Stephen Strehle is a leading scholar of church/state issues. In this volume, he focuses his rigorous historical analysis and philosophical acumen upon a topic of great interest today and source of cultural wars around the globe—the process of secularization. The book starts with a discussion of early capitalism and how it saw the real world functioning well-enough on its own principles of individual struggle and self-interest, without needing religious or moral principles to meddle in its affairs and eventually dispelling the need for any intelligent design or providential orchestration of life through the work of Darwin. The book then discusses the growth of the secular point of view: how historians dismissed the impact of religion in developing modern culture, how scientists conceived of the universe running on self-sufficient or mechanistic principles, and how people no longer looked to the providential hand of God to explain their suffering. The book ends with a discussion of how the Deist concept of human autonomy became a political policy in America through Jefferson’s concept of a wall of separation between church and state and how the US Supreme Court proceeded to dismiss the importance of religion in shaping or justifying the values of the nation and its laws. The book is accessible to most upper-level and graduate students in a wide-variety of disciplines, keeping technical and foreign words to a minimum and leaving scholarly details or debates to its extensive notes.
Chapter Seven: The Development of the Wall
There was no greater political ally in helping to forward the basic agenda of Jefferson on religious issues than James Madison. The two Virginians shared almost identical convictions on the issues, although the precise nature of Madison’s “private” religious opinions remains much more obscure than those of his distinguished colleague, whose “private” letters were published and filled with theological commentary. Unfortunately, Madison says very little about the subject in his public words and writings, only some vague testimony about his belief in a “God All Powerful, wise and good,” who is “essential to the moral order of the World” and a terse comment later in life about Christianity being the “best and purest religion.”1 And yet, it is well-known that religion played an important role in his early and overall maturation. At the age of twelve, he was sent to a boarding school and tutored by Rev. Donald Robertson, the Scottish Presbyterian headmaster, who instructed him in the classics, literature, science, and Reformed theology. Four years later, he went to Princeton, the academic bastion of New Light Presbyterianism, and experienced particular inspiration from its president, John Witherspoon, who applied his religious convictions to the “general principles of law and politics” and inspired many future leaders of the nation with his criticism of Tory policies and firm belief in religious liberty.2 As a Virginian, Madison also experienced the ← 217 | 218 → surge of Baptists, Presbyterians, and other dissidents entering the state during the times of the Great Awakening and dominating his region as the majority of the citizens. Both he and Jefferson attended their meetings and joined their push for religious freedom as faithful representatives of the people.3
Madison’s concern for the issue escalated into a zealous crusade when certain Baptist ministers were jailed in Anglican-controlled Culpepper County for simply preaching their version of the gospel, causing him to develop the most uncompromising position. He began to speak out as early as 1774 about this type of injustice within the established order and developed an extreme view of religious freedom for the time, exceeding the expectations of many reformers, rejecting all talk of toleration as the halfway measure of a religious establishment, and wanting to end its privileges altogether.4 At the revolutionary convention of Virginia in the summer of 1776, Madison sought to amend George Mason’s version of the Declaration of Rights with much stronger language about the “free exercise of religion” as an “absolute right.” Mason’s proposal provided the “fullest toleration” to “all men,” whereas Madison went beyond this condescending language of an established order and afforded the “full and free exercise” of everyone’s religion, rejecting the “peculiar emoluments or privileges” of a specific religious expression, not just its overt acts of persecution.5
Much of the battle came to a head a few years later when a majority of the Virginia legislature wanted to help financially strapped religious institutions through a general assessment supporting “Teachers of the Christian Religion.” The measure was sponsored by Patrick Henry and supported by many distinguished politicians in the state, including George Washington, John Marshall, Edmund Randolph, and Richard Henry Lee. With Jefferson serving as a plenipotentiary minister in France, the task fell on the shoulders of Madison to lead the Baptists and other dissident groups in opposing the bill.6 In the spring of 1785, Madison wrote his famous “Memorial and Remonstrance” attacking establishments in general and Henry’s assessment in particular. He argued that the legal establishment of Christianity has led to political tyranny throughout its 1500 years of existence. “In some instances they have been seen to erect a spiritual tyranny on the ruins of civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instances have they been seen the guardians of the liberties of the people.”7 His solution was to disestablish the Anglican Church, as well as deny public support for the Christian religion and its many sects.8 His “Memorial and Remonstrance” collected over 1,500 signatures in the central Piedmont, Shenandoah Valley, and Northern Neck, helping to turn the tables and develop overwhelming state-wide disapproval of the bill. Because of Madison’s leadership, the measure was defeated and used to forward Jefferson’s earlier “Bill ← 218 | 219 → for Establishing Religious Freedom” (Virginia Statute for Religious Freedom), which was signed into law on January 19, 1786, and served as an important symbol of disestablishment throughout the country.9
Alongside his struggles in Virginia, the name of James Madison is forever linked with the cause of religious liberty through his sponsorship of the first ten amendments to the Constitution. Within his first draft, Madison proposed a couple of amendments that would guarantee freedom of religious beliefs and practices, prohibit the establishment of “any national religion,” and extend the “equal rights of conscience” to the many states.10 After a number of counter-proposals and drafts, the delegates approved a single amendment upon religious liberty, which reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The final version represents the work of the entire Convention, although Madison served as the guiding light in the overall process and became known as the “Father of the Constitution.” The actual wording seems to pacify the concerns of northern delegates and sounds much like the proposals made by Fisher Ames of Massachusetts and Samuel Livermore of New Hampshire, both wanting to protect local establishments from the intrusion of federal policies.11 Because of this and other concerns, Madison was unable to extend the dominion of the amendment to the many states, even though his fundamental goal was reached by protecting the free exercise of religion and prohibiting the establishment of a national church. Certainly, if Jefferson and Madison obtained all that they wanted in their most doctrinaire moments, the amendment would have called for the complete secularization of government in all its realms, but this doctrine would go far beyond the political realities of the day. Even Madison’s comments during the debate, as recorded in the annals of Congress on August 15, 1789, appear to limit the scope of the amendment and follow a narrow reading of its intention.12 There is no talk of separating the sacred and the secular.13 There is only the desire to prevent the American government from following the example of Europe and establishing a religious institution of its own. While the states are free to continue their practice—many of which allowed townships to establish a church in their districts—the federal government would not seek to establish such an institution; and that is all. If more was intended (and the words are ambiguous), there is little direct proof of a broader reading at the Convention or during the ratification process among the many states, which lean toward the narrow reading of the text, if anything.14 If one wants to follow a broader meaning, one must find its justification within modern hermeneutical principles, which allow greater freedom and seek to expand or deconstruct the meaning of the text in other directions, beyond the original intendment.
