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From: [EMAIL PROTECTED]
Date: February 5, 2007 9:18:06 PM PST
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Subject: Happy Anniversary, "Wall of Separation"
THE MOST IMPORTANT CHURCH-STATE DECISION YOU NEVER HEARD OF
By Rob Boston,
Church and State, February 3, 2007
http://www.alternet.org/rights/47365/
Everson v. Board of Education -- the Supreme Court decision that
kicked off the culture wars -- marks its 60th anniversary.
Television preacher Pat Robertson can barely contain his anger when
he talks about a 1947 Supreme Court decision called Everson v.
Board of Education.
Robertson attacked the ruling on his "700 Club" several times last
year. Everson came out of anti-Catholicism, he sputtered in January
of 2006. Four months later, he blasted the decision because in it
the justices "relied on a letter written by Thomas Jefferson to the
Danbury Baptists talking about a wall of separation that isn't in
the Constitution."
Robertson is not the only one riled up over Everson. The case,
considered a seminal ruling in modern church-state law, marks its
60th anniversary next month. Acknowledged as the most pivotal
church-state ruling of the 20th century, Everson has become a
magnet for both Religious Right broadsides and law review blasts
from right-wing legal scholars.
Why is the far right so eager to discredit Everson? The case is
crucial because in it the Supreme Court laid down a concise and
wide-ranging definition of the First Amendment's religion
provisions that have had a profound effect on church-state law. In
addition, a unanimous court strongly endorsed Jefferson's assertion
that the American people, through the First Amendment, have
"erected a wall of separation between church and state." For anyone
seeking to undermine that wall, discrediting Everson is job one.
The importance of Everson can hardly be overstated. Virtually every
case that deals with the "establishment of religion" cites Everson.
Federal judges use it as a touchstone when seeking guidance in
contentious clashes over the proper role of religion in government.
Its language appears in countless lower court rulings and legal
briefs.
Yet for all of its importance, Everson is not as well known as high
court cases over school prayer, displays of religious symbols or
legal abortion. Everson v. Board of Education is hardly a household
phrase -- but for anyone who labors to defend the separation of
church and state, the ruling is a guiding principle.
"Everson was a seminal case," said J. Brent Walker, executive
director of the Baptist Joint Committee for Religious Liberty. "It
set the tone for the Court's modern religion-clause jurisprudence
and was significant because Supreme Court Justice Hugo Black, a
former Baptist Sunday school teacher, popularized the 'wall of
separation' metaphor that Roger Williams and Thomas Jefferson
talked about in earlier days."
The Religious Right sees Everson in a different light. To
"Christian nation" propagandist David Barton and other Religious
Right revisionists, Everson was the vehicle the Supreme Court used
to dredge up an obscure letter by Jefferson and make it the law of
the land. Overnight, as this story goes, the justices created the
wall of separation of between church and state -- motivated by
their unrelenting hostility toward religion.
The Religious Right version is bunk, but that hasn't stopped it
from being spread far and wide. As the nation marks the 60th
anniversary of the decision this year -- Everson was handed down by
the Supreme Court on Feb. 10, 1947 -- it's a good time to look at
how the case came about, to examine what it really says and to
ponder the legacy of the ruling.
Even a casual reading of the decision repudiates the Religious
Right's pseudo-history. Far from being hostile to religion, the
ruling in Everson actually upheld a form of tax subsidy to
parochial schools. The case did not mark the first time the high
court dealt with this issue, nor was it the product of a court full
of rigid secularists. The justices were a diverse lot religiously,
and there was a Roman Catholic among them.
By 1947, the court had already affirmed the right of private
religious schools to exist in Pierce v. Society of Sisters and
upheld a Louisiana law in which the state "loaned" secular
textbooks to students in parochial schools (Cochran v. Board of
Education).
Other church-state cases had come earlier. In the 19th century, the
court had decided important controversies over the free exercise of
religion in a series of legal clashes over Mormon polygamy and laid
down parameters for government intervention in internal church
disputes. A string of cases from the 1920s and '30s dealt with
religiously based objections to compulsory military service.
Everson was not the first time the Supreme Court made note of
Jefferson's wall, either. The Supreme Court cited the metaphor in
one of the Mormon cases, Reynolds v. United States (1879). In this
ruling, a unanimous high court mentioned Jefferson's wall-of-
separation metaphor favorably, remarking, "Coming as this does from
an acknowledged leader of the advocates of the measure, it may be
accepted almost as an authoritative declaration of the scope and
effect of the [First] amendment thus secured."
Reynolds was handed down 68 years before Everson. So where did this
notion come from that the high court invented church-state
separation in the latter case? It was fabricated by the Religious
Right, eager to discredit Jefferson's handiwork.
