is surprising, and unfortunate, given the rich legacy of the period. Between 1791 and 1900, America underwent tremendous ideological, cultural, and demographic change. Many factors and events of the period influenced church–state relations and popular attitudes toward the same, helping flesh out those nascent principles espoused by the early founders. The legal principles and popular attitudes that developed in the nineteenth century laid the foundation for the church–state holdings of the twentieth century.2 Rather than being a forgotten period in church–state development, the nineteenth century is indispensable to understanding modern approaches to this issue.

(p. 76) Between the 1790s and 1900, several events—some anticipated but most not—affected and modified the church–state template that the founders had installed in the First Amendment and its counterparts in the state constitutions. First, most of the founders had likely envisioned that the principles of religious free exercise and nonestablishment would work their magic within a nation overwhelmingly populated by Protestants, whose institutions would continue to reflect Protestant values. Although the religious diversity in the new republic was unmatched by any other nation, that pluralism was generally limited to a complement of Protestant sects and denominations. In 1800, America had approximately 50,000 Catholics and 2,000 Jews out of a total population of less than 5 million. Before the new century would draw to a close, the nation would experience unparalleled religious diversification, brought about by home-grown religious experimentation and foreign immigration, the latter adding millions of Catholics, Jews, Orthodox-rite Christians, and Buddhists, among others, to the American religious milieu.3 Expanding religious pluralism, more than any other factor, would cause nineteenth-century Americans to reevaluate their understandings of religious equality, liberty, and separation, and affect both the law and public policy in dramatic ways.

A second change to church–state attitudes took place in the early years of the nineteenth century. Although Americans were overwhelmingly Protestant in 1800, religious piety and church attendance were at their lowest levels in the 200-year history of the settlements. Deism had flourished among the founding elite as well as among artisans and skilled workers in many east coast cities until it was discredited by the anti-clericalism of the French Revolution.4 Also during the closing decades of the eighteenth century the momentum supporting legal disestablishment in the states had appeared unstoppable; whereas in 1785 only 6 (of 14) states had prohibited religious establishments, within 15 years that number had grown to 11 states. States also were following the lead of the national constitution by abolishing or liberalizing religious disabilities for public office-holding and participation in civic affairs.5 Thomas Jefferson’s model of a “wall of separation between church and state,” a phrase he advanced in an 1802 letter to a group of Connecticut Baptists,6 appeared to be an achievable reality.

This early secularizing trend, if it can be characterized as such, was brought to an abrupt halt in the initial decades of the century. As the nation was installing its “atheist President” in Thomas Jefferson, it was undergoing an upsurge in religious piety and enthusiasm—frequently called the “Second Great Awakening”—that would quadruple church membership and lead to the establishment and growth of many new denominations, mostly evangelical. Contemporaries and later scholars have referred to the century as the “Protestant Empire,” one in which evangelical Protestant practices and attitudes came to dominate the culture and civic institutions. A leading church historian of the era, Robert Baird, estimated that by 1844, 2½ million Americans were in active communion with an evangelical church, with another 12 million under the influence of an evangelical body, out of a total national population of 17½ million. Importantly, evangelicals were united in basic doctrine and could be viewed “as branches of one great body, even (as) the entire visible (p. 77) church of Christ in this land,” wrote Baird, which he saw as a sign of God’s “election” of America’s role in leading the world into the coming millennium.7 Although modern-day scholars believe such estimates were highly inflated—regular church attendance at its height rarely exceeded 30% of the nation’s population—the actual numbers were less important than the perception. The evangelical perspective quickly became a dominant force in the antebellum culture and helped define peoples’ conceptions of themselves, their communities, and their government.8 In his assessment of the period, religious historian Robert Handy has written that “[i]n many ways, the middle third of the nineteenth century was more of a ‘Protestant Age’ than was the colonial period with its established churches.”9

One of the interesting ironies of the period is that this informal Protestant establishment was emerging at the same time the last three New England states were undergoing institutional disestablishment (Massachusetts being the last in 1833). Fueled by the religious revivals and the rise of religious reform societies that pushed a variety of moral causes ranging from Biblical literacy, Sabbath attendance, and temperance to the abolition of slavery and women’s suffrage, an evangelical ethos enveloped the nation, one that through persuasion was more effective in regulating social customs and behavior than New Haven’s infamous “Blue laws” had ever been. For evangelicals, institutional disestablishment did not mean that religion could no longer mold the culture or influence government actions that promoted morality and virtue. Lyman Beecher, leader of the evangelical reform movement, maintained that voluntary societies would supplement government efforts to combat vice and disorder by serving as “a sort of moral militia, prepared to act upon every emergency, and repel every encroachment upon the liberties and morals of the State…. [I]n a free government, moral suasion and coercion must be united.” Following on the lead of Beecher and others, evangelicals formed a number of voluntary societies during the antebellum period, including the American Bible Society (1816), the American Sunday School Union (1824), the American Tract Society (1825), the American Temperance Society (1826), and the General Union for the Promotion of the Christian Sabbath (1828), all with the goal of perfecting and preserving the nation’s status as a Christian nation while encouraging increased enforcement of laws promoting morality and public virtue.10

Evangelicals did not believe their effort to mold America into a Christian nation were at tension with disestablishment; on the contrary, “it was widely asserted that now that civilization in America had been freed of the corruptions of established ecclesiasticism, it would become more Christian than it had ever been. Churches had been disestablished and separated from the state, but the idea of a Christian society had not disappeared.”11 The “voluntary” system of church membership under disestablishment would reinforce religious freedom while it allowed religion to flourish. Evangelical enthusiasm would wax and wane throughout the century depending on location and event, but at no time did evangelical Protestantism lose its grip on culture and its civil establishments.

Protestantism’s efforts to make America into a Christian nation reflected not only an invigorated theological vision, but also a reaction to the disaggregated forces (p. 78) of change during the century. The same “antebellum spiritual hothouse” that gave rise to evangelicalism, to use historian Jon Butler’s rich phrase, incubated competing religious movements in Shakerism, Universalism, Mormonism, Adventism, Transcendentalism, and utopian societies.12 Also, beginning in the 1830s and accelerating in subsequent decades, America experienced an onslaught of Catholic immigration, initially from Ireland and later from Germany and Italy. Finally, later in the century, Protestant America would face challenges from Darwinism, religious skepticism, and Biblical criticism, not to mention the disquieting social pressures produced by urbanization, industrialization, and labor unionization. Protestant leaders reacted to these challenges to their hegemony by doubling their efforts at moral suasion and seeking enforcement of Sabbath and blasphemy laws while fiercely holding onto the Protestant character of the public schools. One group even sought to have Congress adopt an acknowledgment of God and Jesus in the Constitution, as if that would stall the demographic forces. That the Protestant majority felt continually under siege indicates that church–state relations were dynamic throughout the century.13

