NEWDOW et al v. ROBERTS et al

Filing 68

NOTICE Plaintiffs' Notice of Filing Additional Appendixes to First Amended Complaint by MICHAEL NEWDOW re 66 MOTION to Amend/Correct 1 Complaint,,,, (Attachments: # 1 Appendix Doc 66-3 First Amend Complaint - Appendix A - Pie Charts, # 2 Appendix Doc 66-3 First Amend Complaint - Appendix B - Inaugural Clergy 1937 - 2009, # 3 Appendix Doc 66-3 First Amend Complaint - Appendix C - Anti-Catholicism, # 4 Appendix Doc 66-3 First Amend Complaint - Appendix D - US Sup Ct Citations to Madison's Memorial & Remonstrance, # 5 Appendix Doc 66-3 First Amend Complaint - Appendix E - Congressional Record January 20, 2009, # 6 Appendix Doc 66-3 First Amend Complaint - Appendix F - Declarations of Remaining Original Individual Plaintiffs)(Ritter, Robert)

APPENDIX C Anti-Catholicism in Early America Those who left England to settle America arrived with a strong anti-Catholic bias. As soon as Jamestown, the first English-speaking permanent settlement in the New World, was established, for instance, it was decreed that "we should be loath that any Person should be permitted to pass that we suspected to affect the Superstitions of the Church of Rome."1 Moreover, twice each day, the captain of the guard led those settlers in a prayer that specifically referred to Catholics as "the scum & dregs of the earth."2 The Pilgrims and Puritans who came to Massachusetts also despised Catholics. Although they were escaping their own religious oppression when they began their westward migration in 1620, they had no compunction about persecuting Catholics in the land they settled.3 In fact, the land grant under which they came to the North American shores required that "all persons who shod pass in any voyage to the said country shod take the Oath of Supremacy, which was meant to exclude Papists from settling in America."4 Not long after, banishment was imposed upon anyone "ordayned by ye authoritie of the pope."5 Should such a person, once banished, return, "he shall vppon lawfull triall & conviction, be put to death."6 Even Roger Williams, the staunchest defender of religious liberty among the very early colonists (and who employed the famous "wall of separation" metaphor more than 150 years

Second Charter of Virginia, May 23, 1609. Commager: Documents, p. 12. Tracts and Other Papers, Relating Principally to the Origin, Settlement, and Progress of the Colonies in North America, from the Discovery of the Country to the Year 1776. Collected by Peter Force (New York: Peter Smith; 1947). Vol. III, part II, page 67. 3 The "Puritans" received that moniker because they "wanted to `purify' the church of all traces of Roman Catholicism." Gillis, Chester. Roman Catholicism in America. (New York: Columbia University Press; 1999), p. 52. 4 Documents Relative to the Colonial History of the State of New York; Procured in Holland, England and France. E. B. O'Callaghan, M.D. (ed.) (Albany, NY: Weed Parsons and Company; 1856), Vol. VII, page 361. 5 "Anti-Priest Law, May 26, 1647," in Shurtleff, Nathaniel B. (ed.). Records of the governor and Company of the Massachusetts Bay in New England. (Boston: William White; 1854), vol. III, p. 112 (as cited in Ellis, John Tracy. Documents of American Catholic History. (Milwaukee: The Bruce Publishing Company; 1962) (hereinafter, "Ellis: Documents"), pp. 111-12). 6 Id.
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before Thomas Jefferson7), evidenced anti-Catholic bias. Writing to the governor of Connecticut in 1660, Williams spoke of "the common enemy, the Romish wolf,"8 and warned "that that whore will shortly appear so extremely loathsome, in her drunkenness, bestialities, &c., that her bewitched paramours will tear her flesh, and burn her with fire unquenchable."9 William Penn is another early colonist famous for bringing religious freedom to the nation. Yet, in his "select works," one can read an entire 37-page treatise entitled "A Seasonable Caveat Against Popery."10 There he speaks of Catholicism's "stupid superstition, and brutish zeal,"11 notes that "[t]hat religion hath proved the greatest thief in nature,"12 attributes to Papists "such inhuman and barbarous inventions and cruelties, as no age could ever parallel,"13 and concludes by claiming that "to embrace that old, bloody, apostatized church again, with all her slavish, as well as ridiculous superstition, is a crime so offensive to God, and intolerable to men, as the time hastens."14 Consistent with this view, in 1679 (when "Penn's society was shot through with anti-Catholic prejudice"15), he created a "test" for citizens to "secure your selves from Papists."16 Therein it was required to state, "I do firmly believe, that the Present Communion of the Roman-Catholic Church is both Superstitious and Idolatrous."17 Although such official anti-Catholicism was temporarily suspended, it soon returned, and Catholics "were barred from holding office after 1705."18 That restriction lasted three quarters of a century.19

