Spheres of Liberty and Free Exercise: Lessons for Fulton from Jefferson's Correspondence with Ursuline Nuns

A guest post on Fulton v. City of Philadelphia from Professor Stephanie Barclay (Notre Dame)

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I am happy to pass along this guest post from Professor Stephanie Barclay (Notre Dame). She writes about the history that may be relevant to the original understanding of the Free Exercise Clause.

From an originalist perspective, how should we think about protections for individual rights when government has expanded to regulate spheres of society that were dominated by private activity during the Founding-era? This question is relevant in many constitutional contexts, but it has particular salience for the meaning of Free Exercise protections in Fulton v. City of Philadelphia, a case the Supreme Court will hear oral argument in this week. This post discusses a historical example involving the Ursuline nuns in New Orleans that may shed light on this question. But first, it's helpful to understand how this issue arises in Fulton.

One of the issues before the Supreme Court in Fulton is whether the government has the right to exclude a Catholic ministry from providing foster care services to vulnerable children. Catholic Social Services (CSS) has been engaged in providing foster care for over 200 years in Philadelphia. Some might say that CSS basically invented the practice in the City.

In the 1790s, Philadelphia was hit hard by the yellow fever epidemic, and countless children were suddenly left parentless. (As an interesting side note, the Supreme Court actually shut down one of its terms because of the severity of this outbreak.)

This image depicts volunteers collecting the dead and dying in Philadelphia. Over 5,000 residents died from this epidemic.

In response to this crisis, religious groups, including Catholics and Jews, established orphanages in the area. The first Catholic orphanage in Philadelphia—and one of the first orphanages in the United States—was founded in 1798. See Timothy A. Hacsi, Second Home: Orphan Asylums and Poor Families in America 18 (Harvard 1997). The Sisters of St. Joseph took over St. John's Orphan Asylum in 1847, and by 1910 they were caring for 26,000 children in the City. This ministry included foster care, where the Catholic Children's Bureau would find homes for children in need instead of just keeping them in an orphanage.

Over time, the government became more involved in foster care. Today, the government exercises exclusive control over the power to remove children from their homes and to decide which agencies get to provide core foster care services to families that take in foster children. For example, CSS's representative testified in proceedings below that it would be "breaking the law" for that agency to provide foster care services to foster families without a contract. And the City acknowledged that the foster families currently relying on CSS must either "find a new agency" to work with, or stop fostering children.

This government control of foster care itself hasn't necessarily been a problem, until just two years ago when the City sought to close CSS down unless it agreed to violate its religious beliefs and certify same-sex couples. No couple had ever actually asked for this service from CSS, but the City still wants a commitment in advance that CSS would be willing to violate its beliefs as a condition of being able to continue serving foster families in the City. Because CSS couldn't agree to violate their religious beliefs about marriage, they now stand to lose the ability to continue their longstanding foster care ministry.

In a word, government has expanded to control an activity previously within the realm of private religious ministries. And now, through government's monopoly power, religious groups are forced to choose between violating their beliefs and performing the ministry the government's way or being kicked out altogether. Given that the baseline of a large welfare state didn't exist at our country's Founding, can history shed any light on the original meaning of the Constitution in this type of conflict?

The Founding-era historical example involving the Ursuline nuns seems to support the idea that religious ministries should retain important protections for their original sphere of freedom, even if government exerts control over new aspects of society. Beginning in 1727, Catholic nuns in New Orleans operated a convent that included a school for poor children. When the U.S. Government completed the Louisiana Purchase, the convent fell within the boundaries of the newly acquired territory. As a result, it could have easily been assumed that this property now fell to the ownership and control of the federal government. The nuns wrote a letter in 1804 seeking clarification about the future of their ministry. The nuns stated, "it is not therefore [the nuns'] own cause but that of the Public which they plead — it is the cause of the Orphan, of the helpless child of Want."