This distortion is possible because in the public mind the Everson
case remains somewhat obscure. Few outside legal circles can name
it or talk about how it came to be. The facts are easy to discern:
New Jersey in 1941 passed a law authorizing local public school
districts to provide transportation to students. Ewing Township
extended its subsidies to pupils attending parochial schools. The
move was promptly challenged in court.
Arch R.Everson, executive vice president of a group called the
State Taxpayers Association, led the legal challenge. Sixty years
after the fact, Everson's motives are difficult to ascertain, but
media accounts at the time state that Everson was driven by
principle. The amounts spent on busing parochial school students
were not large -- in Everson's Ewing Township only $357 was
allocated for it -- but Everson and his supporters argued that the
government should never use any tax funds for private religious
purposes.
The case plowed through state courts, with Everson winning the
first round but losing on appeal. From the New Jersey courts, the
case went to the U.S. Supreme Court. It was argued on Nov. 20,
1946. An Associated Press story about the two-hour oral argument
before the high court noted that Everson's attorney, Edward R.
Burke, a former U.S. senator who had represented Nebraska, made a
strong argument based on church-state separation.
"To say that parents may not only be excused from sending their
children to the public schools but shall be paid for exercising
this choice is extending religious liberty beyond anything
heretofore suggested and runs counter to the mandate of the
separation of church and state," Burke told the justices.
But Burke's argument failed to carry the day. By a 5-4 vote, the
justices upheld the New Jersey Court of Errors and Appeals and
approved the bus subsidy.
This outcome would seem to take the wind out of the sails of those
who argue that Everson was an anti-Catholic opinion or that it
manifested hostility toward religion. The tax subsidy to religious
education was approved, so where on earth does this claim come from?
Everson opponents zero in on a 174-word passage in the lengthy
decision in which the majority, led by Justice Black, observed,
"The 'establishment of religion' clause of the First Amendment
means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another.
"Neither can force nor influence a person to go to or to remain
away from church against his will or force him to profess a belief
or disbelief in any religion," Black continued. "No person can be
punished for entertaining or professing religious beliefs or
disbeliefs, for church attendance or non-attendance.
"No tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called,
or whatever form they may adopt to teach or practice religion,"
Black added. "Neither a state nor the Federal Government can,
openly or secretly, participate in the affairs of any religious
organizations or groups and vice versa.
"In the words of Jefferson," Black concluded, "the clause against
establishment of religion by law was intended to erect 'a wall of
separation between church and State.'"
The four dissenters also endorsed that idea -- but argued that the
New Jersey plan was a tax subsidy toward religion that should be
declared unconstitutional.
The dissenting bloc, led by Justice Wiley B. Rutledge, quoted
extensively from James Madison's writings and warned that
acquiescing on this demand for aid would only lead to more.
"Public money devoted to payment of religious costs, educational or
other, brings the quest for more," Rutledge wrote. "It brings too
the struggle of sect against sect for the larger share or for any.
Here one by numbers alone will benefit most, there another. That is
precisely the history of societies which have had an established
religion and dissident groups. It is the very thing Jefferson and
Madison experienced and sought to guard against, whether in its
blunt or in its more screened forms. The end of such strife cannot
be other than to destroy the cherished liberty."
Thus, in Everson, the Supreme Court unanimously -- including its
sole Roman Catholic member, Justice Frank Murphy -- endorsed the
idea of the wall of separation between church and state, even while
arguing about how high it ought to be. When all is said and done,
this is why Religious Right operatives hate the case so much and
explains their belief that the high court "invented" church-state
separation in Everson.
But the Religious Right's analysis is facile. As previous cases
demonstrate, church-state separation had been discussed at the high
court before. More importantly, the concept has even longer
historical roots, stretching back to the battle over state-
established religion in colonial America and the meaning of the
"Establishment Clause" -- that part of the First Amendment that
bars laws "respecting an establishment of religion."
In the Everson decision, the high court did not rely solely on
Jefferson's famous letter. It discoursed at length about the
history of church-state separation in America, noting the conflict
that arose when government chose to take sides on theological matters.
The court also talked about Madison's influential "Memorial and
Remonstrance Against Religious Assessments." That document, written
in the heat of battle over a Virginia law that would have compelled
tax support for Christian clergy, is essentially a list of reasons
why government support for religion is misguided. It led to the
creation of the Virginia Statute for Religious Freedom, which in
turn set the stage for the First Amendment.