Hall, Timothy L. Separating Church and State: Roger Williams and Religious Liberty. (Urbana, IL: University of Illinois Press; 1998), pp. 82-83. 8 Publications of the Narragansett Club, Volume 6: Letters of Roger Williams, 1632-1682. (Providence, RI: Narragansett Club; 1874), p. 309. 9 Id., at 311. 10 Penn, William. The Select Works of William Penn in Five Volumes (Third Edition). (London: James Phillips; 1782), Vol. III, pp. 53-89. This treatise is incongruently situated after "The Great Case of Liberty of Conscience." 11 Id., at 56. 12 Id., at 83. 13 Id., at 88. 14 Id., at 88-89. 15 The Political Writings of William Penn. Introduction by Murphy AR. (Indianapolis: Liberty Fund; 2002) p. xxii. 16 Id., p. 133. 17 Id., pp. 133-134. 18 Ellis: Catholics, p. 373. 19 Although Catholics regained the right to hold some public offices in 1776, Ellis: Catholics, p. 372, they remained excluded from the legislature for another ten years. Pyle, Ralph E. and Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 2 of 15

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For Catholics, Maryland promised to become the locale where they would finally obtain religious freedom and respect. This is because it was founded by the Calverts, the only Catholics to secure a royal charter. The land covered by that charter was actually part of the original grant made to the Virginia Company, but the Virginians were strictly Protestant, and not particularly disposed to share their property with the Papists, In fact, regarding the new settlers, the Virginia Council wrote that, "Among the many blessings and favors for which we are bound to bless God ... there is none whereby it hath been made more happy than ... that no papists have been suffered to settle their abode amongst us."20 He then moved on to Maryland, where the famous "Act of Religious Toleration" was promulgated in 1649.21 Yet, even in that setting, the tide of antiCatholicism could not be suppressed. A mere five years after the Act, the Protestant majority passed a statute stating that "none who profess and Exercise the Popish Religion Commonly known by the Name of the Roman Catholic Religion can be protected in this Province by the Lawes of England."22 The result was that "the Catholics of Maryland were cut off from all participation in public life, to say nothing of the enactments against their religious services and the law that forbade them to have schools for Catholic instruction of their children."23 A similar sequence of events transpired in New York. Although a Catholic governor was appointed in 1682, another policy of official anti-Catholicism took hold shortly thereafter.24 When James II's reign ended in 1688,25 "[n]o issue aroused the suspicions and ignited the passions ... more than the fear of Roman Catholicism."26 Accordingly, when a Dutch minister commented in 1741 on the remarkable diversity of religion that had developed (in what was previously New Amsterdam), his words were, "there is here perfect freedom of conscience for

Davidson, James D. The Origins of Religious Stratification in Colonial America. 42 Journal for the Scientific Study of Religion 57 (2003), p. 67. 20 Torcaso v. Watkins, 367 U.S. 488, 491 n.4 (1961). 21 Ellis: Documents, pp. 95-98. 22 Act of October 20, 1654, in Browne, William Hand (ed.). Archives of Maryland, Proceedings and Acts of the General Assembly of Maryland, January 1637/38-September 1664. (Baltimore: Maryland Historical Society; 1883), vol. I, pp. 340-41 (as provided in Ellis: Documents, p. 114). 23 Ellis: American Catholicism, p. 27. 24 Ellis: Documents, p. 116. 25 King James II was England's last Catholic monarch. 26 Balmer, Randall. Traitors and Papists: The Religions Dimensions of Leisler's Rebellion. 70 New York History 341 (October, 1989), p. 344. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 3 of 15

all, except Papists."27 In fact, in New York there "followed all the familiar English penal legislation against Catholics, a series of laws from which they were not entirely freed until 1806."28 New York was not alone in granting liberty of conscience to all "except Papists." The Massachusetts Charter of 1691 guaranteed "a liberty of Conscience ... in the Worshipp [sic] of God to all Christians (Except Papists)."29 New Hampshire's legislature was directed "to permit liberty of conscience to all persons except Papists.30 Similarly, Georgia's Charter of 1732 exhibited an explicit "disregard" for Catholic rights: "[A]ll persons Inhabiting ... our ... Province ... Except Papists shall have a Free Exercise of their Religion."31 It was during this era that John Foxe's Acts and Monuments appeared. Otherwise known as the Book of Martyrs, this immensely popular book was second only to the Bible in the homes of the early colonists.32 In it were detailed many of the atrocities committed in the name of religion over the two centuries that preceded its writing. However, "[a]ll the fiendish acts there narrated were the work of the Church of Rome, for no hint was given of any other side of the story. No wonder that among the masses, aside from any religious sentiment or conviction, there grew up a horror and detestation of the pope and the Romish Church."33 In other words, for each person who left England to settle in the New World, "it was a part of his creed to hate the pope."34