Jefferson responded and assured the nuns that "the principles of the constitution" provided a "sure guarantee" that the property would be "preserved to you sacred and inviolate," and that the convent "will be permitted to govern itself according to its own voluntary rules, without interference from the civil authority." He then said that "whatever diversity of shade may appear in the religious opinions of our fellow citizens," the "charitable objects of your institution . . . cannot fail to ensure it the patronage of the government it is under."

Note that this was not just a pledge Jefferson was making magnanimously—he believed that the "principles of the constitution" required preserving this religious ministry, notwithstanding the recent government acquisition of the Louisiana territory. And he did not think that preserving the ministry meant forcing the nuns to run their ministry according to the government's new rules. Rather, he noted that the ministry had a "sure guarantee" that they would operate according to its "own voluntary rules, without interference from the civil authority."

Mark Storslee has written about how examples like this illustrate that the Establishment Clause does not prohibit religious ministries operating even in the context of government funding or property. And I agree. But one could potentially take a further lesson from this example. Specifically, one could argue that there were certain spheres of liberty the Founders understood that religious groups and institutions would be able to operate within free from government interference, notwithstanding government expansion. Or, at the very least, these ministries would receive thick constitutional protection within these spheres even as government exercised control over new realms.

The ministry of churches caring for orphans was widely recognized and appreciated during the early history of our country, and there is (to my knowledge) no Founding-era evidence that government could—or even tried to—interfere with such ministries. Given the expansion of the modern welfare state into these previously private spheres of religious activity, the burden should still remain on the government to justify that it has originalist/historical support for its modern intrusion, not the other way around.

So how would one operationalize this sort of original understanding into a doctrinal test? Two alternatives present themselves. First, to the extent that Employment Division v. Smith remains good law, perhaps certain spheres of liberty where government did not interfere with religious practice during the Founding period operate as an exception to Smith's deferential rule. The Fulton context of religious ministries to orphans seems like a prime candidate for this sort of exception. The Ursuline Nuns that Jefferson wrote to were also caring for destitute children, after all. (At least three other amicus briefs in Fulton discussed this history of religious organizations providing adoption and foster care services in our country. See here, here, and here.)

However, under this first approach, it would likely be fairly easy for religious organizations to argue that religious exemption conflicts are caused by government regulation that extends beyond what was understood as the accepted scope of government during the Founding era. This may be true both in terms of subject matter, but also in terms of volume. As former Attorney General Edwin Meese's amicus brief notes, "Given the ever-increasing encroachment of the modern administrative state into daily life, a course-correction becomes  more  vital  to  preserve  the  Framers'  intent  that religious duties will take precedence over the demands  of  the  government." In a similar vein, Keith Whittington has noted that the volume of statutes passed by legislatures at the Founding period was much lower than it is now. In fact, "the output of Congress" measured by the number of pages in the Statutes at Large "has far outstripped the judicial review activity of the Supreme Court." Keith E. Whittington, Repugnant Laws: Judicial Review of Acts of Congress From the Founding to the Present 27 (2019). And the amount of policies and regulations passed by agencies dwarfs that ballooning legislative activity by Congress. Thus, higher numbers of judicially created religious exemptions would likely be necessary to even attempt to maintain the scope of religious freedom that was originally understood in the context of free exercise protections.

All of this points to a second alternative doctrinal test supported by the Ursuline nuns' example: overrule Smith altogether and allow for a default rule of heightened scrutiny in religious exemption conflicts. Such a background norm is consistent with the idea that government should justify its ability to burden religious exercise in spheres of liberty government largely left uninhibited during the Founding period. And where government can point to a use of its power that actually advances an interest originally understood as one sufficient to limit religious exercise, such government regulation would likely satisfy strict scrutiny.

On the other hand, if the Court does not adopt at least one of these approaches, the risk is that government could obliterate the "promise of the free exercise of religion" simply through the reality of its never-ending expansion. All the government need do is license or exert control over a new activity, and then condition religious groups' continued participation on their willingness to forfeit their religious beliefs and practices. Whatever the Free Exercise Clause meant, surely it could not have been that.