Did Madison intend to proceed all the way in the paradigm toward a complete separation of church and state? The total evidence involves the same equivocations ← 219 | 220 → that Jefferson also expressed throughout his career and writings, with a more doctrinaire position appearing only later in Madison’s life, once political motives were set aside and no longer served as an obstacle in expressing his heartfelt convictions. For those who reject the wall of separation and look to Madison as an authority in favor of their viewpoint, there is plenty of evidence to support their interpretation. There is his belief that religion is essential to the moral order—a conviction he shares with Jefferson and the rest of the Founding Fathers.15 There is the continuous God-talk in his public addresses, referring to “Divine Providence,” the “Divine Author of Every Good and Perfect Gift,” the “Sovereign of the Universe, and Benefactor of mankind,” testifying to a belief in a personal and Christian concept of deity and expressing gratitude for divine grace and goodness to the nation.16 He exhorted the American people to
…offer, at one and the same time their common vows and adorations to Almighty God…for the devout purpose of rendering to the Sovereign of the Universe and the Benefactor of Mankind the public homage to His holy attributes; of acknowledging the transgressions which might justly provoke the manifestations of His divine displeasure; of seeking His merciful forgiveness, and His assistance in the great duties of repentance and amendment, and especially of offering fervent supplications that in the present season of calamity and war He would take the American people under His peculiar care and protection; that He would guide their public councils, animate their patriotism, and bestow His blessing on their arms; that He would inspire all nations with a love of justice and of concord and with a reverence for the unerring precept of our holy religion, to do to others as they would require that others would do to them; …17
There is evidence of him supporting civil religious practices. While serving in the Virginia state legislature, he endorsed the use of chaplains and days of fasting, prayer, and thanksgiving, exacting a penalty of fifty pounds upon non-conforming ministers who refuse obeisance to the civil religion.18 As President of the United States, he issued four proclamations of prayer and fasting, beginning on July 9, 1812, with the outbreak of British hostilities and recognizing in all of them the need to seek divine guidance and blessing.19
Nevertheless, Madison’s absolute and unequivocal position of total separation appears to emerge later in his life, only when political considerations and practical compromises no longer interfere with his intentions. Here he speaks in unequivocal terms of a “total separation of the Church and the State” as a Constitutional principle.20 “In the Papal System, Government and Religion are in a manner consolidated, & that is found to be the worst of Govts.”21 He considers any coalition between religion and government as destructive to both institutions and wants the separation applied to the many states, along with other “rights of conscience.”22 In his “Detached Memoranda,” he rejects military and congressional chaplains as a ← 220 | 221 → violation of the First Amendment and even repudiates his former proclamations of prayer and thanksgiving, offering a number of excuses for his lapse: he only followed the precedent of Washington and Adams while serving in office; he was “disinclined” to do so until Congress forced his hand; he left the observance “up to the people to express it” according to “their own faith & forms;” he always made the proclamations non-sectarian and voluntary, and so forth.23 What emerges from his explanation is a person who wanted to please the majority while serving as the president and knew the majority rejected his absolute view of church/state separation, making it necessary to compromise and seek divine blessing as a nation in uniting the people.24 He might find it difficult to “trace the line” and avoid all collisions between the rights of religion and civil authority,25 but his basic proclivity is found in separating the two realms as much as possible; this doctrinaire position appears to represent his mature and fundamental position.
It was the power of the French Enlightenment and the process of secularization that brought to fruition the basic designs of Jefferson and Madison more than any statute or government policy. Many of the leading figures of eighteenth-century America were convinced secularists and preferred to attribute the creation of the Constitution to the powers of reason or secular historical antecedents than theological dogma. These sons of the Enlightenment produced many works that demonstrate the overall bias, but one of the best examples of the mentality is found in John Adams’ Defence of the Constitutions of the United States of America. The first volume was finished just in time to enjoy a wide circulation among the delegates at the beginning of the Constitutional Convention, and the next two volumes were completed a year later.26 The work represents the growing secularity of America, even more so than Jefferson’s writings, as it simply neglects to mention the religious moorings of the country and looks to other “secular” sources for inspiration, rather than conduct an open or direct assault upon the church. In the preface of the work, Adams claims that the American way of government resulted from the hard work of reason and consultation with scientific writers in the field, not “interviews with the gods” or the “inspiration of Heaven.”27 He bestows much credit on a number of “secular” experiments in history, extending back to Ancient Greece and Rome, as well as his own considerable ability to analyze their strengths and weaknesses. No direct assault is launched upon the Judeo-Christian tradition per se, but through his neglect of mentioning anything significant in the tradition, the work reflects the anti-Semitic and anti-Christian bias of the Enlightenment. ← 221 | 222 →
Adams begins his history in the Graeco-Roman world. He mentions the experiment of Solon in Athens as inspiring the Romans and later European models toward a nascent form of democracy and mixed government. The Athenian experiment and other ancient republics are commended as providing an invaluable source of inspiration to Rome and the many Italian republics in the Middle Ages, even if they ultimately failed in the march toward perfection because of an inadequate system of checks and balances.28 The Puritan Revolution is afforded just a few lines and only mentioned to dismiss its importance as an “unsuccessful and injudicious attempt to abolish monarchy and aristocracy.” Cromwell, Ireton, and all its other leaders are treated as “mad with enthusiasm” and discarded as irrelevant, providing no source of inspiration or example worthy of emulation for the coming era.29 Instead, Adams prefers to exalt those who offered a more sober, scientific analysis of government than these religious zealots. He gives special credit to Machiavelli for reviving the rational approach of Plato and Aristotle to political discourse. He also mentions many others like Harrington, Milton, Sidney, Locke, Montesquieu, Swift, Franklin, and Price as the “greatest lights of humanity” for helping to establish the modern concept of republican government.30 Harrington is given much credit for the discovery of checks and balances—“a noble discovery, of which the honor solely belongs to him, as much as the circulation of the blood to Harvey, printing to Laurence Coster, or the invention of guns, compasses, or optic glasses to the several authors.”31 (Of course, the honor belongs to him because the other authors of the Puritan Revolution used Bible verses to prove practically the same point, and secular or philosophical approaches are what Adams wants to honor as worthy of esteem.)