Klein, Milton M. Shaping the American Tradition: The Microcosm of Colonial New York. 59 New York History 173 (April, 1978), p. 190 (emphasis added). 28 Ellis: American Catholicism, p. 31. 29 Poore, Benjamin Perley. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States. 2nd. Ed. (Washington: Government Printing Office; 1878), Part I, p. 950. (emphasis added). 30 New Hampshire Provincial Papers, II, 25 (1689), cited in Kinney, CB. Church & State: The Struggle for Separation in New Hampshire - 1630-1900, (Columbia University, New York; 1955, at 35(emphasis added). 31 Charter of Georgia (1732). Accessed on June 11, 2006 at http://www.yale.edu/lawweb/avalon/states/ga01.htm (emphasis added). 32 "[T]he common people had almost no reading matter except the Bible and Foxe's `Book of Martyrs." Campbell, Douglas. The Puritan in Holland, England, and America: An Introduction to American History. (New York: Harper & Brothers; 1893), Volume 1, p. 442. 33 Id., at 443. 34 Campbell, Douglas. The Puritan in Holland, England, and America: An Introduction to American History. (New York: Harper & Brothers; 1893), Volume 1, p. 444. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 4 of 15

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This view was not just that of an unenlightened lay public. Institutions of higher learning, even when striving to cultivate respect for religious diversity and toleration, perpetuated antiCatholic prejudice. A prime illustration of this can be seen in the founding of Kings College (now Columbia University) in New York. Key in that endeavor was William Livingston, a highly respected statesman who was later to assume such roles as governor of New Jersey and representative of that state at the Constitutional Convention. His vision of this institution was presented to New York society in a series of essays entitled Remarks on our Intended COLLEGE.35 In those Remarks, he spoke of the need to respect religious diversity, so as to avoid "a Nursery of Animosity, Dissention and Disorder."36 Simultaneously, however, he noted that there had been (during the reign of King James II in England) an effort "to poison the Nation, by filling the Universities with popish and popishly-affected Tutors ... [which might have] introduc'd and establish'd, the sanguinary and antichristian Church of Rome."37 Thus, although the new university would "be founded on the Plan of a general Toleration,"38 it would only "admit Persons of all protestant Denominations."39 At Harvard University, anti-Catholic bias was also explicitly espoused, courtesy of the esteemed Chief Justice of the Massachusetts Supreme Court, Paul Dudley: In his last will [Dudley] earmarked the sum of one hundred pounds sterling for an annual lecture or sermon to the students of his American alma mater [i.e., Harvard], and designated four topics to be in rotation the subject of the discourses. In the third of the four topics sentiments of Dudley towards Catholics and their creed are etched with uncommon exactitude, for this address was for `detecting, convicting and exposing the idolatry, errors and superstitions of the Romish church.'"40

These Remarks were published without the author's name in The Independent Reflector in early 1753. They are assumed to have been written by Livingston. See McCaughey, Robert A. Stand, Columbia: A History of Columbia University in the City of New York, 1754-2004. (New York: Columbia University Press; 2003) (hereafter "McCaughey: Stand, Columbia"), p. 16. 36 The Independent Reflector, Number XVIII (March 29, 1753), p. 71. 37 The Independent Reflector, Number XVII (March 22, 1753), p. 70. 38 The Independent Reflector, Number XVIII (March 29, 1753), p. 74. 39 Id., p. 71 (emphasis added). 40 Metzger, Charles H. Catholics and the American Revolution: A Study in Religious Climate. (Chicago: Loyola University Press; 1962) (hereafter "Metzger: Catholics"), p. 7. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 5 of 15

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The lectureship that resulted from this endowment has been highly regarded since it inception, and it exists to this day as "the oldest endowed lecture at Harvard University."41 Its "lecture against popery" was singled out by none other than John Adams as a "fine institution ... [that] was certainly intended by that wise and excellent man, as an eternal memento of the wisdom and goodness of the very principles that settled America."42 It was not until 1911 that the authorities at Harvard saw fit to eliminate the blatant anti-Catholicism from the Dudleian lectureship's prescribed topics.43 Anti-Catholicism persisted well into (and beyond) the Founding Era. Recalling, again, that "it was Protestants who colonized English America,"44 and that "[m]any of them ... brought with them the post-Reformation Englishman's ingrained, inherited hatred of Catholicism,"45 it should be appreciated that this hatred did not die out during our nation's formation. On the contrary, the sectarian divide between these two Christian belief systems continued in full force. The general adverse view of the Protestant colonists towards Catholics is illustrated in an essay appearing on the front page of The New York Mercury in 1754. At that time, the (Catholic) French settlers were advancing eastward from their settlements along the Mississippi River. Summarizing "the Present State of this Continent ... with Regard to our neighboring Enemies the French,"46 it was noted that: Their national Religion is POPERY ­ an impious, an absurd, persecuting, blood feeding Religion; a Religion as disgraceful to human Understandings, as it is injurious to the sacred Ties of social Benevolence. ... It is a Religion chiefly calculated to support the tyrannical Power, and the insatiable Avarice of their Clergy,