Stephanie Hall Barclay is an Associate Professor of Law at the Notre Dame Law School, where she also leads the Law School's Religious Liberty Initiative. Elsewhere, she has written about other historical, normative, and doctrinal reasons that support overruling Smith.

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  1. Thirdly, it is also possible that Jefferson simply made a mistake of fact when thinking about the application of the law to facts.

    1. Could you be more specific as to what exactly you mean?

      1. If Jefferson thought that running an orphanage was a religious activity, that seems like an error of fact to me.

  2. As former Attorney General Edwin Meese’s amicus brief notes, “Given the ever-increasing encroachment of the modern administrative state into daily life, a course-correction becomes more vital to preserve the Framers’ intent that religious duties will take precedence over the demands of the government.”

    This is an important and often overlooked point. The modern state has encroached on areas of life that would have been unthinkable before. The notion that the state at the time of the founding, or even after the Civil War, would dictate what kind of wedding cake a baker would have to bake for a customer would have been laughable. Not because of religious liberty, but because of general liberty. As the modern state expands, liberty has contracted, and the potential for friction between the state and religion has increased.

    1. It’s a stupid point. “Religious duties” were not intended to be, are not, and should not be superior to government authority.

      Anti-government cranks and gullible consumers of organized superstition may disagree . . .

      1. Uh, actually, that’s kinda what “religious liberty” means. For example, your religious duty not to avoid what you regard as idolatry is superior to the government’s demand that you make an overt demonstration of loyalty to it, whether in the form of burning grains of incense to Caesar or that of pledging allegiance to the U.S. flag.

  3. Since when does a religion get to dictate to the public how the public wants it’s resources managed?

    Religion is weakening everyday and the public is no longer bending to its will.

    Next on line: Tax ’em.

    Good for Philly!

    1. its not it’s (EDIT FUNCTION!)

      1. Don’t you mean “it’s not it’s”? (Sorry, couldn’t resist, I do realize both “its” and “it’s” could grammatically be used for the first one, heh.)

        It’s not it’s, it’s its.

    2. I happen to agree with you that in this case, the argument for a First Amendment exception is very weak.

      But how far do you take your thesis? If the City of Philadelphia made a rule that government money would not go to any organization of “Papists” or even any organization of “Theists,” would that be Constitutional in your view?

      1. That’s not a generally applicable law, is it?

        1. I am asking about his statement that the government gets to decide how it spends its money. You are suggesting one such limit.

          1. Well, most general rules have small exceptions.

            The government gets to decide how to spend its money.

            But the government would be in trouble if:
            A. No money goes to “the blacks.”

            B. No money goes to “the Papists.”

            C. No money goes to “the ladies.”

            D. No money goes to “the Chad, because he was a meanie in high school.”

            1. What part of the Constitution does D violate? The Meanie Amendment?

              1. Equal protection clause.

                1. Or it could be considered a bill of attainder.

              2. EPC: class of one.

                Seldom litigated because it’s usually a loser (often a crazy person saying the government is just singling them out), I think that if the government actually writes that they are, in fact, singling you out for irrational and wholly arbitrary treatment you’d probably have a pretty good case. 🙂

                But what do I know? It’s not like we have legal discussion on this blog.

    3. Religion existed and helped the needy of one type or another. It is even baked into writings.

      It has done so long before upstart government-as-religion insinuated itself.

      In many aspects, government insinuating itself into something, then declaring religion as a quaint lifestyle choice that is hereby stripped from it, has been a problem for a long time.

      “We declare your religion shall have no input to your business, your ancient helping of the poor, the sick, orphans.”

      I have disdain for religion, but swapping religious control of everything for secular pseudo-religious control doesn’t really solve the problem removing religion from the direct handlebars of control was supposed to address.