An early episode that spurred debate over the proper relation between church and state involved a controversy over mail delivery on Sundays. Even though the majority of states had laws limiting “worldly behavior” on Sundays as a way of promoting religious piety and quiet respect for churchgoers, Sabbath laws were poorly enforced. Evangelical leaders such as Lyman Beecher viewed the “profanation of the sabbath” as evidence of the nation’s spiritual waywardness and an impediment to achieving a culture in which Christianity could thrive. In 1810, however, U.S. Postmaster General Gideon Granger secured passage of a law requiring all postmasters to open their offices to the public on every day that mail arrived, Sundays included. Beecher and other evangelical leaders mounted a petition drive to Congress to have the law repealed, but it lost steam during the ensuing war with Great Britain. The matter continued to fester, and in 1828 Beecher organized the General Union for the Promotion of the Christian Sabbath (GUPCS). The GUPCS undertook a massive petition drive—likely the first example of a religious interest group organizing a direct mail, grassroots campaign. The drive took on greater consequence than simply the repeal of the law; it became a referendum on the religious character of the nation. As one petition asked rhetorically, if America was truly “a Christian nation, then our Government is a Christian Government, a Government formed and established by Christians, and therefore bound by the word of God, [and] not at liberty to contravene his laws.”14

A sizeable number of Americans objected to the repeal drive and what they viewed as an attempt by evangelicals to enforce a religious custom through the law. One group of memorialists from New York responded that the repeal would favor a “religious duty,” and was “contrary to the letter and spirit of the constitution, which guarantees freedom of opinions to every citizen.” Viewing the repeal in constitutional terms, these memorialists argued it was “fraught with the most pernicious and dangerous consequences to our civil and religious liberties, and calculated to prepare the way for the final establishment of a national religion.”15 (p. 79) Their arguments caught the attention of Congress, which in two reports rejected efforts to change the law to prohibit Sunday mail delivery. Both reports were written by Richard M. Johnson, a future vice president under Martin Van Buren. “Our Constitution recognizes in every person the right to choose his own religion, and to enjoy it freely without molestation,” Johnson wrote. Thus, as he reiterated in the second report, “The framers of the constitution recognized the eternal principle that man’s relation with his God is above human legislation, and his rights of conscience inalienable.”16 Because “a variety of sentiment exists … on the subject of the Sabbath day,” Johnson insisted, Congress could not “determine for any whether they shall esteem one day above another.”17 Johnson argued the repeal of the delivery law would be the first step toward a religious establishment.

If a solemn act of legislation shall, in one point, define the law of God, or point out to the citizen one religious duty, it may, with equal propriety, proceed to define every part of divine revelation, and enforce every religious obligation, even to the forms and ceremonies of worship, the endowment of the church, and the support of the clergy.18

Sunday mail delivery would remain a thorn in the side of evangelicals throughout the century; not until 1912 did Congress finally repeal the law at the request of a coalition of ministers and postal clerks.19 The Sunday mail controversy demonstrates the competing views about the relationship between religion and government in antebellum society. The evangelical vision of a Christian nation, practically and symbolically, was on the rise, but it still encountered resistance by followers of the Jeffersonian model.

An interesting paradox is that as the culture was becoming more religious, a transformation was taking place in one of its central institutions—the law—one that was moving in the opposite direction. In the early part of the century, it was not uncommon for judges and lawyers to express the view that the law was based on religious principles. This belief was based in part on vague notions of higher law foundations, but also on more particular understandings that Christianity formed part of the common law. British jurists such as William Blackstone had written how the common law—which had been transferred to the colonies and adopted by the states—integrated Christian doctrine and principles, meaning that civil judges were obligated to interpret the law consistent with those doctrines and principles. Many early American jurists viewed the Christian underpinnings of the law only in abstract terms, but others understood it as an obligation to enforce Christian customs and behavioral norms through the civil law. Although the number of cases was never that great, during the first third of the century it was not uncommon for judges to uphold convictions for blasphemy or Sabbath violations or to issue rulings in domestic and probate cases by citing religious rationales.20 In upholding a blasphemy conviction of a defendant for stating “the Holy Scriptures were a mere fable,” the Pennsylvania Supreme Court in 1824 asserted that the charge was supported entirely by the maxim that Christianity was “part of the common law of Pennsylvania.”

(p. 80) It is impossible to administer the laws, without taking the religion which the defendant in error has scoffed at, that scripture which he has reviled, as their basis; to lay aside these is, at least, to weaken the confidence in human veracity, so essential to the purposes of society.21

By mid-century a noticeable shift was underway. Prosecutions for blasphemy disappeared, replaced (if at all) by charges of public swearing or disorderly conduct. Requirements that the taking of a legal oath be made on an affirmation of a belief in God and in the certainty of eternal damnation for lying—a prerequisite to serve as a witness or juror, execute a will, or sign most legal documents—liberalized considerably as the century progressed. By century’s end, most states required that an affirmant only profess some belief in a higher sanction for testifying falsely, thus opening the privilege to Jews, Universalists, Buddhists, and members of other nonconforming faiths; and the enforcement of Sunday laws was no longer justified as preventing “the desecration of the Sabbath … which is set apart by Divine appointment.” Rather, Sunday laws became public health–welfare regulations, supported by secular rationales. Overall, the function of the law during the nineteenth century shifted from reinforcing static “higher” norms to being an amoral instrument supporting economic development.22

This “secularization” of the law and adjustment of jurist attitudes continued throughout the remainder of the century. Some scholars and judges resisted the trend, or at least sought to retain some reference to the law’s normative basis. Influential treatise writer Thomas M. Cooley wrote that Christianity remained part of the law in the sense its ethical precepts influenced legal areas such as domestic relations and charity law. “But,” he noted, “the law does not attempt to enforce the precepts of Christianity on the ground of their sacred character or divine origin.”23 Resistance to the overall secularizing trend would find its way into an 1892 opinion by the U.S. Supreme Court that declared “this is a Christian nation.”24 However, generally, the growing professionalization of the law and the pressure to make it adaptable to economic change meant that it had no role in enforcing religious precepts. Although Protestantism still retained great influence on the culture in the final decades of the century, developments in the law would help lead the nation into a more secular twentieth century.

Nineteenth-Century Controversies

Three controversies in particular defined church–state relations during the nineteenth century: the controversy over Protestant religious exercises in the nation’s public schools and the ancillary issue of public funding of Catholic parochial schools (otherwise known as the “School Question”); the government-sponsored Christianization of American Indians; and the government’s attempt to eradicate Mormon polygamy. The remainder of this chapter is devoted to these issues.