Adams believes that the evolution of political thought has reached a level of perfection in England and America unsurpassed by all others with its clear separation of executive, legislative, and judicial branches.32 Most of his work is devoted to spelling out the reason why a proper separation and balance is necessary for preserving a free republic.33 His argument is filled with detailed historical analyses and rational disputation, which exhibit extensive learning and a considerable amount of thought,34 but what he fails to understand in all its ratiocinations is the significant debt he and his country owes to the Christian faith, especially to the Puritans of his state of Massachusetts. Regardless of his belief in objective research and rational analysis, he like any other interpreter of history or literature reads texts and considers ideas through the context of a cultural background.35 His own Puritan culture believed in the separation and balance of powers, and he reads the past and reasons to conclusions like anyone else in a certain Sitz im Leben, ever remaining within the interpretive matrix of that culture. Adams might provide further justification for the doctrine and develop his unique statement or idiom. ← 222 | 223 → He might serve the culture as an unconscious or unwitting member of its point of view. He might have no idea how much a role Christianity played in developing the basic outline of government in his country or his own way of thinking, but the evidence of this influence is beyond dispute. Even his mode of argumentation remains indebted as much to faith as it does to his rational acuity. No better illustration of this influence is found than the continuous accent upon human depravity throughout his work as providing the fundamental rationale for separating and balancing powers. Human depravity is a unique doctrine of Christian anthropology, strongly emphasized by the Reformed theology of New England and most essential in distinguishing its confession from all other religions and philosophies in the world. Christianity teaches a darker view of the human condition than other ideologies with its emphasis upon original sin, the accent upon confession, and the complete dependence upon divine grace. Adams argues throughout his work from this concept of human depravity, believing no set of circumstances or values can alleviate the dark condition in which all of us are born. The selfish impulses are much stronger than any positive affection that public service might inflame toward the good of our fellow citizens. The ambitions of politicians cannot be eradicated in this life, but only held in check by a system of government that prevents the hubris of one person or group from obtaining uncontrolled power.36 This same argument is repeated time and again in Montesquieu, Madison, and all those who defend the need for balancing and separating powers in the modern world—an argument indebted in a most decided way to the dark image of the human condition in Christian anthropology.37
In contrast to his secular works, Adam’s overt political stance often represents or accommodates the religious affections of his constituency. His exact motives are difficult to ascertain and subject to the same sort of deconstruction that recognizes the contradictions in Jefferson and Madison and problems dividing their actual (or changing) point of view from the reality of political posturing. A good example is the Massachusetts Constitution of 1780, which was drafted, edited, and enacted under the leadership of John Adams, and reflects the need for compromise between elements within the constituency—the Congregationalists who want an establishment to bolster their small, struggling churches and the dissenters who want religious liberty but think of Protestantism as the necessary foundation of that liberty.38 The new Constitution reflects these concerns and stipulates that all state officials and appointees “believe and profess the Christian religion” and “abjure all allegiance” to any foreign power—civil or ecclesiastical.39 It says that all human beings have a sacred duty to worship God at “stated seasons” in the public forum. The “publick Worship of God” and “publick instructions in piety, religion, and morality” are necessary in preserving “good order” and “civil government.”40 ← 223 | 224 → It supports the rights of conscience for dissidents but allows local officials to continue the colonial practice of requiring attendance and financial support of their Congregational churches, with a possible exception for dissidents, if they are able to establish their own fellowship within a community.41 Later Adams describes the arrangement as providing a “most mild and equitable establishment”42 and provides some apologetic testimony for its provisions in his writings,43 but it remains difficult to separate his endorsement from the desires of his constituency and ascertain what he really thinks in an ideal world. On the surface, the interpreter is left with the contradictions of a man who is caught between his own Puritan culture and the ideology of the French Enlightenment—a man who finds religion the foundation of civil government and then turns around and disavows the Puritan background of his own political ideas in the name of rational secularity.
Liberals and Republicans
The Christian roots of the nation started to fade into distant memory as the tide of secularization began to engulf the whole country. By the second half of the nineteenth century, a number of groups began to advocate a revision of the First Amendment, calling for a complete separation of church and state. One of the most strident groups was the National Liberal League, founded in 1866 by Francis Abbot. Its main goal was the “TOTAL SEPARATION OF CHURCH AND STATE,” as “the very corner-stone of the American Republic.”44 At their convention that year, they decried “any interference by religion in the affairs of society and the State.”45 “Christianity…is by its very nature hostile to individual and national liberty, and to equal individual rights.”46 “Christianity…is averse to republicanism, [and so] the education of the masses out of [the] religion is an absolute necessity for the perpetuation of this Republic.”47 “Universal education is the only safeguard of universal liberty; no child in the republic should be permitted to grow up without at least a good common school education; the public school system cannot be sustained in equal justice to all except by confining it strictly to secular instruction.”48 Our public institutions are degraded by the very presence of religion.49 America was founded by “liberals and free thinkers,” who rejected the hatred of sectarian religious groups, and “succeeded in placing the general government upon a purely secular basis.”50 The Liberal League wanted to replace the First Amendment with a new amendment, which rejected any union between church and state in all levels of government. The articles of the amendment spelled out some specific demands, including the end of religious tests and tax support for religious sects, schools, and charities.51 Alongside the amendment, the league also listed a ← 224 | 225 → number of additional demands in their Convention of 1876: (1) the taxation of churches, (2) the elimination of public chaplains, (3) the end of Bible-reading in schools, (4) the rejection of all laws based upon “Christian” morals, (5) the end of Sabbatarian laws, (6) the end of religious fasts and holidays, and (7) the elimination of judicial oaths.52
The Blaine Amendment
Shortly after the liberals began to organize and exercise their political muscle, the President of the United States, Ulysses S. Grant, adopted the essential spirit of their agenda as a part of his Republican platform. On September 30, 1875, he rallied some of his former troops in Des Moines, Iowa for the coming election and warned them concerning the divisive nature of religious superstition in the Republic, hoping to prevent a new “civil war.”