      1. You know there’s an election tomorrow, right?

        1. You know there was an election four years ago, right? Many of “your type” seem to have forgotten that.

          1. That one doesn’t count because “SHE” was robbed.

          2. “You know there was an election four years ago, right? Many of “your type” seem to have forgotten that.”

            Perhaps memories of Trump — the birtherism, the vanity, the vulgarity, the bigotry, the lies, the middle finger directed toward educated and accomplished Americans — will provide solace as you comply with the preferences of your betters during a Biden administration.

    4. Since when does the public get to dictate to religions?

      1. Probably since reason overtook superstition among competent adults.

        1. The totalitarianism lives loudly within you. Tutto nello Stato, niente al di fuori dello Stato, nulla contro lo Stato.

    5. Next on line: Seize their property

      Next on line: Put them in camps

      Next on line: Kill them

    6. Catholic Social Services isn’t trying to dictate to the public how the public’s resources are to be managed. It’s trying to preserve the right to determine how its own resources are to be managed.

      If religion is weakening so much, there should be all the less need for the state to force religion to do its will, since there will be fewer and fewer people who, for instance, will be turning over their children to Catholic Social Services for placement.

      And when you tax the churches, are you also going to tax secular non-profits, such as museums, think tanks, ideological advocacy groups, and canine/feline adoption agencies?

  4. “The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is compelling, permitting him, by virtue of his beliefs, to become a law unto himself, contradicts both constitutional tradition and common sense.”

    “The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind ranging from compulsory military service, to the payment of taxes; to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.”

    (internal citations and quotatins omitted)

    It’s truly amazing that Scalia’s two greatest majority opinions are Lujan and Empl. Div.

    And today’s so-called conservatives are hell-bent on overturning both of them.

    1. Chevron.

      Same deal from the GOP wanting to overturn it.

      Scalia moved substance to the right via adherence and advocacy for a doctrine that had such outcomes.

      Nowadays the hunger for outcomes has outstripped any doctrine.

      1. “Nowadays the hunger for outcomes has outstripped any doctrine.”
        Unfortunately one can expect it to get worse

      2. I’ll probably save my thoughts to a longer post, but basically I agree with you.

        It’s a shame, too. I still remember encountering Employment Div. v. Smith (and Lujan) in law school, and those cases, more than his dissents, really made me appreciate his conservative jurisprudence.

        It’s almost bizarre to think about this now, but your typical “liberal” law student recoils when they first think of the fact pattern of Smith (just let them have their peyote) but Scalia, in adopting the bright-line formalism, really shines, and exposed the dangers of the wishy-washy O’Connor approach.

        1. “It’s almost bizarre to think about this now, but your typical “liberal” law student recoils when they first think of the fact pattern of Smith (just let them have their peyote) but Scalia, in adopting the bright-line formalism, really shines, and exposed the dangers of the wishy-washy O’Connor approach.”

          There was a bipartisan “recoil” from the decision in 1993 – the Supremes fought back, the original RFRA was modified, but we got RLUIPA.

          Liberals – including President Clinton – stood shoulder to shoulder with conservatives to defend the First Amendment. Which is as it should be, since the failure of one branch of government to defend the Constitution makes it even more important for other branches to defend it.

          Did you also learn “strange new respect” for Scalia from his decision that people who grow marijuana in-state can be prosecuted pursuant to the Interstate Commerce Clause?

      3. “Nowadays the hunger for outcomes has outstripped any doctrine.”

        We learned from your side.

        1. I knew one of the usual suspects would say that.

          That kind of demonization of the other side as justification for your naked power grabs is a trick of the right I don’t see much on the left.

          It’s why I think whenever Trump leaves office, the GOP will not go back to normal. Y’all took and are continuing to take some bad medicine that is fundamentally antithetical to a republic.

          1. “I don’t see much on the left”

            LOL So surprising you see nothing bad on the left Gaslito.

            Your side lost one election and its been a bunch of hair on fire maniacs ever since. Maybe the non normal side is yours?