Accessed at http://www.hds.harvard.edu/library/bms/bms00523.html on April 15, 2007. Adams, Charles Francis. The works of John Adams, second president of the United States : with a life of the author, notes and illustrations. (Boston: Charles C. Little and James Brown; 1850) (hereafter "Adams: Works"), Vol. 3 (of 10) at 454. 43 Introductory remarks by William A. Graham, Dean of the Faculty of Divinity, at the 2005 Dudleian lecture, accessed on April 15, 2007 at http://www.hds.harvard.edu/news/events_online/dudleian_2005.html. 44 Leckie R. American and Catholic. (Garden City, NY: Doubleday & Company; 1970) (hereafter "Leckie"), p. 21. 45 Id. The same statement is made by the National Archives Publications and Records Commission (NHPRC): ""Much of the fear and hatred of Catholics in England during this time found its way across the Atlantic." Accessed on February 6, 2008 at http://www.archives.gov/nhprc/annotation/march-2002/religion-founding-fathers.html. 46 The New York Mercury, Monday, September 23, 1754, p. 1.
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and as opposite to true Christianity, as any one Thing can be opposite to another. ... POPERY is the great Friend to arbitrary Government, which is that of France. With very few Exceptions it may be said, That Papists are the most ignorant, slavish Herd of Bigots.47 The essay continued, noting that, "We, My Countrymen, are the Sons of noble Freedom, born under a Constitution which secures to every Protestant, the sacred, the invaluable Privilege of choosing and enjoying his own religious Worship, his Civil Liberty and Property ..."48 This was the milieu in which Protestant England battled Catholic France in the Seven Years War in the mid-18th century.49 This conflict was, in essence, the first World War,50 with the North American component known as "The French and Indian War." To the colonists, this war "became ... a crusade against French papists,"51 which set the religious stage for the colonists to repeatedly note their Protestantism in the build-up to the Revolutionary War a decade later. From the 1765 Resolutions of the Stamp Act Congress (wherein the colonists were deemed to be "inviolably attached to the present happy establishment of the Protestant succession"52) to the 1774 Articles of Association (signed by George Washington and John Adams, among others, in which "the Protestant colonies" stated their concerns about the "wicked ministry" being established in Canada53), to the Declaration of the Causes and Necessity of Taking Up Arms formulated a year later (describing Quebec's Catholic government as "a despotism dangerous to our very existence"54), to the Declaration of Independence, itself (where

Id. Id. (emphasis added). 49 Although there were numerous other combatants, "[t]he most important link between the wars in Europe and North America (and for that matter in Asia and Africa) was the conflict between Great Britain and France." Dull, Jonathan R. The French Navy and the Seven Years' War. (Lincoln, Nebraska: University of Nebraska Press; 2005), p. xi. 50 In addition to the warfare in North America, battles between the two sides took place in Europe, Africa, India and the Caribbean. Id. 51 Metzger: Catholics, p. 5-6. 52 Accessed at http://www.yale.edu/lawweb/avalon/resolu65.htm) on April 13, 2007. (Emphasis added.) 53 Accessed at http://www.yale.edu/lawweb/avalon/contcong/10-20-74.htm) on April 13, 2007. (Emphasis added.) 54 Commager: Documents, p. 93.
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King George III's support of Catholicism in neighboring Canada was decried55), the nonCatholic nature of the colonies was specifically highlighted. Even in the state constitutions could the favored status of Protestantism be explicitly found. In 1776, for example, full rights of citizenship were granted only to Protestants in the new constitutions of both North Carolina ("no person, who shall deny ... the truth of the Protestant religion ... shall be capable of holding any office or place of trust or profit in the civil department within this State"56) and New Jersey (limiting civil rights to "Protestant inhabitant[s]"57). When Georgia created its constitution a year later, its representatives were restricted to those "of the Protestent [sic] religion."58 In the 1778 constitution of South Carolina, the declaration was made that "[t]he Christian Protestant religion shall be deemed, and is hereby constituted and declared to be, the established religion of this State."59 This official favoritism for Protestantism led to anti-Catholicism being taught in the schools, where The New England Primer, first published in around 1690,60 was used continuously for more than 150 years.61 Contained in the Primer was a popular depiction of John Rogers, a Protestant burned at the stake during (the Catholic) Queen Mary's reign. "The popularity of the picture lay in the hatred of the general run of people in New England for the Catholics."62 Along with the picture was a poem that Rogers wrote. Recalling that "[i]n New

