Neutrality and Religious Freedom A Comment on the Northwest Ordinance of 1787 Martin E. Marty IT WAS a very good year, 1787 was. Those who today toast the national founders and salute their achievements have busy elbows. Almost lost in the observance of the Constitutional Bicentennial is recollection of the Northwest Ordinance of 1787, which merits notice on its anniversary, July 13. The Northwest Territory was the huge chunk of real estate between the Mississippi and Ohio rivers and the Great Lakes. This territory became the burden and the opportunity of the Continental Congress acting under the Articles of Confederation. This Congress and these articles generally deserve their low reputation. Yet the ordinance almost by itself made the delegates. years together worthwhile. Weekly periodicals are not intended to provide civics lessons. Religious journals are not usually effective instruments for teaching political history.. Yet today's American civil and religious lives are both more free and more complex thanks to New York's Rufus King and his co-workers at the Continental Congress. The ordinance set precedence for the way that states have been admitted to the Union and set example by excluding slavery in this first territory. Yet it is for its religious-freedom clause that religionists and civic- minded people should remember it. "No person, demeaning himself in a peaceable and orderly manner," the ordinance begins. "shall ever be molested on account of his mode of worship, or religious sentiments, in the said territory." Yes. that Article I was written well before Amendment I to the U. S. Constitution, the amendment that helped perpetuate "free exercise" of religion. The article sounds negative and crab- by, but its intent was wholly positive and promissory. Until that time, nations, colonies, states and territories in the Western world had rarely taken pains to say "Begone!" to civil authorities who might threaten religious practices that minorities alone might cherish, or forms of worship that majorities might find unattractive. The same men of 1787 who were so farsighted concerning "free exercise" were men of their time in respect to "establishment of religion," which the First Amendment addressed. The example and gift they provided were, as I said above, complex, and had an ambiguous relationship. For Article III of the ordinance followed through with the earnest and well-intended phrase, "Religion, morality and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." Pow! Pounce! There you have it, forever. The founders wanted the government to encourage (that is, make pro- vision for) religion through schools, which must mean public schools. There you have it, say those inclined to privilege religion and particular religious traditions (e.g., this year, the" Judeo-Christian" invention) by law and at taxpayers' expense. The founders favored such privilege and, let us presume, taxation to support it. Let nonreligion be disfavored, along with immorality and ignorance, in the Northwest Territory' 'forever." Forever is a long time, as Ohio, a key state in the Northwest Territory, soon learned. Those who think the ordinance was a charter for everything from school prayer amendments to pro-Judeo-Christian riders on education bills to the haunting and hounding of "secular-humanist" textbook writers might do well to follow the career of this mild form of establishment in Ohio. Recall, too, that early 19th-century Ohio was a religiously uncomplicated place compared to California of today or, for that mat- ter, Ohio here and now. In due course, the Buckeyes provided for "common religion for the common school," This common religion was a blend of mild Enlightenment, milder King James Biblicism, and mildest Protestant ethos that passed for neutrality until Catholics, Jews, humanists, Protestant sectarians and "other" religionists came along to show how particular, exclusive and prejudicing it was. In 1869-70 the Cincinnati board of education responded to complaints by the nonprivileged, who were tired of having someone else's faith imposed on their children. the details of this board's decisions and of subsequent court activity are too complex to be revisited here. Suffice it to say that when Archbishop John B. Purcell pointed to the necessarily discriminatory aspects of such "common religion in the common schools," he ensured the kind of holy war that erupts in school districts whenever such privilege is observed. CONCERNED Cincinnatians decided to act. They looked, for example, at the corner of Plum and Eighth Streets. There were Temple B'nai Yeshurun, Purcell's Catholic cathedral, a "new and radical Unitarian church," and the city building. The Presbyterian church, the most acceptable, stood next to the Unitarian citadel. Cincinnati and America were becoming more and more like Eighth and Plum than, say, like Plymouth in 1620 or the nine of the 13 original colonies which at some time or other had established religion. When a board of education member proposed that no longer should "religious instruction and the reading of religious books, including the Holy Bible," be permitted, Cincinnati shook. At least, its pulpits and the fists in them did. Curiously, a descendant of Rufus King named Rufus King led the antiboard charge, while defending the board was a descendant of the great colonial theologian Jonathan Edwards. The descendant leaned Unitarianward. The Cincinnati Superior Court sounded like some aggressive defenders of mild establishment today. It held that Christianity was "the prevailing religion" and should be taught in the common schools. Judge Alphonso Taft--who more than leaned on the pillars of the Unitarians, he was one-dissented. He claimed that the "government is neutral. " Taft and company lost the battle and the day, but were not "forever" defeated. The Ohio Supreme Court in 1873 sided with Taft and overturned the Cincinnati court ruling. In a school prayer decision a century later, the United States Supreme Court cited Taft on "neutrality." Agreed, "neutrality" is never "neutral," and the Ohio case does not "forever" settle the issue. The Ohio out- come was merely a Distant Early Warning signal for other states and school boards and remains one today, when people wearying of pluralism or seeking privilege would go a different course. Yet it shows how the religious freedom assured by the Northwest Ordinance is a delicate matter. Civility is gossamer thin. It demands and deserves careful attention from local boards of education, ecclesiastical assemblies and wherever citizens would assure that this republic, "neutral" about religion, be also, as a later court would urge, 'benevolent" or "wholesome" about that neutrality. Read the Northwest Ordinance of 1787 Copyright 1987 Christian Century Foundation. Reproduced by permission from the July 1-8, 1987 issue of Christian Century. pp 580-581. Subscriptions: $42/yr (36 issues), from P.O. Box 378, Mt. Morris IL 61054. !-800-208-4097.