    2. Scalia then (after Boerne) stayed silent in RFRA cases & joined the RFRA on steroids Hobby Lobby decision. Scalia seems to have gone half the way at least in overturning Smith.

    3. Next you’ll say that conservatives should support public housing because Robert Taft did.

  5. The only issue here is whether or not a religious organization may impose its beliefs on the public in general. There is no interference by government with the practice of religion in this case. There is only the question of whether or not government must accomodate the bigotry and hatred of some groups masquerading under the cloak of religious freedom in their dealings with government.

    The easy question that will settle this is what about a religous organization that thinks inter-racial marriage or interfaith marriage is the work of the devel and that the offspring from such a union are the spawn of satan. Are they allowed to hold those beliefs? Absolutely!! Are they allowed to engage in regular commerce with governments and the people that have decided such beliefs are abhorent? Absolutely not.

    We need to call bigotry for what it is. Bigotry.

    1. Many progressives of this world want to replace “freedom of religion” with “freedom of worship.” That is, they want a world where you can worship quietly on Saturday or Sunday all you want within the walls of your little building. But lo, thou shalt not practice thy faith outside of there, no matter what your dogma or doctrine says. Except for the Muslims of course, they have to be accommodated at every turn.

    2. State – “we welcome contractors to fill this service need that we would like to offer”

      Catholics – “ok we will help”

      State – “ok just not you because you don’t like gay people and we have decided not to contract with people like you”

      Catholics – “so in order to provide a state sponsored service you are mandating we violate our religious beliefs?”

      State – “yes”

      See the problem there?

      1. You left out that Catholics have been doing this long before the state got involved.

        1. And that only makes it more problematic when the state tries to take over a service that used to be provided by private actors THEN attempts to impose its morals and values on anyone who wants to continue providing that service.

      2. No, don’t see a problem.

        You are free to hate whatever group you want (gays, blacks Jews, Muslims, Native Americans) and you are free to claim a religious right to do so and you are free to exclude those groups from your congregations but no, you are not free to engage in commerce with the government or even with the private sector in which you foist your religious prejudice and hatred on the public or private sector.

        Why is this even controversial?

        1. It’s only controversial because this is a libertarian site and you want to force others to bite.

          1. “bow” damn autocorrect.

  6. First test of the 6-3 court. A ruling in favor of the government means its Charlie Brown and the football again, that the courts will never deliver on culture issues.

  7. Not all Catholics are gay-bashing bigots.

    1. That’s right, there is a nice contingent of gay priests who have orgies in the Vatican and molest underage minors, so they aren’t into gay bashing (at least verbally, but maybe physically).

      1. All of this is of diminishing importance. America becomes less religious every day. The Catholic Church is closing churches and schools regularly — sometimes monthly, it seems — in my community. I expect the decline in religiosity to accelerate, as childhood indoctrination becomes less common.

        1. I won’t disagree, and I’m glad there are less superficial Catholics. It would be better if the Catholics that remained, approached doctrine more fully than half-heartedly. Many left out of plain old embarrassment and the abuse, and the cover ups.

          But you’re wrong about childhood indoctrination, it’s increasingly coming through secular public institutions. And it is indoctrination.
          The cultural Marxists had the right idea, on accident or on purpose, and that was to get ahold of the public schools and universities. You have kids that you didn’t abort? You’d slobber all over the shitty progressive teaching that predominates in non-math subjects.

  8. If the Ursulines excluded black kids from their program, Jefferson would have been fine with it, and it would have survived Constitutional attack at the time.

    1. Maybe not! I mean, ol’ TJ probably would have asked if they had any black girls, because that’s how TJ rolled.

      1. If Jefferson had a PorhHub account, his viewing history would have a lot of inter-racial porn. He’s mocked a bit to much methinks, for that. But in all honesty, I think you’re being a bit unfair to Jefferson. Sure, his record is mixed, but he banned the importation of slaves, did not want slavery expanded to the territories via the Missouri Compromise, and made sure those slaves he did set free had skilled trades so they could make an income. Given those three points, I’d say he’d have been fine with the Catholic nuns helping blacks.