(p. 81) The “School Question”

American public schooling arose in the early years of the century. Before that time, most education of children took place through tutors, in denominational schools or those run by towns in conjunction with a local church, with the minister serving as the teacher. Education, by and large, focused on reading religious texts and involved the inculcation of religious doctrine. Several of the nation’s founders, including Benjamin Franklin, Thomas Jefferson, Benjamin Rush, and Noah Webster, agitated for universal public schooling, believing that the success of the new nation depended on the teaching of republican values to future generations of children. These reformers also criticized the reliance on religious doctrine common in early schooling. In his 1779 proposal for public elementary schools in Virginia, Thomas Jefferson wrote that “instead of putting the Bible and Testament in the hands of children at an age when their judgments are not sufficiently matured for religious inquiries, their minds may here be stored with the most useful facts from Grecian, Roman, European and American History.”25 Most education reformers believed, however, that public schools should continue to teach moral precepts and religious values alongside liberal courses in mathematics, history, and science.

The early public or “common” schools that developed in cities along the eastern seaboard quickly instituted what became known as a “nonsectarian” curriculum in which universal religious doctrines and values were taught along with daily exercises in prayer, Bible reading, and hymn singing. Leaders of the early common school movements believed they could distill and teach religious values that all Protestants shared without reverting to denominationalism. The goal of nonsectarianism was not to indoctrinate, but to ensure that children were instructed in morals and religious values that served as the foundation of republican society. Although educator Horace Mann would later deemphasize the teaching of common religious doctrine—allowing the Bible “to speak for itself”—he never questioned the responsibility of public schooling to instill religious devotion among school children.26

Despite their characterization as “nonsectarian,” many early programs were highly Calvinist or Protestant in character. Initially, and extended periods in some religiously homogeneous communities, such nonsectarian exercises elicited little opposition. With the influx of Catholic immigration in the 1830s and 1840s, however, Catholic leaders and parents began to object to the Protestant-oriented exercises, particularly when they disparaged Catholic doctrine. Catholic complaints intensified as their numbers grew, and Protestants frequently dug in. Anti-Catholic nativist groups picked up the mantel, particularly when Catholic leaders began requesting a share of the public school funds for their developing parochial schools. Tensions mounted, spurring religious hatred and violence. A Catholic convent was burned in Massachusetts and in 1844 Catholics and Protestants engaged in armed exchanges on the streets of Philadelphia, resulting in many deaths. Other communities sought common ground. School officials in Cincinnati, Ohio, with its large (p. 82) German Catholic community, allowed separate instruction of Catholic children through the reading of the Douay Bible, whereas St. Louis school officials prohibited all religious exercises from the beginning. However, in most places Catholic children and parents were on the losing end of the conflict; objecting children were punished or expelled, with sanctions being upheld by courts. As the century progressed, however, devotional use of the Bible and other religious exercises became less common as school districts grew more aware of the conscientious scruples of non-Protestant children.27

Throughout the nineteenth century, Catholics were rarely more successful in obtaining a pro rata share of the public school funds for the education of children in parochial schools. Even before the rise in immigration, states began enacting laws and constitutional provisions that prohibited the transfer of public monies to religious institutions and schools. Although the primary motivation for these provisions was to ensure accountability and the financial stability of the nascent public schools, advocates of these early “no-aid” laws also saw their basis as originating in constitutional principles. As the New York City Council wrote in 1831 in rejecting an application by a Baptist school for a share of the common school fund, “to raise a fund by taxation, for the support of a particular sect, or every sect of Christians, … would unhesitatingly be declared an infringement of the Constitution, and a violation of our chartered rights.”28 To be sure, the passage of several later laws may also have been motivated by anti-Catholic animus, particularly the 1854 enactment of a constitutional provision in Massachusetts by a Know-Nothing controlled legislature.29 However, the no-funding principle, which traces its roots back to James Madison’s “three pence” argument, pre-dated and stood independent of how some used it in mid-century to ensure Protestant dominance over the public schools and American culture.30

The controversy over parochial school funding and the religious character of American public schooling came to a climax in the years after the Civil War. In 1869, the Cincinnati school board voted to abolish prayer and Bible reading exercises in its schools as a result of renewed complaints by Catholic, Jewish, and freethinking parents. Bible reading supporters sued the school board to have the practices reinstated. The ensuing controversy became known as the “Cincinnati Bible War,” and it evolved into a national test case on the future of Bible reading. A state superior court overturned the school district’s action in a 2-1 decision, with Judge Bellamy Storer writing that “[w]ithout the teachings of the Holy Scripture there is, we believe, no unvarying standard of moral duty [and] no code of ethics which inculcates willing obedience to law.”31 Judge Alphonso Taft, father of the future president and chief justice, wrote a memorable dissent that denied that Protestantism or any religion was entitled to preference under the law. Bible reading, even without note or comment, “was and is sectarian,” Taft wrote. “It is Protestant worship. And its use is a symbol of Protestant supremacy in the schools, and as such offensive to Catholics and Jews.”

To hold … that Protestant Christians are entitled to any control in the schools, to which other sects are not equally entitled, or that they are entitled to have their (p. 83) mode of worship and their Bible used in the common schools … is to hold to a union of Church and State, however we may repudiate and reproach the name.32

The Cincinnati school board appealed the ruling to the Ohio Supreme Court which, 3 years later, unanimously reversed the superior court decision, with the justices adopting Judge Taft’s reasoning.33

The Cincinnati Bible case reignited the controversy over religious exercises in public schools and the public funding of religious schools. Several city school districts followed Cincinnati’s lead by eliminating or further restricting prayer and Bible reading, raising the ire of Protestant leaders who viewed the actions as an attack on the Bible and a culture that equated Protestantism with republican values. During the same period, the early 1870s, reports emerged that Catholic schools and orphanages were secretly receiving public funding through sympathetic local politicians and ward bosses who desired the support of Catholic and immigrant voters. The issues of religious exercises and funding were closely intertwined; for many Protestant leaders, Catholic objections to Bible reading were chiefly ploys to obtain wholesale funding of their parochial schools. Opposition to “Catholic designs” grew, coinciding with renewed concern about foreign immigration, which was on the upsurge.34

In September 1875, President Ulysses S. Grant recommended that Congress adopt an amendment to the U.S. Constitution to resolve the School Question by prohibiting states or local governments from appropriating funds for religious schools. (At this time, the First Amendment to the federal Constitution restricted the actions of the national government only, not those of the states.) Representative James G. Blaine, a Republican Congressman and then Senator from Maine, picked up Grant’s proposal, introducing what became known as the Blaine Amendment of 1876. The proposed amendment, which went through several permutations, would have applied the First Amendment’s religion clauses to the actions of state and local governments while expressly forbidding the appropriation of public funds for religious schools. Support for the amendment broke down largely along party lines. Republicans supported the amendment in part to divert attention away from the failures of Reconstruction and the corruptions of the Grant Administration. The amendment also allowed Republicans to appear in favor of common schools, which helped resolidify their relationship with their Protestant base. Democrats generally opposed the amendment out of concern that it might mandate universal public education in the South and offend their Catholic-immigrant base. Debate over the proposed amendment, both in Congress and the public arena, was acrimonious, with many believing that the future of universal public education was at stake. At times, the debate devolved into anti-Catholicism; it is likely that both Blaine and Grant supported the amendment in part as a way of appealing to anti-Catholic voters in their respective efforts to secure the Republican nomination for president. The proposed amendment passed the House of Representatives but failed by two votes in the Senate to garner the necessary two thirds needed for passage and likely ratification by the states.35

