Amendment 4—What is the Relationship Between Ministers and the State Legislature
Oct 13, 2022 by David Fowler
Amendment 4 on the ballot this November would remove from Tennessee’s Constitution the prohibition on any “minister of the Gospel or priest of any denomination . . . serving in either House of the Legislature.” It may seem like voting “Yes” is a no-brainer, but it deserves more consideration than it will likely be given. It is another example of what we don’t know will, at some point, hurt us. Now is a great time to learn how the issues underneath this provision relate to socialism and transgenderism.
The provision to be removed by Amendment 4 was adjudged unconstitutional by the United States Supreme Court in a case involving a minister in Chattanooga who I knew and considered a friend, Reverend Paul McDaniel. McDaniel v. Paty, 435 U.S. 618 (1978). Thus, the amendment does not remove a currently enforced provision in our Constitution.
However, the reason given by the Court for holding the provision unconstitutional, though familiar to us, obscures more fundamental considerations we have forgotten. We would do well to remember them.
As to the history of ministerial disqualification for certain elected offices, the Supreme Court said:
Having said original intent was now irrelevant to constitutional construction by virtue of experience (let that sink in—the “living constitution!”), the Court concluded that the Tennessee provision “violates McDaniel's First Amendment right to the free exercise of his religion made applicable to the States by the Fourteenth Amendment.”
Religious liberty, I suspect, will drive the vote of those in favor of the amendment. But I offer three other considerations.
At the risk of great misunderstanding, I submit that those who think the prohibition (which goes back to the 1796 Constitution) a ridiculous restraint on religious liberty may not appreciate that the framers of Tennessee’s Constitution would have never considered its prohibition a violation of religious liberty and for a very good reason.
Our Protestant forebears believed that “religious liberty” pertained to matters of “conscience”—liberty as to matters of belief and ecclesiology vis-à-vis freedom of actions regarding civil life. For an insightful, but rather short primer in this regard, I commend Liberty of Conscience—The History of a Puritan Idea.[i]
This distinction is found in Article I, section 3 of Tennessee’s Constitution (Article XI in the 1796 Constitution). It protects religious beliefs that inform one’s conscience and ecclesiology, not civil conduct:
Moreover, among some of my Lutheran friends, the prohibition might be viewed as consistent with Luther’s understanding of the relation between the church and the state.
Luther posited that the church was strictly a spiritual body, unlike the Roman Catholic Church that was the forerunner of the modern state with its development and application of canon law to a number of issues now considered under the state’s jurisdiction. Prior to the Lutheran revolution, there were “two swords,” one wielded by the Church within its legal jurisdiction and other by the emperor and princes.
Luther’s view was revolutionary. Luther said there were two kingdoms—the church and the state—not two swords. The Church had no legal jurisdiction.
Voting against Amendment 4, even if the constitutional provision is unenforceable, would conform to the beliefs of those who hold to the two-kingdom perspective. They might want the prohibition kept in place in the event the Supreme Court discontinues its application of the religion clauses to the states.
Finally, and again at the risk of great misunderstanding, I would note that at the time Tennessee’s constitution was adopted, there was a well-understood historical distinction between fundamental or natural rights and political rights. Unfortunately, it is one we have lost.
Writing in 1864, at the height of the Civil War, Reverend Professor George P. Fisher of Yale (theologians once understood civil law and government) wrote about the distinction between natural rights and political rights. I wonder how many ministers today, especially those who preach on political issues, would be able to discuss this distinction.
Of natural rights, Fisher, quoting English statesman Edmund Burke, wrote:
The first part makes sense to us, but his observation about the “fair portion” needs some explanation.
Unlike today’s democratic socialist spirit that looks for equal results or outcomes, what Fisher meant was that “all men have equal rights; but not to equal things. He that has but five shillings in the partnership, has as good a right to it, as he that has five hundred pounds has to his large portion. But he has not a right to an equal dividend in the produce of the joint stock.”
Of political rights, however, Fisher, concurring in principle with Burke, wrote:
Today, such a statement would be heresy, but there is a logic to it. Fisher writes: “Natural rights are prior to the existence of society, in the sense that society does not confer them, but has for its function the protection of them; Political Rights are conferred by society.” (emphasis added)
Fisher explains:
I cannot elaborate further on this point but suffice it to say that if those who hold office do their work correctly, the benefits of law flow to all. Fisher’s tract on the matter found at this link, and it is well worth the read.
Those who wrote our state Constitution understood the distinction between a legalistic religious liberty and a religious liberty of conscience. They also understood the distinction between natural rights and political rights. They understood the concept of God-created offices—minister and magistrate—that have different jurisdictional responsibilities and boundaries.
All such distinctions are treated as abolished in a society like ours in which God is irrelevant to law and our understanding of offices, whether in regard to employer-employee relations, discussed last week; civil and ecclesiastical ministers; or those who govern and those who are governed.
