CHAPTER III. CONSTITUTIONAL LAW

*35.* _Religious Tests._—The constitution of the United States provides

that “no religious test shall ever be required as a qualification to any

office or public trust under the United States.”(61)

*36.* _Test Oath, Attainder._—No test oath of any kind, whether religious

or otherwise, can be required of a citizen of the United States. Therefore

the test oath of Congress requiring an officer to swear that he never

voluntarily bore arms against the United States, was held

unconstitutional. Exclusion from any vocation on account of past conduct

is punishment and contrary to the constitution on the subject of bills of

attainder.(62) But there is a limitation to this rule to prevent the open

violation of the laws of the United States or any State under the cloak of

religion.(63)

*37.* _Establishment of Religion, Free Exercise._—The first amendment to

the United States constitution provides that “Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise

thereof.”

*38.* _Sovereignty, States, Bigamy._—The courts have held that this

provision applies to Congress only, and can not be construed to interfere

with the sovereignty of the several States; that the constitutional

guarantee of religious freedom was not intended to prohibit legislation

against polygamy; and that section 5352 of the United States Revised

Statutes against bigamy, is constitutional. Also, that on a trial for

bigamy in Utah, a man who was living in polygamy was not competent to

serve as a juror.(64)

*39.* _Church of the Latter-Day Saints._—In 1851 the assembly of the

so-called State of Deseret, which subsequently became the territory of

Utah, incorporated “the Church of the Latter-Day Saints.” In 1887 Congress

repealed the act of incorporation and abrogated the charter, which the

Supreme Court held was within its plenary powers. The pretense of

religious belief can not deprive Congress of the power to prohibit

polygamy and all other open offenses against the enlightened sentiments of

mankind.(65)

*40.* _Crime, Religion._—The law prohibiting any person who is a

polygamist or bigamist, or who teaches, advises, counsels, or encourages

the same, from holding any office of honor, trust, or profit, is

constitutional; and a crime is none the less so, nor less odious, because

it is sanctioned by what any particular sect may designate as religion. A

state has the right to legislate for the punishment of all acts inimical

to the peace, good order, and morals of society.(66)

*41.* _Donation, Hostile, Religion._—On the other hand the United States

Supreme Court declared the legal right of donees of a college to make as a

condition of the donation that all ecclesiastics, missionaries, and

ministers of any sort, should be excluded from holding any station of duty

in the college or even visiting the same. The condition being only

negatively derogatory and hostile to the Christian religion, did not make

the devise for the foundation of the college void.(67)

*42.* _Christian Scientist._—A law requiring a person to be a physician to

treat the sick, is constitutional; and the defense of a person who has no

license to practise, that he is a Christian Scientist, is not good. Also,

a parent must furnish a doctor for his sick child, notwithstanding that he

believes in prayer cure.(68)

*43.* _Protestant._—In the early days, under the constitution of the

State, the courts of Massachusetts practically held that the Protestant

religion was the religion of that State.(69) Also, the constitution of New

Hampshire referred to different Christians, and the court in construing

the terms “Roman Catholic” and “Protestant,” held that any one who did not

assent to the truth of Christianity as a distinct system of religion,

could not be classed as either. The court stated that Mohammedans, Jews,

pagans, and infidels, are neither “Catholics” nor “Protestants.” The term

“Protestant,” as used in the constitution of New Hampshire, includes all

Christians who deny the authority of the Pope of Rome. When the children

of Protestant parents renounce that religion, and voluntarily accept

another, they cease to be Protestants.(70) At present under the

constitution of New Hampshire, the legislature may authorize towns or

parishes to provide for the support of Protestant ministers.(71)

*44.* _Hospitals, Sisters, Appropriation._—In 1864, Providence Hospital,

of Washington, was incorporated by an act of Congress, for general

hospital purposes. In 1897, $30,000 was appropriated for the District of

Columbia to put up two isolation buildings in connection with two

hospitals in that city, to be operated as a part of such hospitals.

Providence Hospital was selected as one, and because it was in charge of

Sisters of the Roman Catholic Church, the right of Congress to make the

appropriation was disputed. Among other things, Judge Peackham says:

“Whether the individuals who compose the corporation under its charter

happen to be all Roman Catholics, or all Methodists, or all Presbyterians,

or Unitarians, or members of any other religious organization, or of no

organization at all, is of not the slightest consequence with reference to

the law of its corporation, nor can the individual beliefs upon religious

matters of the various incorporators be inquired into.” The appropriation

was “for two hospital buildings to be constructed in the discretion of the

commissioners of the District of Columbia on the grounds of two hospitals

and to be operated as a part of such hospitals.”(72)

*45.* _Constitution, Rights._—The provisions in the constitution do not in

any way interfere with property rights obtained by a church organization

prior to its adoption.(73)

*46.* _Aid, Contracts._—Under the constitution of the United States,

Congress cannot make appropriations for nor give aid to any denomination.

Also, similar provisions are in many of the constitutions of the States.

However, many cases arise out of contracts which border upon these various

rules, and in some States the constitutional provision of the State is

such that the State Legislature may legislate concerning religion and give

certain aid and support thereto. Paying rent to a congregation for a

school-room is not an appropriation or aid to a church contrary to the

constitution.(74)

*47.* _Protestant Teacher, Tax._—Formerly every parish in Massachusetts

was obliged to elect and support a Protestant teacher, and might erect

churches and parsonages. To provide the expenses thereof, a tax might be

assessed upon the polls of the inhabitants.(75) Until 1890 New Hampshire

permitted a tax to be levied in towns for religious purposes. It is still

legal under the New Hampshire constitution to tax the inhabitants for the

purpose of supporting Protestant teachers, but not to support a teacher of

any other denomination.(76) A section of land in every township in Ohio

was set apart for religious societies, in which they all shared

equally.(77) Vermont had a similar provision.(78)

*48.* _Office, God._—The constitutions of Arkansas, Mississippi, North

Carolina, South Carolina, and Texas, prohibit a man from holding office

who denies the existence of a Supreme Being; and the constitutions of

Delaware, Maryland, Kentucky, and Tennessee, make all clergymen ineligible

to hold a civil office.(79)

*49.* _Religious Liberty, Bible, Religious Garb, Wages._—The authorities

are not uniform as to what constitutes a violation of religious liberty.

The question of whether the reading of the Bible in the public schools is

a violation of the constitution, is an open one in some States and in

others the courts have passed upon it, some holding that it is a violation

of the constitution,(80) and some holding that it is not.(81) The weight

of authority seems to permit the reading of the “King James” Bible,(82)

and where portions only are read, as in “reading books” prepared for

school work, or where the children are not obliged to be present during

the exercises, the cases seem to be unanimous that it is not a violation

of the constitution.(83) In Pennsylvania the court held that while Sisters

in their religious garb might be teachers in the public schools, they

could not give instruction in the Catholic religion at the schoolhouse

before or after school hours, or at any other time use the school building

for religious purposes. Also, in Wisconsin the court decided that while a

portion of a parochial school building might be leased for public school

purposes and the Sisters be employed therein as teachers, religious

exercises and instructions could not be given in such leased premises.(84)

In New York it was held not only that Sisters could not wear their

religious garb or pray in school, but that they could not collect wages

for teaching.(85)

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