(p. 84) Even though the Blaine Amendment failed, the trends it highlighted were irreversible. In the 35 years after the failed Blaine Amendment, 21 states adopted express provisions in their respective constitutions prohibiting the appropriation of public funds to religious schools and institutions. Likely the Blaine Amendment served as a model or inspiration for several of these state provisions (although similar provisions already existed in 17 other state constitutions). Also, the trend toward de-emphasizing a devotional aspect of Bible reading continued in the latter quarter of the century, with many school districts abolishing all use of the Bible. U.S. Commissioner of Education William Torrey Harris reported in 1895 that:

[outside] New England there is no considerable area where [the Bible’s] use can be said to be uniform. This condition has come about as much by indifference as by opposition…. There has been a change in public sentiment gradually growing toward complete secularization of the Government and its institutions…. Secularization of the schools is accepted or urged by many devout people who deem that safer than to trust others with the interpretation of the laws of conscience.36

In fact, the dismal state of Bible reading and devotional training in the latter decades of the century would lead to an upsurge in state legislation in the early twentieth century authorizing the reading of the Bible without note or comment and to the creation of “release-time” programs for devotional instruction led by nonschool persons.37 Clearly, the nineteenth-century School Question did not resolve the interrelated controversies of religious education in public schools and public funding of religious schools, issues that remain unresolved to this day to a certain extent. However, the School Question reveals the dynamic nature of these issues throughout the century and the way that educators, politicians, and judges approached these issues laid the foundation for future resolution by the U.S. Supreme Court.

The Christianization of American Indians

By the time America entered the nineteenth century, attitudes toward American Indians and their religious beliefs already had a long history. For most European Americans, Native American customs and religious practices were heathen and barbaric, worthy of little regard. All of the British colonies instituted policies encouraging settlers to Christianize the local Native peoples. Most colonists had other priorities, however, so missionary efforts were sporadic and varied widely depending on time, location, funding, and denominational commitment. Of all religious groups, Moravians were the most committed and effective in evangelizing Indians.38

(p. 85) Early on, the new national government undertook policies to convert Indians to Christianity. The Second Continental Congress directed that Indian agents should “instruct [Natives] in the Christian religion” and, in 1785, provided a land grant to Moravians for the purpose of “civilizing the Indians and promoting Christianity.” During George Washington’s first administration, Secretary of War Henry Knox proposed appointing missionaries “of excellent moral character” to instruct Indians in matters of religion, farming, and husbandry. And in 1796, Congress enacted a law providing a land grant to the Moravians for the purpose of “propagating the Gospel among the Heathen.” As can be seen, the federal government, small in size and unwilling to commit substantial resources, relied primarily on awarding grants to existing religious missions among the various tribes. The primary goal of the government was to civilize Native peoples rather than to proselytize them; however, throughout much of the nineteenth century the idea of civilizing presumed that Indians would first abandon their primitive and heathen beliefs and adopt Christian values.39 No one would have disputed the assumptions underlying President John Quincy Adams’ 1828 statement that it “was our policy and our duty to use our influence in converting [Indians] to Christianity and in bringing [them] within the pale of civilization.”40 Civilizing and Christianizing went hand in hand.

In 1819, Congress created the “Civilization Fund” to support the efforts of benevolent associations in the education of Indians. In addition to Moravians and Catholics, Baptist, Methodist, and Presbyterian missionaries shortly established mission schools among various tribes and received money from the Civilization Fund. One such group was American Board of Commissions of Foreign Missions, established in 1810 by Presbyterian and Congregationalist leaders, which by mid-century expended half of its funds, procured in part from Congress, on evangelism and education of American Indians. Conversion to Christianity was the primary goal of these agencies, goals that were inseparable from education and the instruction in those habits and skills “so essential to civilized life.” Although the Civilization Fund and other Congressional appropriations uniformly made no mention of converting Indians to Christianity, language about instilling industry, morality, and civilization left no doubt that conversion would be a primary tool in achieving those goals. By 1826, 36 religious mission schools were supported by the Fund, with a total appropriation of $13,550. The Fund continued until 1873 and served as a financial link between the government and its religious allies.41

By mid-century, with the advent of reservations with government agents, federal Indian policy became increasingly inept and corrupt. Religious missions also suffered from government neglect and profiteering by federal agents. Following the Civil War, attention turned to resolving the “Indian Problem”—not only addressing the government corruption and Indian poverty and degradation, but also assimilating Indians into Western society. In 1867 Congress authorized a commission to investigate the condition of the Indian tribes and the policies of the military, which exercised oversight of the reservations. At the same time, delegations of Quakers and Episcopalians approached the newly elected President Grant to use (p. 86) religious mission boards and organizations in the reform efforts. The “Peace Commission’s” 1868 report advocated a new policy of civilization (i.e., assimilation)—one that would teach Indians “the principles of Christianity” and “elevate them to the rights of citizenship.” Based on the report, President Grant instituted the “Peace Policy” in 1869 to reform the system. Grant dismissed all military and civilian superintendents and agents, replacing them with missionaries and religious officials who were authorized to formulate and administer federal Indian policy. In a later address to Congress, Grant stated that he “determined to give all the agencies to such religious denominations as had heretofore established missionaries among the Indians, and perhaps to some other denominations who would undertake the work on the same terms—i.e., as a missionary work.” The societies were allowed “to name their own agents, subject to the approval of the Executive,” and were expected “to watch over them and aid them as missionaries, to Christianize and civilize the Indian, and to train him in the arts of peace.”42

As part of the Peace Policy, Congress created the Board of Indian Commissioners to oversee procurements for the Indian agencies and serve as a liaison between the tribes and the government. Again, the statute was silent on this matter, but the understanding was that the President would appoint representatives from various religious denominations to serve as commissioners. The Board quickly became known as the “Church Board.” It coordinated activities with missionary societies, gathered information and issued reports on the conditions of Indians and their progress toward becoming “civilized.” Its primary function, however, was to allot the Indian agencies among the various denominations. Initially, Catholics were not represented on the Board and received the short shrift in the denominational allotment of Indian agencies. In time, Catholic missions would receive an increasing share of the allotments and supporting public funds.43