However, those who first wrote the minister restriction into our Constitution in 1796 understood these distinctions and knew they had the authority as a state to do what they did. Too bad the United States Supreme Court either doesn’t understand these distinctions or chose to ignore or abolish them.
Why are these distinctions important today? Because the democratic spirit of today is a leveling spirit that abolishes all God-created distinctions and offices for the sake of a unity that results in uniformity. Such a deadening uniformity logically leads to socialism, same-sex “marriage,” and transgenderism.
I will vote for the amendment, but not because I deny all distinctions between the offices of ecclesiastical minister and civil magistrate or think current law violates religious liberty. Instead, I will vote for it, because (1) an ecclesiastical minister who runs for office should be able to understand the different spheres of jurisdiction given by God to the Church and to the State, and (2) voters should be able to cast a vote based on their determination that the candidate does understand and can adhere to those jurisdictional differences.
Whether any such ministers exist is, in my view, a distinction that should be drawn at the ballot box.
The deeper problem I hope I’ve called to attention is our understanding of the relationship between justification before God and civil conduct and between an established church and state; our non-recognition of God-ordained offices and jurisdictional spheres; and our failure to distinguish between God-given rights and political rights.
These are the issues presented by Amendment 4 that I think most in need of fixing for the sake of the future.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
[1] The shift from conscience posited by Luther to the legalistic religious spirit of today was fostered, at least in part, by a 20th Century combination of fundamentalism and cold orthodoxy. It brought about a corresponding change of understanding regarding matters of belief and ecclesiology vis-à-vis civil conduct. For example, a law requiring all bakers of wedding cakes to make a wedding cake for a same-sex couple is an infringement on civil conduct not religious belief (conscience). In this situation, the civil conduct with which non-discrimination laws interfere is free speech. No state law says the baker must believe the ceremony of a same-sex couples reflects the same understanding the baker has of God and creation and their vital importance to the formation of a marital relationship. No state law binds the conscience in this regard or forbids the worship of the Christian’s God.
The provision to be removed by Amendment 4 was adjudged unconstitutional by the United States Supreme Court in a case involving a minister in Chattanooga who I knew and considered a friend, Reverend Paul McDaniel. McDaniel v. Paty, 435 U.S. 618 (1978). Thus, the amendment does not remove a currently enforced provision in our Constitution.
However, the reason given by the Court for holding the provision unconstitutional, though familiar to us, obscures more fundamental considerations we have forgotten. We would do well to remember them.
The Familiar Reason—A Violation of Religious Liberty
As to the history of ministerial disqualification for certain elected offices, the Supreme Court said:
The essence of the rationale underlying the Tennessee restriction on ministers is that if elected to public office they will necessarily exercise their powers and influence to promote the interests of one sect or thwart the interests of another, thus pitting one against the others, contrary to the anti-establishment principle with its command of neutrality. . . . However widely that view may have been held in the 18th century by many, including enlightened statesmen of that day, the American experience provides no persuasive support for the fear that clergymen in public office will be less careful of anti-establishment interests or less faithful to their oaths of civil office than their unordained counterparts.” (emphasis added)
Having said original intent was now irrelevant to constitutional construction by virtue of experience (let that sink in—the “living constitution!”), the Court concluded that the Tennessee provision “violates McDaniel's First Amendment right to the free exercise of his religion made applicable to the States by the Fourteenth Amendment.”
Religious liberty, I suspect, will drive the vote of those in favor of the amendment. But I offer three other considerations.
Removing Amendment 4—A Matter of Religious Liberty? No.
At the risk of great misunderstanding, I submit that those who think the prohibition (which goes back to the 1796 Constitution) a ridiculous restraint on religious liberty may not appreciate that the framers of Tennessee’s Constitution would have never considered its prohibition a violation of religious liberty and for a very good reason.
Our Protestant forebears believed that “religious liberty” pertained to matters of “conscience”—liberty as to matters of belief and ecclesiology vis-à-vis freedom of actions regarding civil life. For an insightful, but rather short primer in this regard, I commend Liberty of Conscience—The History of a Puritan Idea.[i]
This distinction is found in Article I, section 3 of Tennessee’s Constitution (Article XI in the 1796 Constitution). It protects religious beliefs that inform one’s conscience and ecclesiology, not civil conduct:
That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience; that no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any minister against his consent; that no human authority can, in any case whatever, control or interfere with the rights of conscience; and that no preference shall ever be given, by law, to any religious establishment or mode of worship. (emphasis added)
A Different Christian Perspective
Moreover, among some of my Lutheran friends, the prohibition might be viewed as consistent with Luther’s understanding of the relation between the church and the state.
Luther posited that the church was strictly a spiritual body, unlike the Roman Catholic Church that was the forerunner of the modern state with its development and application of canon law to a number of issues now considered under the state’s jurisdiction. Prior to the Lutheran revolution, there were “two swords,” one wielded by the Church within its legal jurisdiction and other by the emperor and princes.
Luther’s view was revolutionary. Luther said there were two kingdoms—the church and the state—not two swords. The Church had no legal jurisdiction.
