Tear Down that Wall

The 60th Birthday of The ‘Wall’ Separating Church and State

BY GERALD RUSSELLO

June 10-16, 2007 Issue | Posted 6/5/07 at 7:00 AM

This year marks the 60th anniversary of a decision that has thrown the law of religious liberty into disarray for the last six decades.

In 1947, the Supreme Court decided Everson v. Board of Education, which concerned a New Jersey state law that provided reimbursements to parents for their children’s use of public buses to travel to and from Catholic schools.

The court decided, in a majority opinion by Justice Hugo Black, the local boards of education could reimburse parents for using public transportation for Catholic schools. But what seemed at first like a victory for religious liberty, especially for Catholics, quickly turned sour; Justice Black himself called it only a Pyrrhic victory.

There are two things to keep in mind about this opinion.

First is the character of Black.

While he is famous for his expansive view on the First Amendment and his defense of civil liberties, he is equally well known for being a former senior member of the Ku Klux Klan. While he seems to have thrown off his racial views after coming to the court, his equally virulent anti-Catholicism never seems to have left him. As it happens, Everson himself, the plaintiff in the case, was a member of the New Jersey chapter of the Junior Order of United American Mechanics, a nativist organization that had often allied itself with the Klan.

The anti-Catholicism expressed in the case did not end with Black. Justice Jackson who disagreed with Justice Black and would have ruled the New Jersey program unconstitutional, wrote a separate opinion in which he proclaimed that: “Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values.”

His description of the role schooling plays in the passing down of the faith makes Catholicism seem a little like a cult.

In addition to its infection of First Amendment jurisprudence with anti-Catholic bias, the second thing to recall is that Everson totally rewrote the relationship between religion and society.

Prior to Everson, most religious liberty controversies remained at the state level, because the Constitution did not explicitly govern this issue. What has made the opinion’s legacy so damaging is Black’s application of the First Amendment to this state-level issue, and his importation of the metaphor of a “wall” between church and state.

The First Amendment on its face does not apply to laws such as that passed by New Jersey: the language of the amendment states only that “Congress” shall make no law respecting the establishment of religion, or infringing upon the free exercise of one’s faith.

The Constitution says nothing about prohibiting the states from doing so.

Indeed, at the time of the enactment of the Constitution and for decades afterward, numerous states had established churches, and almost every state supported religion in some way. The Constitution was directed at national interference in religious belief, and did not prohibit states from taking action to favor or support religious belief.

Nevertheless, Black — without explanation or analysis — merely applied the language of the amendment to the actions of the New Jersey state government. This opinion, therefore — like the abortion decision Roe v. Wade — removed the possibility of state level compromises about issues central to politics, here the place of religion in public life. Instead, the decision placed the federal courts as final arbiters.

The establishment of what the critic Russell Kirk called the “archonocracy” (rule by judges) continues to plague American jurisprudence across a number of areas. Following Everson, decisions through the early 1980s caused Black’s admonition to be fulfilled: Contrary to the wishes of the electorate, and with increasing absurdity, the Supreme Court maintained a high wall between church and state where one was never meant to be.

Black ends his opinion with the peroration that the “First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

It is the first significant use of that metaphor in a judicial opinion but contrary to Black, the First Amendment does not establish any “wall” between church and state, despite what generations of judges have held and law students been taught. The “wall” metaphor was first used by Thomas Jefferson in a private letter to a group of Baptists in Connecticut in 1802, years after the Bill of Rights was adopted, and has nothing whatsoever to do with the Constitution.

Scholars such as Philip Hamburger, however, in his recent book, The Separation of Church and State, suggest that the wall metaphor came in handy in order to beat back suspected Catholic influence. Aside from communism, the great fear in the late 1940s and 1950s in American public life was of a “Catholic menace,” which was supposedly hostile to the democratic traditions of the country.

For example, luminaries such as Albert Einstein and John Dewey praised Paul Blanshard’s 1949 anti-Catholic screed, American Freedom and Catholic Power. Asserting that a wall existing between church and state allowed the Supreme Court to block laws that supposedly assisted “sectarianism,” which was a code word for Catholic institutions.

Over the next six decades, until very recently, the Everson decision wormed its way into American cultural discourse. Some now consider it an immoveable part of constitutional law, but that would be a mistake. The wall metaphor has been used repeatedly to deny religious people full participation in public life, through their actions as individuals and as religious groups. It is based on a fundamentally flawed understanding of religious liberty, and was motivated in the first instance by anti-Catholic sentiment. A fuller understanding of religious liberty is possible only when that wall has been removed.

The Everson decision was reached at a time when anti-Catholic bigotry was accepted, even among justices of the Supreme Court.

That time has long passed, if for no other reason than the successes of Catholics in American public life, including the Supreme Court, have put the lie to Black’s bigotry that Catholics could not make good Americans. It is time to tear down the bigoted wall that has tainted so much of American public life.

Gerald Russello is a Fellow of the

Chesterton Institute at

Seton Hall University.

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