Comrades: It always affords me much satisfaction to meet my old comrades in arms ten to fourteen years ago, and to live over again in memory the trials and hardships of those days,—hardships imposed for the preservation and perpetuation of our free institutions. We believed then and believe now that we had a government worth fighting for, and, if need be, dying for.… Let us, then, begin by guarding against every enemy threatening the perpetuity of free republican institutions.… If we are to have another contest in the near future of our national existence, I predict that the dividing line will not be Mason and Dixon’s, but it will be between patriotism and intelligence on one side and superstition, ambition and ignorance on the other. Now, in this centennial year of our national existence, I believe it is a good time to begin the work of strengthening the house commenced by our patriotic forefathers one hundred years ago at Concord and Lexington. Let us all labor to add all needful guarantees for the perfect security of free thought, free speech, and free press, unfettered religious sentiments, and of equal rights and privileges to all men, irrespective of nationality, color, or religion. Encourage free schools, and resolve that not one dollar appropriated to their support, no matter how raised, shall be appropriated to the support of any sectarian school. Resolve that neither the State or nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical tenets. Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the Church and State forever separate. With these safeguards I believe the battles which created the Army of Tennessee will not have been fought in vain.53
In December of 1875, Grant went to Congress and urged them to pass a new constitutional amendment that would make “Church and State for ever separate and ← 225 | 226 → distinct,” that would require the states to provide “free public schools” for all children, that would forbid religious and anti-religious instruction in the classroom, that would prohibit any level of government from using “school funds or taxes” to benefit a “religious sect or denomination.”54 A week later James G. Blaine, who was a congressman from Maine and presidential hopeful within the Republican Party, seized upon the popular momentum and offered an amendment for legislative consideration.55 The amendment read,
No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund thereof, nor any public lands devoted thereto, shall ever be under control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.56
The amendment enjoyed broad support at the time and particularly appealed to the many sides of Blaine’s constituency. Many Republicans preceded the nation in advocating the Jeffersonian doctrine of church/state separation from the very beginning of the party in the early nineteenth century, showing a tendency to apply his strict interpretation of the First Amendment to all levels of government, encouraging the development of a public/secular system of education, and hoping to prevent religious schools from receiving public funds. The Jeffersonian agenda experienced some success in places like Michigan, which led several other states to promote a secular view of government and adopt the strict doctrine of separation in its constitutional framework of 1835; but much of the impetus among other states came later when Catholic immigrants poured into the country and presented an imminent danger to the Protestant hegemony and its concerns over preserving the American way of life.57 These Americans viewed Protestantism as the foundation of Republican government and Catholicism as a threat to individual freedom. They saw Catholicism and its hierarchical system of polity undermining the democratic spirit of most Protestant churches and challenging the quasi-Protestant character of the common schools.58 Few of them were able to divorce religion and morality, or denude an educational system from the basic principles that supported good citizenship and their basic view of government and culture.59 This meant that the common schools must inculcate their general Protestant values through preaching liberty, equality, and democracy, and must add religious exercises like the singing of Protestant hymns, daily prayer, and the reading of the King James Bible to underscore the message.60 When Catholics challenged these religious practices and set up their own parochial schools, Protestants sought to preserve their privileged status and prevent Catholics from siphoning off public funds away from the common schools toward a sectarian purpose through devices like the Blaine ← 226 | 227 → Amendment. The congressional debate included vitriolic, anti-Catholic polemics concerning the un-American nature of the religion, clearly hoping to capitalize on Protestant fears and bigotry.61
The results of the debate were mixed. The measure failed to garner the necessary two-thirds majority in the Senate by a slim margin, after roaring through the House with an overwhelming majority of 180 to 7. However, Congress proceeded in subsequent sessions to compel the new territories into adopting Blaine-like amendments as a condition for entering the union, and some thirty states enacted similar measures by the early part of the twentieth century—some preceding, while others followed the congressional debate.62 At the turn of the century, the process of watering down religious content within the common schools was transpiring on its own, apart from Catholic complaints, as the culture sought to include as many children as possible and adopt a non-sectarian or secular approach to teaching.63 With the defeat of the amendment, the attempt to create a more secular government on the federal level was set aside—at least for the time being, and it was left up to the states or local municipalities to pass their own versions. While liberal newspapers and organizations continued to press the issue throughout the rest of the century, the political will soon collapsed after 1876, and liberal Americans were left looking for another avenue to help change the federal government into their secular image and establish secularism as the law of the land.64
What the liberals could not accomplish through the legislature they were able to secure through the courts of the country as it moved into the twentieth century. For the most part, the liberals of the nineteenth century understood that the First Amendment required a substantial change in its wording to develop a stronger doctrine of separation. But tactics changed when new hermeneutical procedures allowed the courts to become more flexible and activist in applying the law to present circumstances.65 Legal realists like Oliver Wendell Homes began to sanction the practical realities of his profession, admitting that judges seldom act in accordance with the authorial intent of the Constitution but often fill in gaps, make deductions, and work for a good social outcome. In the 1920s and 1930s, this position worked its way through the most prestigious law schools of the land and made its impression upon the United States Supreme Court, redefining its nature.66 As early as 1934, Chief Justice Charles Evans Hughes could say,
It is no answer to say that this public need was not apprehended a century ago, or to insist that what the provision of the Constitution meant to the vision of that day it ← 227 | 228 → must mean to the vision of our time. If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framer, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning—“We must never forget that it is a constitution that we are expounding… [,] a constitution intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”67
With hermeneutics no longer restricted to its original intention, the jurists were free to deconstruct or expand the meaning of the Establishment Clause beyond its limited purview and erect a wall between church and state, based on their own “interpretation,” cultural biases, and the genuine need to apply the letter of the law to a new and contemporary situation. The jurists were given the freedom to expand the scope of the First Amendment and go beyond its simple rejection of a national church or providing a priori privileges to a specific denomination. They broadened the meaning to promote a much more secular agenda and erected a Jeffersonian wall, which proceeded to bar the majority of Americans from expressing their faith in the public square through sacred symbols and rites, promote a secular concept of life through funding non-religious education, and create a secular establishment in the place of religion in general, maintaining that religion has no serious or beneficial influence upon public policy, as if the government existed outside metaphysical concerns. The wall of separation was not erected by the founders of the Constitution but the secular, activist members of the Court, who wished to “read” the First Amendment in that way, using a more flexible set of hermeneutical principles.