        So, go make fun of someone else. I’m not even a Jefferson fan, and think the world would have been a better place had he lost in 1800 to Adams.

        1. I find Jefferson’s hypocrisy in this area pretty much unforgivable.

          Of all the founding fathers, Jefferson gets far too much credit, and too little blame. Banging his 15-year old slave might be one of the most serious demerits, but is hardly the only one.

          After all, he is the person who sung the praises of equality and freedom while baning his own slaves. Lauded the farmers while being an effete francophile wine snob who lived off the labor of others. Demanded strict fidelity to the Constitution (that he had no hand in) and executive weakness and then blew it off when he became President.

          Was against debt and banks …. probably because he was a profligate spender who was always in debt and needed others to bail him out.

          In short, he was the classic example of “Do what I say, not what I do” that probably endears him to the modern GOP.

          1. When Hemmings and Jefferson started their tete-a-tete, she wasn’t a slave. She was in France, a free woman, and she came voluntarily back to VA with him. He had been paying for months of French lessons, and she could very well have gone off on her on in an era where she was considered an adult.

            What endears Jefferson to the modern GOP, if anything, is respect for the Founders of this nation, warts in all. Oh, and his rhetoric about freedom. He himself later in life realized that perhaps he had gone to far, such that the French Revolution led to less freedom and death.

            1. “When Hemmings and Jefferson started their tete-a-tete, she wasn’t a slave.”

              Assuming facts not in evidence.

              Hemmings was born enslaved. It is unclear when Jefferson started banging her, but it was (at latest) when she was 15, based upon the assumption that her first child in Paris was his.

              Don’t forget that when she was sent to France (and when Jefferson started non-consensually banging her), she was still a slave, as that didn’t end until after the Revolution. And that, given her entire extended family was still enslaved in Virginia (known for their generosity to the Black enslaved people of the time), it is questionable as to how much volition young Sally had with regard to returning to Virginia.

              But sure. You can try and “make cute” by calling it a tete-a-tete, or call it for what it is. An old white guy was banging his young slave, who had no real choice in the matter. HOW ADORABLE!

              1. Most historians assume, based on letters and other evidence (including Abigail Adams comments on things), that after Jefferson had a break-up with his affair with a married woman, while recovering from broken arm, that he started to see Hemmings. It’s a safe bet, but we admittedly don’t know for sure as he was secretive about the situation.

                Her extended family was in VA, yes, but not herself. You presume a total lack of free will on her part. Once a free woman after Jefferson left, she could have visited her family at a point in the future. VA had many free blacks, and Jefferson would not have tried to re-enslave her. She could speak French, we don’t know how much, but we know Jefferson from his diary spent a considerable sum on her and the lessons went on for quite some time.

                Can’t take a joke, seriously, as we were speaking about France and I threw in some French for a sexual liaison (see what I did there?). Grow up.

                Jefferson was about 40 in Paris. Is that “old”. Maybe. Do you feel the same scorn for the May/December romances in Hollywood? For gay sodomites attacking altar boys. Again, grow up?

                1. Do you have a lot of evidence for men that are over 40 banging 15 year olds right now?

                  No?

                  How about men that are over 40 banging 15 year olds (at BEST) that they have enslaved.

                  No?

                  So, what? Trying to make it cute again? Trying to distract by switching to your favorite topics, bashing Catholics and bashing gay people?

                  You are a piece of work. On the one hand, you think it is so romantic for an old white guy to rape his underage slaves.

                  On the other hand, you can’t help but continually attack Catholics and Gay people.

                  That’s some messed-up morality for you. But par for the course.