"Everson did not create the concept of separation of church and
state in American constitutional law; the First Amendment did,"
said Erwin Chemerinsky, Alston & Bird Professor of Law and
Political Science at Duke University School of Law. "It is striking
that all nine members of the Supreme Court saw the Establishment
Clause that way. I believe that they are right that this is how the
Establishment Clause is best understood."
Religious Right activists ignore or distort this history and,
therefore, are unable to come to grips with the historical
underpinnings of the Everson decision. According to Chemerinsky,
critics also fail to understand how the justices used Jefferson's
letter.
"They were saying that the concept of the Establishment Clause can
be understood through the metaphor that Jefferson coined,"
Chemerinsky told Church & State. "Jefferson is a very important and
respected person in American history. It was completely appropriate
to quote him in the way in which he was invoked."
Unhappy with Everson's powerful affirmation of church-state
separation, revisionist legal scholars have coined an alternate
history more to their liking. Writing a briefing paper for the
Heritage Foundation in June, Daniel Dreisbach of American
University asserted that Jefferson would not support Black's
version of the church-state wall.
Dreisbach argued that in Everson, "the Court essentially
constitutionalized the Jeffersonian phrase, subtly and blithely
substituting Jefferson's figurative language for the literal text
of the First Amendment. In the last half of the 20th century, it
became the defining motif for church-state jurisprudence. The 'high
and impregnable' wall central to the past 50 years of church-state
jurisprudence is not Jefferson's wall; rather, it is the wall that
Black -- Justice Hugo Black -- built in 1947 in Everson v. Board of
Education."
Another tactic used by the Religious Right is to assert that the
Everson ruling is anti-Catholic. The argument is hard to sustain
since the decision upheld tax aid for parochial school busing --
but has been made for 60 years nonetheless.
Black's conclusion to the ruling reads, "It appears that these
parochial schools meet New Jersey's requirements. The State
contributes no money to the schools. It does not support them. Its
legislation, as applied, does no more than provide a general
program to help parents get their children, regardless of their
religion, safely and expeditiously to and from accredited schools.
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. New Jersey has not breached it here."
When all was said and done, Black approved the busing subsidy -- a
curious act for a supposed anti-Catholic. In fact, the charge that
Black was anti-Catholic stems from an earlier action -- his
membership in the Ku Klux Klan in the 1920s.
At the time, the reconstituted Klan was seen as a vehicle for
advancement in the Alabama Democratic Party, which controlled the
state politically. Black, a native of Clay County, Ala., had
political ambitions and served two terms in the U.S. Senate prior
to his appointment to the high court by President Franklin D.
Roosevelt.
Black was a Klan member for about three years before he resigned
and repudiated the group. The Klan was known for its anti-black,
anti-Semitic and anti-Catholic views, but on the Supreme Court
Black gave the organization no cause for celebration. He repeatedly
ruled in favor of civil rights, most notably joining a unanimous
court in striking down racial segregation in public schools. After
the ruling, Black was burned in effigy by segregationists in the
South.
Nevertheless, several right-wing scholars have accused Black of
being anti-Catholic, among them Dreisbach, Philip Hamburger and
even Jay Sekulow, TV preacher Pat Robertson's top lawyer.
In his 2006 book Witnessing Their Faith: Religious Influence on
Supreme Court Justices and Their Opinions, Sekulow notes that Black
grew disillusioned with the Baptist faith he was raised in and in
Washington attended a Unitarian church. Sekulow hastens to add,
"While many of the theological doctrines and practices of the
Baptist denomination did not appeal to Black, their separationist
and anti-Catholic declarations found a deep resonance within him."
Sekulow's source for this is the writings of Hamburger, who accuses
Black of anti-Catholicism as a way to impugn the separation
concept. Hamburger's magnum opus is the misnamed Separation of
Church and State, a 492-page screed against that principle. The
reasoning is somewhat circular: Black was an anti-Catholic bigot.
Therefore, Black supported the separation of church and state.
Therefore, support for separation of church and state means you are
an anti-Catholic bigot.
Yet the question of Black's alleged anti-Catholicism is not so
simple. Some Black biographers, primarily Steve Suitts in his book
Hugo Black of Alabama, defend Black against the charge.
More relevant is Black's behavior on the court. He not only
approved bus aid for parochial school students, but in the 1948
case McCollum v. Board of Education wrote a strong opinion that
helped end the de facto establishment of generic Protestantism in
public schools.
Fifteen years later, in the school prayer cases of 1962 and '63,
Black again ruled in a manner that favored Catholic and Jewish
students in public schools. Many of these students were being
compelled to take part in generally Protestant worship exercises in
the schools; the high court's rulings freed them from unwanted
religious coercion.
Black wrote the lead opinion in Engel v. Vitale, the 1962 case
banning mandatory recitation of government-written school prayers.