By the late 1880s, Catholic mission schools were receiving approximately two thirds of the federal funds under the Peace Policy. This led Protestant leaders to criticize the Catholic missions’ share of the funding and the perceived sectarian character of their services. Protestant criticism caught the attention of the Commissioner of Indian Affairs Thomas J. Morgan, who in 1889 proposed creating a system of government-run schools to supplement and eventually replace the mission schools, the ostensible purpose being to provide education to the 50% of Native children who still received no formal schooling. Morgan proposed that the government Indian schools should model themselves after the “common-school system,” in that they “should be non-partisan [and] nonsectarian.” By 1892, most Protestant groups, acknowledging the trend, withdrew from participating in the Peace Policy, ending the funding of most Protestant missions. Catholic missions hung on, but in 1896 and 1897, Congress attached provisions to the appropriations bills prohibiting future contracts with religious mission schools. The funding of religious schools for Indians ceased in 1899.44

A footnote to the funding question arose in the 1908 Supreme Court case of Quick Bear v. Leupp. The issue was whether Indian treaty or trust funds, managed by the Bureau of Indian Affairs, could be used as an alternative to finance religious (p. 87) mission schools. The Supreme Court ruled that the contract between the B.I.A. and the Bureau of Catholic Indian Missions did not violate the Establishment Clause or the statutory appropriations ban. Payments derived from tribal funds or pursuant to treaty obligations were distinct from Congressional appropriations, Chief Justice Melville Fuller held. On the Establishment Clause claim, Fuller wrote that the Court could not “concede the proposition that Indians cannot be allowed to use their own money to educate their children in the schools of their own choice because the government is necessarily undenominational, as it cannot make any law respecting an establishment of religion or prohibiting the free exercise thereof.”45

Catholic and Protestant missions continued after the demise of the Peace Policy, operating chiefly with private funds. The ban on government funding of religious missions did not mean that the assumptions about the importance of Christianity for civilizing had changed, however. Federal superintendents and agents still cooperated with missionaries and supported their goals of conversion. Within the government-run Indian schools, Native children were instructed in Christian principles. The government’s own rules for Indian schools required Native children to attend church or Sunday schools and receive other nonsectarian instruction.46

Outside of the school context, the federal government instituted policies to eradicate Indian ceremonies that officials acknowledged had religious significance. Ceremonies such as the Ghost and Sun dances were viewed as impediments to civilizing and inconsistent with Christian values. In 1883, the Commissioner of Indian Affairs issued rules or “Courts of Indian Offenses” directed at prohibiting dances, mourning rituals, and other ceremonies on reservations. Punishments for participating in dances and ceremonies included fines, imprisonment at hard labor, and loss of rations.47 The government efforts to suppress Indian religious practices came to a terrible climax in the 1890 Wounded Knee Massacre on the Pine Ridge Reservation in South Dakota, where more than 200 Indians, including women and children, were killed by Army troops who were ordered to quell a disturbance associated with the Lakota Ghost dance. Government suppression of Indian religious practices would continue until the late 1920s, even after Congress’ award of citizenship to American Indians in 1923.48

By any account, the actions of the government toward Indian religion and culture during the nineteenth century constituted the most profound violation of church–state principles in the nation’s history. Throughout the century, the government sought to eradicate the religious practices and traditions of a people while it actively supported—through funding and coercion—the conversion of those people to Christianity. These policies and actions reached their apex through the adoption of the Peace Policy and the creation of the religiously controlled Board of Indian Commissioners. The Peace Policy professed unabashedly religious objectives, expended large sums of public dollars to accomplish those objectives, instituted religious tests for office-holders and grant recipients, and delegated significant governmental authority to cooperating religious bodies. While it functioned, the Peace Policy represented the most thorough and indisputable religious establishment in the history of the nation.

(p. 88) The “Mormon Problem”

The effort of the federal government to eradicate Mormon polygamy and subdue the authority of the Church of Jesus Christ of Latter-day Saints is another sad episode in nineteenth-century church–state relations. The government’s actions toward the Mormon Church between 1850 and 1895 share some parallels to those policies toward American Indians. In both instances, the government adopted official positions of hostility toward the religious beliefs and practices of identifiable groups of people. In both instances, the government sought to eradicate “barbarian” religious practices and dismantle the social structures that supported the respective faith communities. And in each instance, rights of citizenship and membership in the American political community turned on one’s willingness to renounce his religious tradition and be “Christianized.”

The federal government’s actions toward the Mormons were unique in some respects, however. Government policies supporting the conversion of American Indians arose from relatively benign motives, albeit motives based on paternalism and prejudice. The official actions against the Mormon Church reflect no such well-meaning paternalism; rather, the actions bristled with hostility toward polygamy and the church itself. Unlike Native religious customs, Mormon beliefs and practices challenged core aspects of Protestant theology and their conception of an ordered Christian society. The Mormon polygamy, patriarchy, and theocracy represented threats to American culture in ways that the Lakota Ghost dance could. Making matters more complicated, Mormons were of European stock and professed to be Christian (in fact, Mormons shared elements with Protestant “restorationist” groups such as the Disciples of Christ). Thus Mormonism possessed the same presumption of legitimacy and entitlement to constitutional protections of religious liberty as other antebellum religious movements. Unlike the policies toward American Indians, officials and legislators were consciously aware of the constitutional implications of their actions toward the Mormon Church.49

Mormons had experienced run-ins with government authority long before they formally announced their revealed practice of polygamy in 1852. Mormon notions of cosmology, ongoing revelation, sacred texts, and their hierarchical communalism distinguished their religion from most religious movements that spread throughout the Midwest. Mormon separatist practices engendered animosity from non-Mormon “gentiles” as the church moved from Ohio to Missouri, and then to Illinois. Armed conflict erupted in Missouri with both Mormons and Gentiles being killed, leading the Missouri governor to issue an extermination order authorizing the killing of Mormons, likely (and thankfully) the only example of an American government ordering a religious genocide. The church squandered whatever sympathy it acquired after moving to Nauvoo, Illinois, where its prophet, Joseph Smith, assumed the mantel of spiritual, political, and military leader, raising accusations of theocracy. At Nauvoo the first rumors of polygamy among Smith and Mormon (p. 89) leaders would also arise. The Nauvoo episode would end tragically with the murder of Smith and his brother and the expulsion of the Mormons from the Midwest. However, the theocratic specter of Nauvoo and later Deseret (Utah) would haunt Mormons for another half-century, serving to complicate the church–state issue and neutralize accusations of repressive actions by the federal government.50