The first mention of the wall is found in Reynolds v. United States (1879), just after Grant’s administration and its call for the separation of church and state, already indicating the political nature of any interpretation provided by the Court.68 In this case, the Court ruled against the Mormons and outlawed the practice of polygamy, claiming it violated social norms, disturbed public peace, and represented the despotic practices of the past that were inimical to democratic principles.69 The Court helped substantiate its case by referring to the words of Madison and Jefferson in their original debate over religious establishment in Virginia and quoting the famous paragraph concerning the wall of separation in Jefferson’s letter to the Baptists, treating it as if it contained an authoritative interpretation of the “scope and effect” of the First Amendment. Its verdict was important in helping to open a door toward the doctrine of separation, although it only cited the words of Jefferson without endorsing any specific interpretation or ← 228 | 229 → expanding on what it found so meaningful in the letter. It took the Supreme Court another seventy years before it erected the wall in more unequivocal language. The Court referred to Reynold v. United States in its decision as setting an important precedent, although it was not until this later time that the consciousness of the Court was changed decisively through the use of the famous metaphor.70
The latter decision was the work of Justice Hugo Black, a New Deal Democrat from the great state of Alabama. As a populist, Black was furious with the elitist Court early in his political career for turning down New Deal legislation and even approved of Roosevelt’s attempt to pack the Court by appointing more jurists than stipulated by the Constitution.71 When this strategy failed, Roosevelt proceeded along the more typical political lines of waiting for a vacancy and appointing a jurist in favor of one’s overall political philosophy. Eventually, Hugo Black was tapped and became an Associate Justice of the Supreme Court in 1937. Black certainly represented a basic commitment to the left-wing ideology of the administration, which was leading the country into secular, egalitarian, and socialist policies.72 In his early days, there were some problems with his profile as a member of the Baptist Church and the Ku Klux Klan,73 but Black clearly distanced himself from his past and maturated into much the opposite during his tenure in Washington, leaving his former religious convictions back in the Bible Belt, becoming a secular liberal progressive, and identifying with the ideology of authors like Dewey, Russell, and Camus—the foremost atheists of the day.74 Roger Newman, his leading biographer, describes him as basically an “irreligious man,” who “drifted from organized religion,” except for an occasional visit to All Souls Unitarian Church.75 The constant force in his life was Thomas Jefferson, whom he admired as a Bible-believing Baptist and a secular atheist in his attempt to separate the government from the corrupting influence of religion. According to the testimony of his son, Jefferson was his father’s “number one, number two, and number three” historical hero, especially regarding First Amendment issues.76
It is no surprise, given this background, that Black used an opportunity in Everson v. The Board of Education (1947) to erect a wall of separation between church and state.77 The case concerned a statute that authorized the payment of tax dollars for the transportation of Catholic children to and from parochial schools. The Protestant majority had no interest in sectarian education and wanted to keep tax dollars within their own public domain. They were represented by groups like the Baptist Joint Committee on Public Affairs and the predecessor of the National Council of Churches—all united in denying any form of aid to parochial schools and pushing the country toward a strict doctrine of separation out of concerns over the spread of the Catholic menace.78 Black ruled in favor of the statute since transportation is “indisputably marked off from the religious function” of the schools ← 229 | 230 → and all citizens should receive equal treatment under the law in secular matters. However, the specific ruling was not so memorable as his protestations in trying to pacify the left-wing members of the Court and his constituency, reaffirming in spite of the decision his firm belief in the separation of church and state. It is these comments that set an important precedent in the consciousness of the Court and the land up to the present-day. During this part of the opinion, he declares that the First Amendment “has erected a wall between church and state,” which is “high and impregnable.”79
At this point, Justice Black and the rest of the Court felt some sense of obligation to justify their decision by appealing to the intention of the Founding Fathers, rather than underscoring their new freedom and activism in accordance with modern hermeneutical methods. It was here that they particularly went astray, abandoning a more credible appeal to interpretive ambiguity and appealing to the old method of seeking the original intent of the author(s). This decision forced them into practicing the worst sort of revisionist history, pre-selecting and weighing evidence to fit their a priori interpretative designs. Thus, to fit their theory, they spoke of the First Amendment as a “direct culmination” of struggles for religious liberty in Virginia, and Thomas Jefferson and James Madison as the “leading” actors in the state and national debate, inflating their secular agenda as much as possible, while ignoring the opinions of legislative bodies and everyone else in the process. They particularly pointed to Madison’s “Memorial and Remonstrance” and Jefferson’s Bill for Establishing Religious Freedom, but ended up conflating the basic argument for disestablishing the Anglican Church in these documents with the more strict doctrine of a wall, which the two Virginians wanted to erect later on and often violated throughout their career in trying to please the majority.80 Of course, the Court used much the same historical argument as their pre-selected sources, blaming sectarian religious groups for most of the “turmoil, civil strife, and persecution” that filled Europe in the past centuries,81 ignoring the positive contributions of Puritans and other religious groups to their own view of government, and turning a blind eye to the infamous secular atrocities right before them, committed by Hitler and Stalin—both militant atheists and ardent supporters of church/state separation.82 The Court thought of religion as injurious to the public welfare, based upon the Voltairean view of history, and found it necessary to keep it away from the centers of power at all cost and provide it with no tax support. “No tax in any amount, large or small, can be levied to support religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.”
Thereafter, the concept of separation became an agenda of the Court in its quest to create a secular public arena. The next year, the Court carried out its ← 230 | 231 → intentions with legalistic precision as it declared voluntary religious instruction within the public schools “unconstitutional.” It maintained that church and state “best work to achieve their lofty aims if each is left free from the other within its respective spheres”; it is just that the “lofty aims” of the church need to work without tax dollars and outside the power of government. The case involved a local school board in Champaign, Illinois that provided space during regular school hours for students to receive religious instruction in the faith of their choice. Students could opt out of this instruction if their parents objected to their participation, but these students would need to attend secular classes during that period. In spite of the voluntary nature of the program, the Court struck it down in the name of its wall, maintaining that non-participating students would feel a sense of alienation from their classmates.83 By using this rationale, the Court clearly moved away from the democratic process in expressing the will of the majority toward emphasizing the “rights” of minorities or non-conforming individuals who feel excluded from the basic religious sentiments of the community.84 In fact, this argument became normative and fundamental to the Court in subsequent decisions and was sure to shut down any expression of religion if carried out with draconian precision. In rejecting any civil expression or endorsement of religion, Justice Sandra Day O’Connor attempted to make offense the sole criterion. “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”85 With this type of litmus test, anything the Court labeled as religious must be excluded from the public square as offensive to some minority interest group, whose “rights” not-to-be-offended now trumped the freedom of the majority to express its religious point of view.
In the numerous cases that followed, the Court attempted to eliminate religion from a public sphere that was steeped in its traditions, and the decisions began to lack consistency because of it. For example, the Court allowed chaplains to continue serving the state legislature of Nebraska, pointing to the “unambiguous and unbroken history of more than two hundred years” of this ministry and looking to the heavens for “guidance on the legislative body.”86 This kind of historical reasoning proved sufficient to create a crack in the wall and some hesitation toward establishing complete secularism in the government, allowing certain long-standing practices to form an exception to the general rule—practices like legislative and military chaplains, tax exemptions for churches, and public displays of historical and religious meaning.87 In Lynch v. Donnelly (1984), a crèche was allowed to continue standing alongside other “secular” symbols of the yuletide season. Justice Warren Burger and the Court thought it necessary to engender a “friendly spirit of good will in keeping with the season” and accommodate the ← 231 | 232 → “historical origins of this traditional event” or “National holiday,” rather than deny its connection through an extreme process of secularization.88 Justice O’Connor agreed with Burger and said the crèche was more like a museum piece in a display case. It did not endorse a particular religious message.89 And yet, five years later in Allegheny County v. the ACLU of Pittsburgh (1989), Justice Harry Blackmun decided that the role of government is not so friendly toward religious displays. The purpose of government is to secularize society or denude holidays of religious meaning.
…Christmas and Chanukah are part of the same winter-holiday season, which has attained secular status in our society.… In sum, Lynch teaches that government may celebrate Christmas in some manner or form, but not in a way that endorses Christian doctrine. Here, Allegheny County has transgressed this line. It has chosen to celebrate Christmas in a way that has the effect of endorsing a patently Christian message: Glory to God for the birth of Christ.90
In this specific case, involving two separate displays, the Court ruled against a crèche that stood alone in the “Grand Staircase” of the Allegheny County Courthouse and conveyed a direct message of specific religious meaning; but it ruled in favor of an eight-foot tall Menorah standing only a few blocks away in an adjacent public building since its religious message was denuded by the proximity of a forty-five-foot Christmas tree and a sign saluting the cause of liberty—both acting as a sufficient means of secularizing the Jewish holiday of Hanukkah in the mind of the Court.91 In both parts of the ruling, the Court provided the government with the possibility of joining the Kulturkampf but only on behalf of non-religious forces. The same type of legal reasoning followed similar cases both before and after this decision, with the Court considering the relationship of the display to cultural tradition and its proximity to other “secular” symbols or messages.92 In all its cases, the Court showed the capricious nature of their name game in declaring what was religious and what was not without much justification. Black declared the Christmas tree and the menorah to be secular; O’Connor declared the Christmas tree secular and the menorah religious; Brennan declared both symbols religious;93 but none provided much support for their position beyond, “Yes, it is,” or, “No, it is not.”