The passage of the Quebec Act ­ placing the "arbitrary Government" and the "absolute Rule" of the papal system "in a neighbouring Province" ­ was one of the "Injuries and Usurpations" of King George III listed in the Declaration of Independence. Interestingly, those who contend that the references to a deity in the Declaration of Independence demonstrate that our nation was founded on belief in God never seem to argue that the Declaration's rebuke of Catholicism demonstrates that our nation was founded on Protestantism. See also at page 11 et seq, infra. 56 North Carolina Constitution of 1776, Article XXXII, accessed at http://www.yale.edu/lawweb/avalon/states/nc07.htm. Emphasis added. 57 New Jersey Constitution of 1776, Article XIX, accessed on June 11, 2006 at http://www.yale.edu/lawweb/avalon/states/nj15.htm. Emphasis added. 58 Georgia Constitution of 1777, Article VI, accessed on June 11, 2006 at http://www.yale.edu/lawweb/avalon/states/ga02.htm. Emphasis added. 59 South Carolina Constitution of 1778, Article XXXVIII accessed on June 11, 2006 at http://www.yale.edu/lawweb/avalon/states/sc02.htm. Emphasis added. 60 Ford, Paul Leicester. The New-England Primer: A History of its Origin and Development. (New York: Dodd, Mead and Company; 1897), p. 16. 61 Id., p. 19. 62 Carpenter, Charles. History of American Schoolbooks. (Philadelphia: University of Pennsylvania Press; 1964), p. 30. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 8 of 15

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England particularly, education was the vehicle for the indoctrination of Puritan Morality,"63 it is noteworthy that the poem includes the verse: Abhor that arrant whore of Rome, And all her blasphemies, And drink not of her cursed cup; Obey not her decrees.64 So great was the acceptance of anti-Catholicism that respected statesmen harbored no compunction about publicly denigrating the "papists." John Adams, for instance, took pride in the fact that, in Massachusetts, "a Roman Catholic ... i[s] as rare as a comet or an earthquake,"65 and wrote that "Romish policy ... [entails] reducing ... minds to a state of sordid ignorance and staring timidity. ... Thus was human nature chained fast for ages in a cruel, shameful, and deplorable servitude."66 Accordingly, he took pride in the fact that, After all, no one would want to live among people devoted to "the man of sin, the whore of Babylon, the mystery of iniquity, [and] a great and detestable system of fraud, violence, and usurpation."67 To Adams, Catholic beliefs were "nonsense and delusion"68 and "dangerous in society."69 "[F]rom a pope down to priests and friars and confessors, [Catholics were] necessarily and essentially a sordid, stupid, and wretched herd."70 Another pivotal revolutionary patriot was Adams' cousin, Samuel Adams. Referenced as the "Patriarch of Liberty"71 and the "Father of the American Revolution,"72 Samuel Adams was a leader of the Boston Tea Party, and served in numerous official roles, including delegate to the

Frank, John P. and Munro, Robert F. The Original Understanding of "Equal Protection of the Laws." 50 Columbia L. Rev. 131, 154 (1950). 64 New England Primer, or, An easy and pleasant guide to the art of reading: Adorned with cuts; to which is added, the Catechism. (Boston: Massachusetts Sabbath School Society; 1843) p. 25. 65 Id., at 456. 66 Adams, John, Dissertation on the Canon and the Feudal Law, in Adams: Works, Vol. 3, pp. 449-50. 67 Id., at 453. 68 Id. 69 Id. 70 Id. 71 Letter of Thomas Jefferson to Samuel Adams, March 29, 1801, accessed at http://memory.loc.gov/cgi-bin/query/r?ammem/mtj:@field(DOCID+@lit(tj090124)) on April 13, 2007. 72 Puls, Mark. Samuel Adams: Father of the American Revolution. (New York: Palgrave Macmillan, 2006). Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 9 of 15