                  1. What describe as “making cute,” is making a joke. Lighten up Francis.

                    I bring to the table history based on reading 3 separate biographies of Jefferson including personal correspondence with one of the world’s experts on him, exposing your ignorance for the world to see, and you trot out personal attacks and false equivalencies and inane comparisons. Warped morality. Par for the course.

                    You find unforgivable the acts of a man some 200+ years dead, but heap no similar scorn on people doing great crimes today, based on standards that we share. Warped morality. Par for the course

                    You’re so silly in taking your today’s standards and applying it to the past. Warped morality. Par for the course.

                    (p.s. I’m not anti-Catholic…I’m anti child molester Catholic. There a difference.)

                    1. In almost every single thread you are a part of, you bring up your hatred of Catholicism and your hatred of gay people. Your work speaks for itself. At this point, there is very little to distinguish you from Aktenberg78, other than he is (somewhat) less discriminate in his targets and (somewhat) more openly genocidal.

                      As for your claimed bona fides, whatever. On the internet, no one knows you’re a dog. If your point is the simple one of, “Hey, there were a lot of old white guys in Virginia raping their slaves back then. At least Jefferson wasn’t as bad as most of the rapists!” then I wouldn’t have any particular reason to criticize you.

                      But, again, your steadfast desire to minimize the rape of slaves, and to boost what is most assuredly a blot on Jefferson, cannot be overlooked. “Hey, no biggie. I’m sure it was romantic slave rape. And trust me, I think Sally TOTALLY AND INFORMEDLY CONSENTED to going back to Virginia because she learned some French, so she undoubtedly was not coerced in any way!”

                      Your hill. Die on it.

                    2. “every single thread” would mean every single thread. That’s not true, but like given the lack of logical thinking you’re already exhibited thus far, why would I be surprised at a gross mischaricterization.

                      So, the point of me mentioning the homo-predator abuse and cover up, is that 1) is trolls people such as yourself, & 2) it exposes the hypocrisy in that people such as yourself condemn Catholics, and the Church (rightly so) but not the gay child molesters. I loathe to use the phrase, but “pretty telling” huh?

                      Again, Jefferson didn’t rape Hemmings when their relationship started, she was over the age of consent, and she was a free woman, who must have loved that action so much she decided to become a slave again to keep it going. Jefferson was an alpha male more than people think. Does that embarrass you?

                      So, yea, a slave (which she was in VA) cannot legally *not* consent. I agree, so he did rape her in that sense. But by that standard, every Roman male who visited a brothel was a rapist. Is every Roman man a rapist? Was Mohammed a rapist? His biography on this issue was worse then Jefferson. How far down this relatively rabbit hole you want to go?

    2. Ursuline Academy founded in 1727 continues today as a Catholic preK-12 School and claims among other firsts to be the first school in the United States to offer class to African-American slaves.

      1. Glad to hear that.

        Though I hope you got my point.

  9. It is a strange world we live in where insisting a child is raised by a man and a woman is a horrible thing and that refusing to mutilate a child’s genitals or flood their body with artificial hormones is considered to be child abuse.

    1. A progessive society is a sick and dying society. None has ever thrived in human history. Please, do not bring up Scandinavia. They live like animals.

      1. Scandinavia is hardly a shining example of socialism. They have lots of real problems in the not so far off future which cannot be addressed. Also liberals fail to mention those countries are ethno-enclaves (mostly at least up until 10 years ago). And to top is off they have exceptionally small populations compared to even other Western nations.

      2. a purely capitalist society a la the industrial revolution is the example of sick and dying, it is progressive changes that made it able to keep moving
        You forget the ‘why’ of communism, what was Marx so pissed off about
        it is the excesses of capitalism, not progressivism

  10. Many progressives want to redefine “freedom of religion” to mean “freedom of worship.” They would be fine with you worshiping on Saturday or Sunday as you wish, but thou shalt not practice thy faith outside those four walls the rest of the week. Except for the Mohammedans, they should be accommodated at pretty much every turn, and their honor killings, terrorism, and be headings of those who show cartoons of Mohammed are just quint customs.