The one area the Court proved most vigilant in protecting the wall was the public school system as the most impressionable training ground for the next generation of Americans. Regarding prayer, the hostility toward the presence of religion only seemed to escalate in the course of time.94 The Court began by prohibiting the government from composing an official prayer for teachers and students as an exercise in the classroom (1962); then it prohibited the voluntary recitation of the ← 232 | 233 → Lord’s Prayer and Bible reading (1963); then it rejected a public school from creating a “moment of silence” if it included the mere mention of “voluntary prayer” as an option (1985); then it outlawed religious leaders from praying at graduation (1992); and finally it proscribed student-initiated, student-led prayers at football games (2000).95 In each case, the right not-to-be-offended was able to trump the will of the majority in its desire to express the basic religious sentiment of the community. Public school prayer was said to place undue pressure upon dissenters at a young age, “jeopardize freedom of conscience,” and place the “imprimatur” of the state upon certain religious practices in excluding others.96 The conservative members of the Court like Antonin Scalia mocked the very notion that standing in a respectful silence during a public prayer constituted serious psychological coercion. Historical establishments of old involved real “force of law and threat of penalty,” not listening to a nonsectarian prayer at a public event, where one is free to agree or disagree.97 Justice William Brennan admitted that the Founding Fathers had nothing to say about devotional exercises and were preoccupied with more serious transgressions of a religious establishment than public prayer or the type of minimal coercion that now concerned the Court.98
A number of recent cases have involved the question of “parochiaid” or the giving of financial aid to religious schools.99 The fundamental position of the Court remained committed to facilitating the advancement of secularism in the public schools, but it ran into difficulty along the way maintaining its strict wall and denying all aid to sectarian schools and was forced to compromise and moderate the stance in certain cases. In the mid–1980s, the Court rejected the idea of state-paid teachers going to sectarian schools and teaching “secular” subjects like art, music, reading, and math—fearful that these teachers might take the opportunity to sanction and promote a religious perspective in a non-secular environment.100 However, it turned around over a decade later and vitiated the earlier position in a Title I case by allowing government aid to benefit disadvantaged children and facilitate remedial instruction at religious schools, as long as sufficient safeguards were enacted to ensure compliance with secular goals.101 In most cases, the Court refused to alleviate the additional financial burden of parents who sent their children to religious schools, except through some incidental costs like tax deductions and travel expenses.102 However, in an astonishing reversal of its fundamental philosophy, the Court upheld a program in the state of Ohio that allowed parents to use vouchers in religious and non-religious schools alike.103 This decision represented the first time the Court allowed a substantial amount of money to flow from the government to private religious schools and might portend a substantial revaluation of its strict doctrine of separation in the future. ← 233 | 234 →
In the meantime, the Court continued to maintain a secular view of the government as its basic presupposition, while many of its actual decisions appeared wavering and arbitrary to outsiders.104 Justice William Rehnquist was one of the few jurists to derail the decisions, mocking their capricious nature and calling for an end to the wall as an incoherent metaphor, based upon poor history and poor legal analysis.
[A] State may lend to parochial school children geography textbooks that contain maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show a history class. A state may lend classroom workbooks, but not lend workbooks in which parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing ‘services’ conducted by the State inside the sectarian school are forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take place outside the parochial school, such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.105
It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.… Notwithstanding the absence of a historical basis for this theory of rigid separation, the wall idea might well have served as a useful albeit misguided analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been true; in the 38 years since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the “wall of separation” is merely a “blurred, indistinct, and variable barrier,” which “is not wholly accurate” and can only be dimly perceived.…The “wall of separation between church and State” is ← 234 | 235 → a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.106
Unfortunately, not even Rehnquist understood that the “bad history” went far beyond the relationship between the First Amendment and Jefferson’s wall of separation to the very telling of the American story, which centered upon the “wisdom of the Founding Fathers” as if they were born in a spiritual vacuum.
Jurists like Rehnquist and Burger abandoned the strict doctrine of separation as hostile to religion and incompatible with the basic notion of equality or fairness.107 Rehnquist moved toward a more moderate position, known as “accommodationism,” which gives to the various levels of legislative bodies in the country the right to exercise their discretionary powers in accommodating religion and subordinate concerns over the Establishment Clause to the fair treatment of religion in the public square.108 On the state level, the legislatures adopted the new perspective by providing a greater space for religious participation and expression in the form of public displays, rites, and access to government facilities and funding.109 On the federal level, the United States Congress passed the Equal Access Act in July of 1984, requiring local school boards to provide the same access to their facilities and properties that non-curricular clubs receive from the districts.110 In Board of Education v. Mergens (1990), the Court declared the act to be constitutional and ruled in favor of a Bible study club wanting like-access to the facilities of an Omaha high school.111 In Rosenberger v. University of Virginia (1995), it reiterated the position, ruling against the wall that Jefferson erected at the school and ordering the university to treat a student-run Christian organization with the same rights as any other campus organization; if the university paid the printing costs of a secular group, it must pay the same costs for a religious group.112
This type of accomodationism was not completely new to the Court. Justice Burger represented a less bellicose form of the Rehnquist position in some earlier decisions. He tried to accommodate religious tradition and admitted some difficulty in drawing a simple distinction between church and state.113 In Lemon v. Kurtzman (1971), he suggested changing the metaphor of a “wall” to a “line,” which is a “blurred, indistinct, and variable barrier.”114 He felt most judicial decisions were based on the “cumulative criteria” of many cases, assembled over a sufficient period from the nuanced interaction with the complexities of real-life problems. In this way, he pointed to three fundamental criteria that the Court had used in the past when determining matters of church/state relations.
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or ← 235 | 236 → primary effect must be one that neither advances nor inhibits religion,…; finally, the statute must not foster ‘an excessive government entanglement with religion.’ Walz, supra, at 674, 25 L.Ed.2d at 704.
These criteria resonated with the members of the Court as it tried to move forward as a more consistent body,115 but problems continued to abound in settling specific cases, indicating to some observers that the Court’s fundamental presupposition from 1947 in establishing the secular nature of the government might present an insurmountable obstacle in developing consistent verdicts and a just relationship between church and state. Is it really possible to divide religion and politics into two separate subjects? Is it possible or even desirable for human beings to lead their corporate lives in the state outside of religious concern as if fulfilling some “secular purpose”?116 Is a secular establishment really neutral toward religion in denying it serious representation in the public square? Maybe, there is a fundamental problem with all establishments, religious and non-religious alike.