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Continental Congress, President of the Massachusetts State Senate, and Massachusetts governor. Additionally, he signed both the Declaration of Independence and the Articles of Confederation, and played a primary role in protesting against the Stamp Act. In view of that resume, his 1768 statement that "much more is to be dreaded from the growth of popery in America, than from the Stamp Act or any other acts destructive of civil rights"73 attests to the depth of antipathy he held towards the "Romish" religion. The Adamses were hardly alone in these feelings. Other framers, including those generally regarded as the most noble, forthright, and dedicated to religious liberty, expressed unabashed anti-Catholicism as well. Writing to John Adams, Thomas Jefferson equated "Jesuitism" with "bigotry" as he characterized the restoration of the Jesuits as "a retrograde step from light towards darkness."74 "In the Papal System," said James Madison, could be found "the worst of Govt."75 William Livingston, the colonist previously mentioned in regard to the founding of Kings College, warned of "the sanguinary and antichristian Church of Rome."76 Isaac Backus, a Baptist minister who was a fervid religious freedom advocate and a member of the Massachusetts ratifying convention, spoke of "Popery" as a "tyrannical way of worship."77 In his extraordinarily popular pamphlet, Common Sense (1776), Thomas Paine used the ultimate insult in his effort to rally others to condemn England's King George III: "Monarchy, in every instance, is the Popery of Government."78 Even Benjamin Franklin, while attempting to muster support for a militia, wrote of the dangers from "a bigotted Popish King."79 The historical record concerning Supreme Court's first Chief Justice, John Jay, also has relevance. Recalling that it was Jay who objected to opening the First Continental Congress with prayer (out of concern for those whose religious sentiments might not fully comport with those McAvoy, Thomas T. A History of the Catholic Church in the United States, (Notre Dame: London; 1969), p. 387. 74 Letter of Thomas Jefferson to John Adams (August 1, 1816), in Adams: Works, Vol. 10 (of 10), at 223. 75 Letter of James Madison to Rev. Jasper Adams (1832), as provided in Padover: Complete Madison, p. 311. 76 Remarks on Our Intended College, Independent Reflector, New York (March 22, 1753). 77 Commentary from the Massachusetts State Ratifying Convention on February 4, 1788. Elliot: II: 149. 78 Paine, Thomas. Common Sense. (Philadelphia: Norwich; 1776), p. 17. 79 Franklin Benjamin. Plain Truth on the Present State of the City of Philadelphia. (1747), accessed on April 8, 2007 at http://franklinpapers.org/franklin/framedVolumes.jsp?vol=3&page=180a. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 10 of 15
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of the given minister80), the fact that "Jay was widely known for his suspicion of all things Catholic"81 is striking. Thus, with "fierce attacks on the Catholic Church,"82 he "carried his suspicion of Catholicism into the sessions of the state convention which drafted the New York Constitution of 1777."83 There, he attempted to have the right to the free exercise of religion open to all. All, that is, "except the professors of the religion of the Church of Rome."84 According to Jay, those individuals: ought not to hold lands in, or be admitted to a participation of the civil rights enjoyed by the members of this State, until such time as the said professors shall appear in the Supreme Court of the State, and there most solemnly swear that they verily believe in their conscience that no pope, priest, or foreign authority on earth has power to absolve the subjects of this State from their allegiance to the same. And further, that they renounce, and believe to be false and wicked, the dangerous and damnable doctrine that the pope, or any other earthly authority, has power to absolve men from sins described in, and prohibited by, the Holy Gospel of Jesus Christ; and, particularly, that no pope, priest, or foreign authority on earth has power to absolve them from the obligation of this oath.85 Although this explicitly anti-Catholic passage was rejected, Jay was nevertheless successful in infusing the document with his preferred religious discrimination when he "was able to persuade his colleagues to require naturalized persons to renounce `all allegiance' to `every foreign king, prince potentate, and state, in all matters, ecclesiastical as well as civil.'"86 This pervasive anti-Catholicism led to a profound fury when England passed its Act for making effectual Provision for the Government of the Province of Quebec, in North America. Otherwise known as the Quebec Act, this legislation resulted in "establishing an absolute government and the Roman Catholic religion, throughout those vast regions that border on the

1 Journals of the Continental Congress 26 (September 6, 1774). Morris, Richard B. The Peacemakers: The Great Powers and American Independence. (New York: Harper & Row; 1965) (hereafter "Morris: Peacemakers"), p. 298 82 Ellis: Catholics, p. 405. 83 Morris: Peacemakers, p. 298. 84 Flanders, Henry. The Lives and Times of the Chief Justices of the Supreme Court of the United States. (Philadelphia: J.B. Lippincott & Co.; 1874), Volume I of II, p. 212 (emphasis added). 85 Id. 86 Morris: Peacemakers, p. 298.
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westerly and northerly boundaries of the free, Protestant, English settlements."87 At least in terms of dealing with colonial passions, this was not a wise move on the part of the British, since "Americans regarded its provisions for religious toleration to Catholics ... as `intolerable.'"88 Thus, for example, in the Suffolk Resolves it was noted: That the late act of parliament for establishing the Roman Catholic religion and the French laws in that extensive country, now called Canada, is dangerous in an extreme degree to the Protestant religion and to the civil rights and liberties of all America; and, therefore, as men and Protestant Christians, we are indispensubly obliged to take all proper measures for our security.89 Similarly, in the Declaration and Resolves of the First Continental Congress, it was argued that Britain, by "establishing the Roman Catholic Religion in the province of Quebec ... erect[ed] a tyranny there, to the great danger, from so great a dissimilarity of Religion, law and government, of the neighbouring British colonies."90 This was obviously of great concern to a people who, in what has been "considered as the commencement of the American Union,"91 referred to themselves as "the free Protestant colonies."92 John Adams echoed these sentiments, writing that the act was "dangerous to the interests of the Protestant religion and of these Colonies, and ought to be repealed."93 In an attempt to effectuate that repeal, the Continental Congress sought the support of those from whom the colonists' anti-Catholicism was spawned,94 i.e., the citizenry back in the British Isles. Fearful

