In Re Adoption of E., or Cracks in an Imaginary Wall

Ever since I posted Legal thought of the Day, No. 2, regarding Connecticut’s early-nineteenth-century  blasphemy and apostasy laws, I’ve become very much interested in the legal history of Atheism in America.  Personally, I have never found the arguments in favor of the existence of the God of the Bible, or any other God for that matter, to be very convincing.  It fascinates me to think that if I had publicly voiced this opinion in colonial America, a group of nations purportedly founded upon the principle of Religious Liberty, I would have lost my civil liberties at best and my life at worst.

Conservative Christians are correct about one thing:  The First Amendment was not intended to provide a “wall of separation between Church and State, ” as Thomas Jefferson wrote.  A careful reading of the Amendment suggests as much:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;….

“Congress”, in this passage, refers to the legislative body of the Federal Government alone, and to no other.  At its ratification, the Amendment did not enjoin state governments from enacting the most draconian religious laws they could fancy.  The Supreme Court was complicit in these efforts even beyond the ratification of the Fourteenth Amendment 1868.  The Fourteenth Amendment reads in part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This passage was intended to offer all citizens, and especially freed slaves, a measure of general relief from the institutional injustices of state governments.  Still, neither the First Amendment, nor any of the remaining Amendments now believed to be the foundations our Liberty, were held to be binding upon the states.  This didn’t change until well into the 20th century, when the Supreme Court handed down a series of cases “incorporating” most of the Bill of Rights into its reading of state laws.  It wasn’t until a pair of cases in the 1940s that the Supreme Court held the First Amendment–freedom of religion in particular–to be enforceable upon the states.  Let me repeat that: The 1940s.

So from now on, whenever you hear anyone suggest that the Founding Fathers founded this nation on a foundation of Freedom of Religion for all, you will know this to be baloney of a supreme order.  “Historical Revisionism” might be a better name for it.

Conservative Christians are correct on this historical point, but their presentation of it leads me to believe either that they are either grossly ignorant of the institutional anti-Atheist bigotry that pervaded our nation in its early years, or that they affirmatively approve of it.  I’m thinking specifically of William Federer, an occasional guest host on Eagle Forum Live! who spent seven-eighths of this YouTube video pining wistfully for the theocratic despotism of colonial America before accusing 20th century Atheists of “judicial tyranny”.

Others follow a similar pattern.  The above-referenced article from the Heritage Foundation, The Mythical “Wall of Separation”, contains the section heading, “Legacy of Intolerance”.  You would think that, somewhere under this heading, author Daniel L. Dreisbach would reference the 1750 Connecticut law revoking from those who twice denied the being of a God the rights to bring suit in court, to be the guardian of a child, and to be either the executor of a will or the administrator of an estate.  You would think that there would be reference to Connecticut law that made blasphemy a capital crime through 1784, and a crime punishable by forty lashes well after Thomas Jefferson’s stint as president.  Perhaps it would have been apropos to mention that judges were so blinded by their mistrust of Atheists that they traditionally forestalled justice by holding Athiests incompetent to testify in trials.  Was there any mention of the numerous state constitutions that have foreclosed eligibility for public office specifically to those who denied the being of a God?  None of this intolerance made the cut; we are treated instead to the story of how the idea of separation of church and state “has been used to silence people and communities of faith and to exclude them from full participation in public life.”  Right.  While this may well be true, it is no reason to completely ignore the centuries of concerted effort on the part of theists to exclude Atheists from the same.

Not all of this effort is so distant in the past that we can afford to write it off as old history.  As recently as 1970 Atheists in New Jersey had to fight for the basic right to adopt children.  When William Federer exalts our nation’s Christian Heritage without criticism, I’m left to presume that he favors this scurrilous brand of “religious liberty”:

On June 27, 1969 plaintiffs received from the Children’s Aid and Adoption Society another child, E, born on June 19, 1969. E and D are now residing with plaintiffs. The Society in its report to the court stated: ‘Plaintiffs have no church affiliation however the agency has found them to be people of high moral and ethical standards.’ They recommended to the court her adoption.

At E’s hearing on August 25, 1970, the court questioned plaintiffs as to their religious affiliations. They testified they had no belief in any religion and did not believe in the existence of a Supreme Being. The court must consider the physical and spiritual welfare of the child….

Plaintiffs’ right to adopt a child is subject to court approval as to whether the best interests of the child would be promoted by permitting the adoption. There is no absolute right of adoption–it is a privilege. …

The welfare of the child is the paramount consideration in controlling the discretion of the court. … This paramount consideration supercedes any right the plaintiffs have in seeking the adoption.

N.J.Const. (1947), Art. I, par. 3, in part provides:

No person shall be deprived of the inestimable privilege of worshiping Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense whatever be compelled to attend any place of worship contrary to his faith and judgment; …

N.J.S.A. 2A:4-2 states:

It is hereby declared to be a principle governing the law of this state that children under the jurisdiction of said court are wards of the state, subject to the discipline and Entitled to the protection of the state, which may intervene to safeguard them from neglect or injury and to enforce the legal obligations due to them and from them.

In the present case E is of tender years. The decision of the child to form a belief or nonbelief in a Supreme Being must await the time when it has the maturity, understanding and independent volition to do so. In Jacques, supra, the court said

It is the instinct of a child to attach itself and cling to those who perform toward it the parental office, and they become endeared to it by ministering to its dependence. …

The child should have the freedom to worship as she sees fit and not be influenced by parents or exposed to the views of prospective parents who do not believe in a Supreme Being.

The court concludes that the best interests of E will not be promoted by granting the adoption. Accordingly, plaintiffs’ application to grant the adoption of E is denied.

The child is to be returned to the Children’s Aid and Adoption Society for further action by it. …

~New Jersey Superior Court Justice Camarata, In re Adoption of E., 112 N.J.Super. 326, 271 A.2d 27 (N.J. 1970), reversed by In re Adoption of E, 59 N.J. 36, 279 A.2d 785 (N.J. 1971).

In 1970, a New Jersey superior court essentially resurrected the historical prohibition on Atheists to be guardians of children.  This was the law of that land until the Supreme Court of New Jersey reversed it the following year. This is the type of law that threatens to throw us back to the dark ages of freedom of thought.  This is the history that Atheists will not have repeated.


One Response to In Re Adoption of E., or Cracks in an Imaginary Wall

  1. autofyrsto says:

    At some point I should correct my criticism of Daniel L. Driebach’s piece. One need not have been an Atheist have been convicted under blasphemy laws, although outspoken Atheists almost certainly would have been guilty of blasphemy by default. These laws probably would have fallen more under the scope of the intolerance that Driebach wrote about: laws used by one religious denomination to oppress another.

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