In all these cases, the Court seldom engaged in any clear analysis of the nature of secularity.117 Too often it used an argumentum ex ignorantia to label an idea or symbol as secular by refusing to acknowledge its total history, ignoring any religious connection, and discounting any serious philosophical justification or problem.118 It preferred not to think of the origins of Santa Claus (Saint Nicholas), or the relation of a Christmas tree to the birth of Christ. It preferred not to think about the Puritan origins of its own conception of government, or any philosophical justification of metaphysical concepts like liberty and equality. It preferred just to assign a label and claim as secular whatever is essential to its vision of society or the government. For example, the Court decided during the 1960s that Sabbatarian or blue laws were constitutional by saying the laws serve a secular, non-religious purpose in giving people a day of rest, without explaining in any coherent manner why rest is a secular idea.119 In keeping with the charade, the Court must tell the citizens to forget about religion as members of the state: not to remember that the Lord rested after six days of work (Gn 2:2; Ex 20:11), not to recognize rest (Heb. Shabbath) as a biblical admonition, not to see religious laws as serving a societal purpose (Mk 2:27), and not to consider the simple fact that admonitions to work or rest involve metaphysical values, or some type of religious leap into transcendental or mystical knowledge, outside a simple scientific or secular view of the world.120
The argumentum ex ignorantia allowed the Court to label as secular whatever it found beneficial to the nation without explaining why a certain statute or symbol is considered non-religious. The argumentum ex ignorantia often declared the values of the Court or the values that Americans possessed as a people to be non-religious without providing any justification for doing so. The list of these “secular” matters, ← 236 | 237 → which served a “secular purpose,” included the following: safety and expeditious travel, “ordinary police and fire protection, public highways and sidewalks”;121 “solemnizing public occasions, expressing confidence in the future, and encouraging the cognition of what is worthy of appreciation in society”;122 “education”;123 “protecting the health” of children and “providing a fertile educational environment” in school;124 charitable work, social services, relieving poverty, and assisting the handicapped;125 “liberty,” “academic freedom,” “freedom from indoctrination”; the promotion of “democratic values” in public schools, which nourish “dialog” and “dissent,” not religious dogma;126 recognition of “religious and cultural diversity” and the “message of religious pluralism”;127 promoting “secular moral values” like the second table of the Ten Commandments (honoring parents and the proscription on murder, stealing, adultery, false witness, and covetousness).128 In this list, the Court merely declared through the “will to power” the secular nature of these values, without supplying any justification. In labeling all these and other values “secular,” the Court rejected the Mosaic Law, the Hammurabi Law Code, and the basic Semitic mentality of connecting moral law with the will of God.129 The Court rejected the analysis of their own Founding Fathers, who thought of religion as the basis of moral valuation and spoke of the divine laws/rights given to all humankind in nature as providing the matrix for the government’s existence and purpose.130 The Court rejected the former religious foundation of morality and the government and ignored any serious philosophical discussion to determine a new basis for the government and the moral perspective. It ignored the difficult philosophical problem of deriving “ought” from “is”—or, how to derive a transcendent commentary on life from a secular perspective of the world.131 Instead, the Court preferred to leave that problem to philosophers and lose God at the least possible expense, discounting any problematic nature to their ethical presuppositions or capricious labeling of their values as secular. It wanted to believe that ethics can exist apart from any mystical, religious contemplation of the ideal or ontic reality of the ideal, without explaining how this is possible. It preferred to argue from silence, or use the “will to power.”
This argumentum ex ignorantia continued into the Court’s disuse/misuse of history.132 The Court maintained its doctrine of separation by ignoring or displaying little knowledge of the broad history and development of western ideas. Its use of historical analysis was provincial and ethnocentric, typically relegated to the exaltation of the American government and its leaders. It displayed no real knowledge or acknowledgment of the Puritans, the real spiritual founders of the country, who formed its basic vision and view of government and spearheaded the democratic revolutions in England and New England.133 Even those jurists who acknowledged religious origins of the culture appeared to possess little ← 237 | 238 → understanding of the specifics and often denied the ongoing religious significance today as if important cultural ideas lose religious connection over time through the process of secular re-education and inculcating ignorance.134 The very doctrine of church/state separation demanded a rejection of positive religious influence from the past and constant reminder of its shortcomings, as the sponsor of persecution in society. The Court preferred to spin its own story rather than engage in serious historical analyses concerning the evolution of ideas and recognize any complexities or entanglements. The Court liked to tell and reiterate a story that was more false than true, that the early settlers came to this country fleeing religious persecution to provide a negative view of the church and its political influence.135 The Court told this story to establish its secular concept of church/state separation. It wanted to present freedom as the opposite of the religious impulse and sentence religion to the margins of society as the source of “divisiveness,” especially within the realm of politics.136 Liberty must be understood as non-religious, even anti-religious.137
The Court’s historical understanding of church/state separation also suffered from the same limitations, displaying little understanding of the broad history and problems of the doctrine. Typically, the Court centered its historical analysis upon Jefferson and Madison as the “architects of the First Amendment”—the only Founding Fathers who held to the strict doctrine.138 It ignored the anti- Semitic/anti-Christian motives behind Jefferson’s position, the inconsistent political careers of both Virginians in patronizing the majority’s religious sensibilities,139 and preferred to select and cite works like Madison’s “Detached Memoranda” that “proved” their strict position. In all this, the Court failed to acknowledge any dark side to the doctrine of church/state separation. It preferred to think of persecution as a religious disease but failed to note twentieth-century regimes like the Nazis and Communists, who also erected the same French concept of absolute separation in an attempt to destroy the church and slaughtered tens of millions of people in the name of developing an a-theistic, secular state.140 Most members followed the same doctrine of secularization (laïcité) as these regimes. They did so in a more passive way, performing a “quiet euthanasia,” without resorting to militant atheistic propaganda in state-sponsored institutions, or inviting a reaction. They tried to distance their policy from the Nazis and Communists, but the net effect of refusing to represent religion in the burgeoning power of the state and denying its positive social influence is not much different in the long run. (The French idea was originally conceived as a means of forging a fraternité of citizens as an alternative to the body of Christ. The French Revolution denuded the culture of all Christian symbols and exchanged them for a new secular identity under the cocarde tricolore of the nation-state. In a most telling moment, Abbé Grégoire and the National Assembly offered the Jewish people citizenship as long as they ← 238 | 239 → underwent a process of régénération, or leave their distinctive religious community behind and adopt French ways and customs.141 The process certainly worked as Jews became a secular people after this time. The Third Republic made the process of secularization (laïcité) and the “Separation of the Churches and the State” the official modus operandi of the state at the end of the nineteenth and beginning of the twentieth century, and the French people were transformed through this process into secular subjects of the state, just like the Jewish people.142)
The Court engaged in a great deal of double-talk about its role in the secularization of the culture,143 but it clearly endorsed a secular message and picked the secular side of the cultural war.144 Occasionally, it ran into a political hot potato and found it necessary to retreat from the basic agenda. For example, the Court engaged in political calculations by refusing to eliminate the Pledge of Allegiance from the public schools. It certainly knew that this devotional exercise was much more coercive than public prayer as it invited the audience to participate with their hands over their hearts, their eyes wide open, and their mouths confessing sacred words, binding the people to the nation, not just asking them to stand and listen.145 This oath (Lat. sacramentum) was intended to bind the audience’s allegiance to the state and confess the unity of the nation in serving the will of God. The phrase “under God” was added to the pledge during the Eisenhower administration in a deliberate and clear attempt to withstand the godless etatism of the Communists, but the Court found it difficult to expunge a direct violation of its strict interpretation, given the power of the civil religion and the basic desire to promote devotion to the state. Justice William Brennan attempted to reconcile the pledge with the secular establishment by claiming that the oath served a secular purpose and the phrase “under God” had lost all “religious significance” through “rote repetition.” He suggested that the public schools substitute the pledge, patriotic material, and a catechism on national values for the former devotional exercises in the Bible and prayer.146 His suggestion worked within the basic schema of the French Revolution and the Third Republic by wanting the secular state to use its power and replace the former devotion to God with the new religion on the block—etatism.