Webster, Noah. An American selection of lessons in reading and speaking. (Philadelphia: Young and McCulloch; 1787), p. 243 (emphasis added). The Quebec Act was passed on June 22, 1774. Commager: Documents, p. 74. 88 Commager: Documents, p. 82. 89 The Suffolk Resolves were written in Massachusetts on September 9, 1774. Accessed at http://www.nps.gov/mima/forteachers/upload/The%20Suffolk%20Resolves.pdf on April 17, 2007 (emphases added). 90 Commager: Documents, p. 84. The Declaration and Resolves were written October 14, 1774. Id., at 82. 91 Id., at 84-85. 92 Id., at 85, Report of the "Association," dated October 20, 1774. 93 Adams Works, vol. 2, at 540 (emphasis added). 94 In England, Catholics were so despised that they were "disabled" even from purchasing property. Blackstone's Commentaries on the Laws of England, Book II, Chapter 19, page 293 ("PAPISTS, lastly, and persons professing the popish religion, are by statute ... disabled to purchase any lands, rents, or hereditaments; and all estates made to their use, or in trust for them, are void."). Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 12 of 15

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that Canada's "daily swelling with Catholic emigrants from Europe ... might ... reduce the ... free Protestant Colonies to [a] state of slavery"95 the colonists wrote (as "their affectionate protestant brethren"96) an official address "[t]o the people of Great-Britain."97 The document reminded their "Friends and fellow subjects"98 that Catholicism was "a religion that has deluged your island in blood, and dispersed impiety, bigotry, persecution, murder and rebellion through every part of the world."99 The British, therefore, should join "the ancient free Protestant colonies"100 in railing against Parliament and the King, who (by passing the Quebec Act) had mistakenly supported Catholics ­ i.e., those who "have been wholly exercised in sapping the foundations of civil and religious liberty."101 So strong and universal was the colonists' indignation over the Quebec Act that scholars claim it was among the most important factors galvanizing colonial support for the Revolutionary War.102 In fact, it has been claimed that the "principal cause" of the American Revolution "was the bigoted rage of the American Puritan and Presbyterian ministers at the concession of full religious liberty and equality to Catholics of French Canada."103 It isn't difficult to appreciate how England's official recognition of Catholicism in Canada could spur a colonial revolt among those who prominently displayed "No Popery"

October 21, 1774 letter "to the people of Great-Britain." Journals of the Continental Congress. Ford WC, ed. (Washington, DC: Library of Congress (GPO); 1904) Volume I, p. 88. 96 Id., at 100. (Emphasis added.) 97 Id., at 82. 98 Id. 99 Id., at 88. 100 Id. (Emphasis added.) 101 Id., at 100. 102 "In fact, historians of the Revolution are agreed that the Quebec Act constituted one of the major causes for the armed rebellion against British rule." Ellis: Catholics, p. 392. An entire volume exists, dedicated to the thesis that the Act was "A Primary Cause of the American Revolution." Metzger, Charles H. The Quebec Act: A Primary Cause of the American Revolution. (New York: The United States Catholic Historical Society; 1936) (hereafter "Metzger: Quebec Act"). See, also, O'Neill, James M. Catholicism and American Freedom (New York: Harper & Brothers; 1952) (hereafter "O'Neill: Catholicism"), p. 12. As noted previously, the passage of the Quebec Act was one of the "Injuries and Usurpations" listed in the Declaration of Independence. See at note 55, supra. 103 Cardinal Gasquet in Tablet, July 20, 27, 1912. Vol. CXX, as cited in Metzger: Quebec Act, p. 2. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 13 of 15

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signs,104 who had as "a regular colonial custom at the time of the Revolution that the pope and the Devil were religiously burned on Guy Fawkes Day,"105 who harbored the "traditional fear and hatred of the Roman Church and of the Catholic French in Canada,"106 and whose "prerevolutionary literature [wa]s filled with denunciations of the ... act of the British government, recognizing the Roman Catholic religion in the province of Quebec."107 As James Melvin wrote when Benedict Arnold, under whom he served, invaded Quebec, "Hostility to the Catholic religion, was without any question, one of the causes of the American Revolution."108 Admittedly, the colonists had to temper their religious prejudices in order to persuade the French Canadians to support their war effort.109 Nonetheless, official anti-Catholicism existed at some point in the laws of every colony,110 often persisting long after the revolutionary period.111