    1. The shared belief between the terrorists and the progressives is a hatred of America. Both are our enemies.

    2. Very astute, mad

      They do believe you can bring your religious values to public life if it means being tolerant of all perversions and support massive social programs.

  11. I am an atheist to the extreme, but I am a smart atheist. I understand religion is 100 times more effective at teaching morality than the law and government. I know religious societies are more prosperous. Yes, it is a scam; pay us now, get rewarded after death. Its scam is immunized by the First Amendment. But, we are all better off if more religious, even the atheists.

    That is why I support crushing all governmental interference with religion. Government itself is a rent seeking scam by the biggest criminal enterprise in the world, the American lawyer profession. It has to be stopped and adjusted in size. The scam of religion is tiny in comparison. Give us $trillions, we will keep you safe, with 15 million common law crimes, a billion internet crimes, and government does nothing about it.

    1. DaivdBehar: *tips the fedora*

  12. The original public meaning can be inferred from a letter written by the President? That sure makes the research stage a lot easier. Here I was spending countless hours trying to understand how the public understood the words (which is a lot of people to have to survey).

    Oh how silly I feel.

    1. Well, think for a minute. Jefferson, a dyed-in-the-wool deist and general advocate of non-religion, who (always misquoted) is said to have wanted a wall of separation between church and state, a premier member of the Founding generation, as president during the implementation of the outcome of the LA Purchase, and thus interpreting the Constitution as to its meaning in this instance, is STRONG evidence for the premise in the OP toward non-interference.

    2. Well, when the President in question was one of the principal authors and delivered many contemporaneous speeches about the subject, it’s certainly a pretty good data point. Probably better than your alleged attempts to retroactively survey the Joe Sixpacks of the 18th century.

      1. So he is a good data point regarding the Establishment Clause but not one for the Free Exercise clause? Both being in the same amendment?

    3. “The original public meaning can be inferred from a letter written by the President?”

      Look at how the Supreme Court swooned over the Danbury Baptist letter.

  13. As a historical matter I wonder why the Ursulines thought their convent might be expropriated?

    The Ursulines arrived in New Orleans in 1727, by 1734 they had a new convent/school/hospital. In 1752 they moved to a new convent/school/hospital authorized by Louis XV which today is a museum.

    Ursuline Academy was founded in 1727 continues today as a Catholic preK-12 School and claims among other firsts to be the first school in the United States to offer class to African-American slaves.

    1. ” I wonder why the Ursulines thought their convent might be expropriated”

      “Papists” were not a popular group in the US for one.

      They saw what happened in the French Revolution to so were probably afraid the American revolution was similar.

  14. A letter?

    From a president?

    Conveying a “pledge?”

    Which would, using the proposed application, shield a religious organization from government interference with respect to doobie-smoking, bestiality, performing abortions, cannibalism, and virgin sacrifice?

    It appears some arguments that seem sound to religious believers — for whom “just because” is a perfectly sound argument — lose their luster in the reality-based world.

    1. “doobie-smoking, bestiality, performing abortions, cannibalism, and virgin sacrifice”

      …but enough about the Episcopalians.

      1. Exactly . . . this discussion focuses on the bigots who cloak their ugly thinking and conduct in superstition-based claims, thinking religion makes bigotry better.

        1. Smoking marijuana is bigoted?

  15. wow
    not a court case, not a law, not a constitutional clause, but a letter from the President that an orphanage may continue to run in a territory of the US

    Yeah

    that is convincing

  16. There is nothing virtuous, noble, or civically responsible for animus and enmity toward religion and religious bigotry. Religious discrimination is improper and wrong if you are ambivalent about religion or taking actions in the name of LBGTQ or other motivating factors. I am not the biggest fan of “hate speech” codes and laws but, if it has been determined that there will be hate speech codes and laws, religion, religious bigotry, and hate toward religion should not be immune to being called out as hate speech.

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