The 1852 church acknowledgment of polygamy confirmed what government reports and rumor had been asserting for several years. Still, the public reaction to the announcement was swift and hostile. For Mormons, plural marriage was a central religious tenet, a practice that helped a man achieve a higher level of spiritual fulfillment in heaven. From the very beginning, Mormons defended the practice on freedom of religion grounds found in the Constitution. For non-Mormons, however, polygamy was a barbaric and dehumanizing practice, one that challenged the fundamental structure of the family that had underlain Christian civilization for 1800 years. As the U.S. Supreme Court would remark in one of its many cases upholding the government’s prosecution of polygamists, monogamous marriage was “the sure foundation of all that is stable and noble in our civilization; [it was] the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement.”51 Additionally, critics viewed polygamy as promoting the sexual gratification of men while it debased womanhood, resulting in their effective enslavement. In the 1856 party platform of the newly formed Republican Party, Mormon polygamy was condemned along with slavery as being one of the “twin relics of barbarism.”52

Distance from Washington to the Great Basin and opposition of Southern legislators to increasing federal authority over the territories meant that the national government did little to address the Mormon Problem until the Civil War. (In 1857 President James Buchanan authorized an unsuccessful military expedition to Utah, purportedly to quell an armed uprising against the federal government, though the action was urged on by public disdain for polygamy.) Finally, in 1862 with Southern Democrats absent, Congress enacted the first legislation prohibiting polygamy, the Morrill Act. The Morrill Act imposed a punishment of up to 5 years in prison for any act of polygamy, religiously based or not. However, additional sections of the law revealed where the true problem lay. The Act also invalidated the territorial incorporation of the Mormon Church and any territorial laws that established or supported polygamy while it prohibited the Mormon Church from acquiring or holding real property in excess of $50,000.53 Although the Act disclaimed any animosity toward the Mormon Church, the legislative debate revealed disdain and revulsion for the church and polygamy. Of particular concern was the “theocratic” authority the church exercised over every aspect of life in Utah. As the House committee report explained:

[t]he very attempt to incorporate the Church of Jesus Christ of Latter Day Saints, is an effort to accomplish in Utah, what has nowhere else has been effected by our authority upon this continent—the establishment of one form of religious worship to the exclusion of all others.54

(p. 90) The Morrill Act was rarely enforced because of the difficulty of prosecutors obtaining indictments or convictions from Mormon-dominated grand and petit juries. Finally, in 1874 church leaders put forward George Reynolds, the private secretary for Brigham Young, as a test challenge to the constitutionality of the Act. Reynolds was convicted after a second trial and appealed to the U.S. Supreme Court claiming that the Act’s polygamy provision was an unconstitutional violation of freedom of religion. The Court rejected Reynold’s free exercise claim. Chief Justice Morrison R. Waite wrote that although ‘[r]eligious freedom is guaranteed everywhere throughout the United States,” that right was not unlimited.

Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order…. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.55

Despite having the Morrill Act as a tool to prosecute polygamy, other impediments stood in the way of effective enforcement. Mormon-controlled juries still refused to indict or convict, and wives regularly refused to testify against their husbands (prosecutors also encountered problems with using second wives to prove a first marriage—or vice versa—because the testifying wife was entitled to spousal privilege against testifying until the subsequent (or earlier) marriage could be proved independently. Also, Utah had no marriage law or registry, so the only proof of plural marriages existed in secret church documents or from testimony of Mormons in attendance at the private ceremonies.

Congress responded to this public and prosecutorial frustration by passing two draconian laws, the Edmunds Act (1882) and the Edmunds-Tucker Act (1887). The Edmunds Act prohibited not only polygamy, but also unlawful cohabitation between a man and a woman that could not be proved by marriage. An additional section clarified that prosecutors could exclude potential jurors from jury service for not merely practicing polygamy (or cohabiting) but also on grounds they “believe[d] it right for a man to have more than one living and undivorced wife at the same time, or to live in the practice of cohabiting with more than one woman.” This latter provision disqualified not just practicing polygamists but also all faithful members of the Mormon Church based on their religious beliefs. Another section denied the right to vote or hold public office—elected or appointed—to any “polygamist, bigamist, or any person cohabiting with more than one woman,” and to any woman in a polygamist marriage or cohabiting relationship. Finally, to ensure that Mormon political power was broken along with the power to resist federal enforcement, the Edmunds Act declared all elected territorial offices vacant and set up an electoral commission to oversee voter registration and election.56

The breadth of the Act—effectively disenfranchising many Mormons and disqualifying them from office or serving on juries—and the anti-Mormon rhetoric that accompanied the legislative debate, left no doubt that Congress intended not simply to eradicate polygamy, but also to subdue the Mormon Church. A handful (p. 91) of legislators voiced concerns that the Act persecuted Mormons for their beliefs while its disqualifying provisions established religious tests for office-holding and civic franchise. However, resolving the Mormon Problem had become a national obsession in the 1880s, and the Edmunds Act introduced a 12-year period of aggressive prosecutions in Utah referred to as “the Raid.” Mormon officials and other polygamists fled into hiding, whereas more than 1,000 served time on chain gangs. Even though only approximately 2,500 Mormon men ever engaged in polygamy, all of Utah became an occupied territory where most residents possessed few rights.

The 1887 Edmunds-Tucker Act increased the penalties of several earlier offenses and abolished the spousal privilege against testifying. However, most significantly, the Act dissolved the incorporation of the Mormon Church and ordered the seizure and disposal of its assets. Supporters of the law insisted this latter action was necessitated by the ongoing intransigence of the Mormon Church and, as one representative stated, “to cut up by the roots this church establishment.”57 Any hope that the Supreme Court would intervene to limit the enforcement of the two Acts was dashed by a pair of important decisions in 1890. In the first case, Davis v. Beason, the Court upheld an Idaho territorial law that denied the vote not only to practicing polygamists but also to anyone who belonged to an organization that “teaches, advises, counsels, or encourages its members” to practice polygamy “or plural or celestial marriage as a doctrinal rite.” Even though the law disqualified many voters only for their religious beliefs, not their actions, Justice Stephen Field reaffirmed the distinction from Reynolds between protected religious belief and unprotected conduct motivated by religious belief: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” The law merely regulated Davis’s ability to vote. “To call [his] advocacy a tenet of religion is to offend the common sense of mankind,” Field wrote.58

In the second case, Late Corporation of Church of Jesus Christ of Latter-day Saints v. United States, the Court upheld the seizure and liquidation of church property on the ground its assets had been used to evangelize and advocate the tenet of polygamy. Despite the best efforts of federal officials “to suppress this barbarous practice,” wrote Justice Joseph Bradley, the Mormon Church “perseveres, in defiance of law, in preaching, upholding, promoting and defending … this nefarious doctrine,” thus necessitating Congress’ action.59 With these two holdings and the ongoing prosecutions in Utah, the Mormon leadership quickly capitulated, with President Wilford Woodruff declaring in 1890 that nothing in the church teachings should be construed to “encourage polygamy.” With the issuance of that manifesto, Congress finally authorized the admission of Utah as a state in 1896, reinstating the civil and political rights to Mormons. As with the actions against Native Americans, the federal government had undertaken actions that can only be viewed as transgressing rights of free exercise and nonestablishment. In the case of the Mormon Church, those actions were apparently justified to prevent the existence of Mormon theocracy considered incompatible with American values.