Voting against Amendment 4, even if the constitutional provision is unenforceable, would conform to the beliefs of those who hold to the two-kingdom perspective. They might want the prohibition kept in place in the event the Supreme Court discontinues its application of the religion clauses to the states.
Removing Amendment 4—Protecting a Natural Right? No.
Finally, and again at the risk of great misunderstanding, I would note that at the time Tennessee’s constitution was adopted, there was a well-understood historical distinction between fundamental or natural rights and political rights. Unfortunately, it is one we have lost.
Writing in 1864, at the height of the Civil War, Reverend Professor George P. Fisher of Yale (theologians once understood civil law and government) wrote about the distinction between natural rights and political rights. I wonder how many ministers today, especially those who preach on political issues, would be able to discuss this distinction.
Of natural rights, Fisher, quoting English statesman Edmund Burke, wrote:
Whatever each man can separately do, without trespassing upon others, he has a right to for himself; and he has a right to a fair portion of all which society, with all its combination of skill and force, and can do in his favor.
The first part makes sense to us, but his observation about the “fair portion” needs some explanation.
Unlike today’s democratic socialist spirit that looks for equal results or outcomes, what Fisher meant was that “all men have equal rights; but not to equal things. He that has but five shillings in the partnership, has as good a right to it, as he that has five hundred pounds has to his large portion. But he has not a right to an equal dividend in the produce of the joint stock.”
Of political rights, however, Fisher, concurring in principle with Burke, wrote:
No person on the score of Natural Rights can claim an office, or claim to be eligible to an office, or claim to take part in the selection of those who shall hold office in the state. Whatever Natural Rights are, they are not a title to a participation in the government. (emphasis added)
Today, such a statement would be heresy, but there is a logic to it. Fisher writes: “Natural rights are prior to the existence of society, in the sense that society does not confer them, but has for its function the protection of them; Political Rights are conferred by society.” (emphasis added)
Fisher explains:
[All people] “have an equal right to the advantages for which society is created. . . . [T]he benefits are intended to flow out impartially to all. If the state is constituted in such a way that a part of the community are excluded from these benefits, there is a violation of natural rights. . . . It is no violation of Natural Rights when political power is lodged with a few, or with one man, provided the great ends of government are accomplished.
I cannot elaborate further on this point but suffice it to say that if those who hold office do their work correctly, the benefits of law flow to all. Fisher’s tract on the matter found at this link, and it is well worth the read.
Application of the Foregoing
Those who wrote our state Constitution understood the distinction between a legalistic religious liberty and a religious liberty of conscience. They also understood the distinction between natural rights and political rights. They understood the concept of God-created offices—minister and magistrate—that have different jurisdictional responsibilities and boundaries.
All such distinctions are treated as abolished in a society like ours in which God is irrelevant to law and our understanding of offices, whether in regard to employer-employee relations, discussed last week; civil and ecclesiastical ministers; or those who govern and those who are governed.
However, those who first wrote the minister restriction into our Constitution in 1796 understood these distinctions and knew they had the authority as a state to do what they did. Too bad the United States Supreme Court either doesn’t understand these distinctions or chose to ignore or abolish them.
Why are these distinctions important today? Because the democratic spirit of today is a leveling spirit that abolishes all God-created distinctions and offices for the sake of a unity that results in uniformity. Such a deadening uniformity logically leads to socialism, same-sex “marriage,” and transgenderism.
How I Will Vote
I will vote for the amendment, but not because I deny all distinctions between the offices of ecclesiastical minister and civil magistrate or think current law violates religious liberty. Instead, I will vote for it, because (1) an ecclesiastical minister who runs for office should be able to understand the different spheres of jurisdiction given by God to the Church and to the State, and (2) voters should be able to cast a vote based on their determination that the candidate does understand and can adhere to those jurisdictional differences.
Whether any such ministers exist is, in my view, a distinction that should be drawn at the ballot box.
The deeper problem I hope I’ve called to attention is our understanding of the relationship between justification before God and civil conduct and between an established church and state; our non-recognition of God-ordained offices and jurisdictional spheres; and our failure to distinguish between God-given rights and political rights.
These are the issues presented by Amendment 4 that I think most in need of fixing for the sake of the future.
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.
[1] The shift from conscience posited by Luther to the legalistic religious spirit of today was fostered, at least in part, by a 20th Century combination of fundamentalism and cold orthodoxy. It brought about a corresponding change of understanding regarding matters of belief and ecclesiology vis-à-vis civil conduct. For example, a law requiring all bakers of wedding cakes to make a wedding cake for a same-sex couple is an infringement on civil conduct not religious belief (conscience). In this situation, the civil conduct with which non-discrimination laws interfere is free speech. No state law says the baker must believe the ceremony of a same-sex couples reflects the same understanding the baker has of God and creation and their vital importance to the formation of a marital relationship. No state law binds the conscience in this regard or forbids the worship of the Christian’s God.