American Archives (Documents of the American Revolution: 1774-1776), fourth series, Vol. II, p. 48. 105 Van Tyne, Claude H. Influence of the Clergy, and of Religious and Sectarian Forces, on the American Revolution. The American Historical Review, Vol. 19, No. 1. (Oct., 1913), p. 60. 106 Id. 107 Id., p. 59. One claim, for example, was that "[t]he Quebec Bill ... [will] induce the Papists to assist in reducing the Protestants in America to slavery." Letter from London to a Gentleman in New-York (October 3, 1774), in American Archives (Documents of the American Revolution: 1774-1776), fourth series, Vol. I, p. 816. 108 Melvin, Andrew (ed.). Journal of James Melvin. (Portland, Maine: H.W. Bryant; 1902), cited in Metzger: Quebec Act, p. 2 (n. 5). 109 See George Washington's general order of November 5, 1775, rebuking "burning the Effigy of the pope ... at a Time when we are soliciting ... the friendship and alliance of the people of Canada." Accessed on April 15, 2007 at http://memory.loc.gov/cgibin/query/r?ammem/mgw:@field(DOCID+@lit(gw040073)). 110 Pyle, Ralph E. and Davidson, James D. The Origins of Religious Stratification in Colonial America. 42 Journal for the Scientific Study of Religion 57 (2003), pp. 66-68. That article includes a tabulated listing of the religious limitations throughout colonial America. It is filled with such notations as "Catholics excluded from office," "Catholics disenfranchised," "Officeholders must take anti-Catholic oaths," "Toleration of all Christians except Catholics," "Toleration of all except Catholics," etc. In Connecticut, officeholders were required to take antiCatholic oaths from 1662-1818, and there was "[t]oleration of all except Catholics" from 16891818. Id., at 68. Delaware excluded Catholics as representatives from 1734-1776. Id., at 67. And, through 1789, only Protestants could vote or hold public office in Rhode Island, id., at 68 (even though "no Catholics are known to have been there." O'Neill, James M. Catholicism and American Freedom (New York: Harper & Brothers; 1952), p. 7). 111 It wasn't until 1844 that New Jersey finally removed its requirement that its legislators be Protestant. New Jersey (1776-1844) Section XIX: "[A]ll persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government, as hereby Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 14 of 15

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When Massachusetts' statesmen convened to consider ratification of the federal constitution, Amos Singletary worried that "a Papist, or an Infidel, was as eligible" as Protestant Christians to participate in government.112 Major T. Lusk, at the same gathering, "shuddered at the idea that Roman Catholics, Papists, and Pagans might be introduced into office, and that Popery and the Inquisition may be established in America."113 In Pennsylvania, future Supreme Court Justice James Wilson stated bluntly that he "wished that the Constitution had excluded Popish priests from offices."114 Likewise, William Lancaster of North Carolina felt that disqualification from office should be made against "Papists" and "Mohometans."115 In short, even after the assistance of Catholic France (and Spain) during the Revolutionary War, "hatred and suspicion of Catholicism [remained] deep and widespread among Americans."116

established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature." Thorpe 5:2597-98. 112 Commentary from the Massachusetts State Ratifying Convention on January 19, 1788. Elliot: II: 44. 113 Id. (from February 4, 1788), at 148. This quote and the last (by Amos Singletary) are not unique in placing Atheists and Catholics together among the religious minorities the Protestant majority has deemed appropriate to "disregard" throughout our history. In 1701, for instance, the Protestants in Maryland were equally concerned that their fellow colonists might be "abandoned to Atheism and Infidelity" or "draw[n] over ... to Popish Superstition and Idolatry." Charter of the Society for the Propagation of the Gospel in Foreign Parts, as cited in Anderson, James S. The History of the Church of England in the Colonies and Foreign Dependencies. (London: Francis & John Rivington; 1848), Vol. II, p. 752. In his Dudleian lecture of 1757, Edward Wigglesworth noted Protestant opposition to both "Atheism" and "the Church of Rome ... a restless, incroaching, and implacable Enemy to Protestants of every Denomination." Wigglesworth, Edward. Some thoughts upon the spirit of infallibility, claimed by the Church of Rome: offer'd at the anniversary Dudleian-Lecture, at Harvard-College in Cambridge, May 11. 1757. (Boston: Eighteenth Century Collections Online. Gale Group), p. 31. When John Adams noted that "The National Fast recommended by me turned me out of office ... Nothing is more dreaded than the national government meddling with religion," "Catholicks" and "Atheists" were among the minority religious groups he specified. Letter of John Adams to Dr. Benjamin Rush (June 12, 1812). Old Family Letters copied from the originals for Alexander Biddle. (Philadelphia: J.B. Lippincott Company; 1892) Library of American Civilization (LAC 22890) Series A, pp. 392-93. And even as late as the 1860s, American Protestants were blaming society's ills on "atheists and infidels, communists and papists." Proceedings of the National Convention to Secure the Religious Amendment of the Constitution of the United States : held in Cincinnati, Jan. 31 & Feb. 1, 1872 : with an account of the origin and progress of the movement. (Philadelphia: James B. Rogers Co.; 1872), p. 5. 114 Id., vol. 4, p. 212. 115 Id. at 215. 116 Ellis: Catholics, p. 443. Newdow v. Roberts March 10, 2009 FAC: Appendix C Page 15 of 15