(p. 92) Conclusion

Church–state relations during the nineteenth century present an interesting paradox. On one hand, religious affiliation was unparalleled, and Protestantism exercised a dominating influence on the culture and its institutions. On the other hand, growing religious diversity and social, economic, and demographic forces placed tremendous secularizing pressures on American institutions. Understandings of religious liberty and separation of church and state expanded during the century, although they were tested by the nation’s actions toward Native Americans and Mormons.

America entered the twentieth century still predominantly a Protestant country. However, it was a vastly different nation from 100 years earlier, one that had been changed forever by religious voluntaryism, pluralism, immigration, industrialization, and a growing secularism. The experiences and lessons of the nineteenth century would set the stage for the constitutional development during the next century.

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                                                                                                                            Notes:

                                                                                                                            (1.) See for example, Robert S. Alley, ed., The Constitution and Religion (Amherst, NY: Prometheus Books, 1999).

                                                                                                                            (2.) See generally, Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2002); John Witte, Jr., Religion and the American Constitutional Experiment, 2d ed. (Boulder, CO: Westview Press, 2005).

                                                                                                                            (3.) Edwin Scott Gaustad and Philip L. Barlow, New Historical Atlas of Religion in America (New York: Oxford University Press 2001), 157, 209–210.

                                                                                                                            (4.) Isaac Kramnick and R. Laurence Moore, The Godless Constitution: The Case Against Religious Correctness (New York: W.W. Norton & Co., 1996), 17, 88–109; Edwin S. Gaustad, Faith of the Founders: Religion and the New Nation, 17761826, 2d ed. (Waco, TX: Baylor University Press, 2004), 36–109.

                                                                                                                            (5.) Thomas J. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment (New York: Oxford University Press, 1986), 134–222.

                                                                                                                            (6.) Reprinted in John F. Wilson and Donald L. Drakeman, eds., Church and State in American History, 3rd ed. (Boulder, CO: Westview Press, 2003), 74.

                                                                                                                            (7.) Robert Baird, Religion in the United States of America (Glasgow: Blackie & Son, 1844), 602–603, 606.

                                                                                                                            (8.) Edwin Scott Gaustad, Historical Atlas of American Religion, rev. ed. (New York: Harper & Row, Pub., 1976), 37–57; Jon Butler, Awash in a Sea of Faith: Christianizing the American People (Cambridge: Harvard University Press, 1990), 283; Roger Finke and Rodney Stark, The Churching of America 17761990 (New Brunswick, NJ: Rutgers University Press, 1992), 15–16.

                                                                                                                            (9.) Robert T. Handy, “The Protestant Quest for a Christian America, 1830–1930,” 22 Church History (1953), 8–20, 12.

                                                                                                                            (10.) Lyman Beecher, “A Reformation of Morals Practicable and Indispensable” (1812), in Lyman Beecher and the Reform of Society: Four Sermons, 18041828, ed. Edwin S. Gaustad (New York: Arno Press, 1972), 17–19; Robert H. Abzug, Cosmos Crumbling: American Reform and the Religious Imagination (New York: Oxford University Press, 1994), 30–56; Robert T. Handy, A Christian America: Protestant Hopes and Historical Realities, 2d ed. (New York: Oxford University Press, 1984), 37–47; Butler, Awash in a Sea of Faith, 284–287.

                                                                                                                            (11.) Handy, A Christian America, 27.

                                                                                                                            (12.) Butler, Awash in a Sea of Faith, 225.

                                                                                                                            (13.) Gary Scott Smith, The Seeds of Secularization: Calvinism, Culture, and Pluralism in America 18701915 (Grand Rapids, MI: Christian University Press, 1985), 53–73.

                                                                                                                            (14.) See Richard R. John, “Taking Sabbatarianism Seriously: The Postal System, the Sabbath, and the Transformation of American Political Culture,” Journal of the Early Republic 10 (Winter 1990): 517; William Addison Blakely, ed., American State Papers Bearing on Sunday Legislation (Washington, DC: The Religious Liberty Association, 1911), 232–233.

                                                                                                                            (15.) “Preamble and Resolutions, Adopted at a Meeting of the Citizens of New York, Against the Passage of Any Law Prohibiting the Transportation and Opening of the Mail on the Sabbath,” February 9, 1829, 20th Cong., 2d sess., Senate Document 64.

                                                                                                                            (16.) See “Senate Report on Sunday Mails,” Committee on the Post Office and Post Roads, January 19, 1829, 20th Cong., 2nd sess., and “House Report on Sunday Mails,” Committee on the Post Office and Post Roads, March 4 and 5, 1830, 21st Cong., 1st sess., in Blakely, American State Papers, 233–270.

                                                                                                                            (17.) Senate Report, 234–235.

                                                                                                                            (18.) House Report, 255.

                                                                                                                            (19.) John, “Taking Sabbatarianism Seriously,” 563.

                                                                                                                            (20.) See Steven K. Green, The Second Disestablishment: Church and State in the Nineteenth Century (New York: Oxford University Press, 2010).

                                                                                                                            (21.) Updegraph v. Commonwealth, 11 Serg. & Rawl. 394, 407 (Pa. 1824).

                                                                                                                            (22.) State v. Fearson, 2 Md. 310 (1852), 313; Morton J. Horwitz, The Transformation of American Law 17801860 (Cambridge, MA: Harvard University Press, 1977), 6–30.

                                                                                                                            (23.) Thomas M. Cooley, A Treatise on the Constitutional Limitations, 7th ed. (Boston: Little, Brown and Co., 1903), 670.

                                                                                                                            (24.) Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), 471.

                                                                                                                            (25.) Jefferson, “A Bill for the More General Diffusion of Knowledge,” in The Essence of Jefferson, ed. Martin A. Larson (Washington, DC: Joseph J. Binns, Pub., 1977), 150.

                                                                                                                            (26.) See generally, Noah Feldman, “Non-Sectarianism Reconsidered,” Journal of Law and Politics 18 (2002): 65.

                                                                                                                            (27.) See Donahoe v. Richards, 38 Me. 379 (1854); Commonwealth v. Cooke, 7 Am. L. Reg. 417 (Ma. Police Ct.1859); Ray Allen Billington, The Protestant Crusade, 18001860, A Study of the Origins of American Nativism (New York: The MacMillan Co., 1938), 142–65, 220-37. See also R. Laurence Moore, “Bible Reading and Nonsectarian Schooling: The Failure of Religious Instruction in Nineteenth-Century Public Education,” Journal of American History 86 (2000): 1581–1599.