In several footnotes, Black points out the discrimination against
Catholics that was common in colonial America where Protestant
sects were established by law.
In the majority opinion, Black states, "The history of
governmentally established religion, both in England and in this
country, showed that whenever government had allied itself with one
particular form of religion, the inevitable result had been that it
had incurred the hatred, disrespect and even contempt of those who
held contrary beliefs."
A common theme runs through Black's writings in church-state cases
over his 34 years on the court. He was concerned about the union of
any religion with government. His views are perhaps best summed up
in this cogent passage from Everson.
"With the power of government supporting them," Black noted, "at
various times and places, Catholics had persecuted Protestants,
Protestants had persecuted Catholics, Protestant sects had
persecuted other Protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of
these had from time to time persecuted Jews."
Six decades after it was handed down, the findings of Everson
remain under attack in some quarters. The decision has been cited
in numerous church-state cases since then, but its core findings
are now at risk. Virtually no scholar believes today's Supreme
Court would unanimously endorse a high wall of separation between
church and state -- and it's doubtful that even a majority would.
Everson's critics came on fast and furious in the modern era. In
1985, William H. Rehnquist, an appointee of President Richard M.
Nixon who was put on the court in part to roll back the progressive
views of the Earl Warren court, penned a bitter dissent to a school
prayer case in which he attacked Everson's reasoning.
"There is simply no historical foundation," Rehnquist wrote, "for
the proposition that the Framers intended to build the 'wall of
separation' that was constitutionalized in Everson."
Rehnquist called Everson's lofty rhetoric "useless as a guide to
sound constitutional adjudication" and labeled Jefferson's wall
metaphor "useless as a guide to judging."
Other high court justices, notably Clarence Thomas and Antonin
Scalia, have since joined the attack. The Everson decision has also
come under fire from Religious Right propagandists like Barton,
whose gross oversimplifications and error-ridden prose tend to
undercut his arguments, and from more sophisticated legal critics
like Hamburger.
But Everson has its stalwart defenders. Justice John Paul Stevens
stood up for Everson's core principles when he dissented in the
school voucher case of 2002. Stevens wrote, "Whenever we remove a
brick from the wall that was designed to separate religion and
government, we increase the risk of religious strife and weaken the
foundation of our democracy."
National organizations have also rallied around the Everson
language affirming the church-state wall -- even while disagreeing
with the high court's conclusion allowing the busing subsidy.
Americans United for the Separation of Church and State (AU) was
formed in part as a reaction to Everson. While many clergy and
leaders in public education were pleased to see the high court
endorse the church-state wall, they were dismayed that a court
majority had, for the second time, extended tax aid to religious
schools.
AU's governing manifesto, issued on Nov. 20, 1947, cites the
Everson case and the earlier Cochran decision, noting, "The four
dissenting justices in the bus-transportation case solemnly warned
the nation that these two breaches in the wall of separating church
and state are only the beginning. 'That a third and a fourth
breach, and still others, will be attempted, we may be sure,' say
the dissenting justices."
The manifesto goes on to say that AU "is determined to assert its
full strength to the end that there shall be no more breaches in
this wall, that the breaches already made shall be repaired, and
that the complete separation of church and state in an undivided
state-supported educational system shall be maintained."
Alas, AU's founders were a little too optimistic. The high court
did strike down more direct forms of aid to religious schools in
the 1960s and '70s but began to drift off course in the '80s as
more conservative appointments were made. In 2002, the court
approved vouchers for private religious education.
Everson's downward trajectory and the erosion of Jefferson's wall
underscore the importance of future appointments to the Supreme
Court. A faction on the court is clearly hostile to Everson, while
another bloc can be counted on as supportive. Neither probably has
enough votes to muster a majority to either reinforce or undermine
the ruling. Thus, the next few appointments are crucial.
No matter what the future holds, Everson will be remembered by
church-state separation advocates as a seminal case, important for
its clear explanation of the scope and meaning of the First
Amendment's religious freedom provisions. Had subsequent courts
embraced the Everson formula, church-state relations in America
might look quite different. Vouchers and other forms of tax aid to
religious schools would not have been upheld, and "faith-based"
initiatives would be dead in the water.
"Everson's impact was profound," said Ayesha N. Khan, legal
director of Americans United. "Virtually every church-state case
felt its impact, from prayer in schools and tax aid to religion to
displays of religious symbols on government property."
Continued Khan, "Justice Black's definition of church-state
separation in Everson is probably the most well-stated and powerful
ever issued by the high court. It's a shame the court did not stick
with it. They might have spared the nation the raging 'culture
wars' that afflict so much of church-state law these days."
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