                                                                                                                            (28.) William Oland Bourne, ed., History of the Public School Society of the City of New York (New York: William Wood & Co., 1870), 139.

                                                                                                                            (29.) See John R. Mulkern, The Know-Nothing Party in Massachusetts (1990), 76, 94–103; Lloyd P. Jorgenson, The State and the Non-Public School, 1825-1925 (Columbia, MO: University of Missouri Press, 1987), 85–93.

                                                                                                                            (30.) James Madison, “Memorial and Remonstrance Against Religious Assessments, 20 June 1785,” in The Founders’ Constitution, eds. Philip B. Kurland and Ralph Lerner (Chicago: University of Chicago Press, 1987), 82.

                                                                                                                            (31.) Harold M. Helfman, “The Cincinnati ‘Bible War,’ 1869–1870,” Ohio State Archaeological and Historical Quarterly 60 (1951): 369–386; Robert G. McCloskey, ed., The Bible in the Public Schools—Arguments in the Case of John D. Minor, et al., versus The Board of Education of the City of Cincinnati, et al. (New York: Da Capo Press Reprint, 1967), 380.

                                                                                                                            (32.) McCloskey, The Bible in the Public Schools, 408, 415.

                                                                                                                            (33.) Board of Education v. Minor, 23 Ohio St. 211 (1872).

                                                                                                                            (34.) See Steven K. Green, “The Blaine Amendment Reconsidered,” Journal of Legal History 36 (1992): 38.

                                                                                                                            (36.) William T. Harris, Report of the Commissioner of Education for the Year 18941895 (Washington, DC: Government Printing Office, 1896): II, 1656. See also Moore, “Bible Reading and Nonsectarian Schooling,” 1581–1599.

                                                                                                                            (37.) See Jerome K. Jackson and Constance F. Malmberg, Religious Education and the State (Garden City, NY: Doubleday, Doran & Co., 1928), 1 (discussing a post-1900 “trend very definitely in the direction of giving Bible reading more place in the public schools.”).

                                                                                                                            (38.) Henry Warner Bowden, American Indians and Christian Missions (Chicago: University of Chicago Press, 1981), 96–163.

                                                                                                                            (39.) R. Pierce Beaver, Church, State, and the American Indians (St. Louis, MO: Concordia Pub. House, 1966), 63–65; Robert F. Berkhofer, Jr., Salvation and the Savage: An Analysis of Protestant Missions and American Indian Response, 17871862 (Lexington, KY: University of Kentucky Press, 1965), 2–4.

                                                                                                                            (40.) “Fourth Annual Message to Congress,” December 2, 1828, in James D. Richardson, A Compilation of the Messages and Papers of the Presidents, 17891897, Vol. 2 (Washington: Bureau of National Literature and Art, 1901), 415.

                                                                                                                            (41.) Bowden, American Indians and Christian Missions, 167–169; Francis Paul Prucha, American Indian Policy in the Formative Years (Cambridge, MA: Harvard University Press, 1962), 213–227; Beaver, Church, State, and the American Indian, 61–80.

                                                                                                                            (42.) “Report of the Indian Peace Commission,” January 7, 1868, “Report of the Board of Indian Commissioners,” November 23, 1869, “The President’s Second Annual Message to Congress,” December 5, 1870, reprinted in Francis Paul Prucha, ed., Documents of United States Indian Policy, 2d ed. (Lincoln: University of Nebraska Press, 1990), 106–110, 131–34, 135; Robert H. Keller, Jr., American Protestantism and United States Indian Policy, 1869–1882 (Lincoln, NE: University of Nebraska Press,1983), 17–30; Beaver, Church, State, and the American Indian, 124–130.

                                                                                                                            (43.) Francis Paul Prucha, American Indian Policy in Crisis: Christian Reformers and the Indian, 18651900 (Norman, OK: University of Oklahoma Press, 1976), 52–60; Keller, American Protestantism, 32–36; Beaver, Church, State, and the American Indian, 134–138; “Instructions to the Board of Indian Commissioners,” 1869, “Assignment of Indian Agencies to Religious Societies,” November 1, 1872, in Prucha, Documents, 128–129, 141–143.

                                                                                                                            (44.) “Supplemental Report on Indian Education,” December 1, 1889, in Prucha, Documents, 178–180; Prucha, American Indian Policy, 318–319; Beaver, Church, State, and the American Indian, 162–168.

                                                                                                                            (45.) Ruben Quick Bear v. Leupp, 210 U.S. 50 (1908).

                                                                                                                            (46.) Prucha, The Churches and the Indian Schools, 161–178.

                                                                                                                            (47.) “Courts of Indian Offenses,” November 1, 1883, “Rules for Indian Court,” August 27, 1892, in Prucha, Documents, pp. 160–162, 186–189.

                                                                                                                            (48.) Prucha, American Indian Policy in Crisis, 362–364; Robert M. Utley, The Indian Frontier of the American West 18461890 (Albuquerque, NM: University of New Mexico Press, 1984), 253–257; Lawrence C. Kelly, The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (Albuquerque, NM: University of New Mexico Press, 1983), 295–348.

                                                                                                                            (49.) Sarah Barringer Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (Chapel Hill, NC: The University of North Carolina Press, 2002), 19–54.

                                                                                                                            (50.) Leonard J. Arrington and Davis Bitton, The Mormon Experience: A History of the Latter-day Saints (New York: Vintage Books, 1979), 68–82; Gordon, The Mormon Question, 23; Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 18301900 (Urbana, IL: University of Illinois Press, 1988), 83–113.

                                                                                                                            (51.) Murphy v. Ramsey, 114 U.S. 15 (1885), 45.

                                                                                                                            (52.) Gordon, The Mormon Question, 19–54.

                                                                                                                            (53.) 12 Stat. 501 (1862); Firmage and Mangrum, Zion in the Courts, 131–133; Orma Linford, “The Mormons and the Law: The Polygamy Cases, Part I,” Utah Law Review 9 (1964): 308, 314–316.

                                                                                                                            (54.) H.R. Rep. No. 83, 36th Cong., 1st sess. (1860).

                                                                                                                            (55.) Reynolds v. United States, 98 U.S. at 162 (1878). 164.

                                                                                                                            (56.) Firmage and Mangrum, Zion in the Courts, 161–166; Linford, “Mormons and the Law,” 317–319.

                                                                                                                            (57.) H.R. Rep. No. 2735, 49th Cong., 1st sess. 5–8 (1886); Linford, “Mormons and the Law,” 326.

                                                                                                                            (58.) Davis v. Beason, 133 U.S. 333, 341–344 (1890).

                                                                                                                            (59.) The Late Corporation of the Church of Jesus Christ of Latter-day Saints v. Untied States, 136 U.S.1 (1890), 49–50.