The American Civil Liberties Union
The American Civil Liberties Union (ACLU) became the principal group that sponsored the separation of church and state in the courts during the twentieth century, beginning with the famous “Monkey Trial” in the summer of 1925. The group was founded just a few years earlier in January of 1920 and has grown into a formidable force ever since, boasting over 500,000 members, 200 staff attorneys, ← 239 | 240 → hundreds of local chapters, and thousands of volunteers on its latest website. The group started as the brainchild of one man, Roger Baldwin, who grew up in a Unitarian family within the inner circle of Boston and attended Harvard University, where he received a B.A. and M.A. in Social Science and then began a career in social work.147 He developed into a social activist during World War I, working with the American Union Against Militarism (AUAM) in the spring of 1917 and forming his own group, the National Civil Liberties Bureau (NCLB), in the fall of that year to fight against the war and defend the rights of protestors.148 Baldwin rejected the use of force to resolve conflicts and was sentenced to a year in prison for resisting the draft and rejecting any form of alternative service as a consistent pacifist, who refused to aid and abet the war effort in any way.149
After the war, he decided to expand the scope of his activities beyond the basic mission of the NCLB and formed the ACLU to protect the civil liberties of all citizens, although his concept of civil rights was marked by a social conscious that gravitated toward left-wing political interests. The ACLU particularly focused in its early days upon the “rights” of workers to form unions.150 Baldwin became an influential player in some left-wing groups that had strong ties with Communism in America and Russia and even served on the board of the Kuzbas Industrial Colony, which tried to plant collective communities in the Urals.151 In the 1920s and 1930s, he described his political views as “anti-capitalist and pro-revolutionary,” sympathetic to the “economic system being worked out in Soviet Russia,” where “civil liberties [are] far greater than elsewhere in the world,” and wrote a book, Liberty Under the Soviets, defending the repressive measures of the Soviet Union as “weapons of struggle in a transition period to socialism.”152 Even though Baldwin never joined the Communist party, two original members of the ACLU, William Z. Foster and Elizabeth Gurley Flynn, actually served later on as chairs of the party;153 and the government found it necessary to raid the offices of the ACLU periodically over concerns about subversive Communist activities. Because of this, the ACLU found it necessary to moderate its public image during the heights of the Red Scare, rejecting open communists from joining the group and serving on the board.154
The connection with left-wing political goals engendered a tension within the purposes of the ACLU. The group took a leading role throughout its history in defending the cause of freedom and individual liberty, and yet often worked at cross-purposes in expanding the role of the federal government and reducing the space in which the exercise of liberty can operate.155 Under the Free Exercise Clause, the ACLU defended the rights of non-traditional groups to practice their peculiar religious faith against the tyranny of the majority, earning considerable praise from those who champion religious liberty.156 Under the Establishment ← 240 | 241 → Clause, the ACLU tried to establish an “a-theocracy,” or its belief in secularity as the ideology of the American people by cleansing the government of all religion, using the public school system to inculcate its beliefs in secularity, and denying any modicum of representation to religious ideas and symbols in the public arena. It interpreted the First Amendment as prohibiting the public endorsement of a religious viewpoint and establishing secularity as the modus operandi of the government. Public values, symbols, rituals, and access must be reserved as a forum for representing secular people and their ideas.157
The doctrine of church/state separation became the fundamental means used by secular people in the modern world to refashion society into their image. The doctrine was designed during the times of the Reformation to protect the church from the corrupting powers of the state, but the French Enlightenment turned the doctrine around and used it to marginate the power of the church, eliminate its place in society, and create another version of life in its stead. This motive prompted Jefferson to erect a wall of separation between the two realms and use public education to forward his anti-Christian agenda. He and Madison were unable to eliminate the presence of the church in the federal, state, and local governments during their lifetime, but sympathetic jurists found it possible to resurrect this conception years later and “reinterpret” the words of the Constitution to align with the doctrine of the Enlightenment and their own secular, deistic, or a-theistic point of view. Today, secular groups like the ACLU represent this new interpretation of the Court in a most severe and draconian manner. They might work to defend individual liberties for those who live on the margins of society, but they also work to eliminate the space where those liberties function by consigning more and more power to the state in advancing a left-wing agenda. Christians tend to accept the role of the government in secularizing society, offering little resistance and preferring the NT’s image of the church as a remnant in this world. Muslims have no tradition of church/state separation and fight the introduction of this process of secularization in the Middle East, committing horrible acts of brutality in an attempt to protect their religious traditions and culture. The terrorists and the many who sympathize with their cause do not want the “Great Satan” to destroy the central place of the Mosque as it destroyed the role of its own church in western civilization.158
1. The Writings of James Madison, Gaillard Hunt (ed.) (New York and London: G. P. Putnam’s Sons, 1910), 1.230–31; “To Rev [Jasper] Adams” (1832), in Writings, 9.485; Ralph L. Ketcham, “James Madison and Religion: A New Hypothesis,” in James Madison on Religious ← 241 | 242 → Liberty, Robert S. Alley (ed. and intro.) (Buffalo, NY: Prometheus Books, 1985), 175–80; Garrett Sheldon, “Religion in the Thought of James Madison,” in Faith and Politics in America, Joseph Prud’homme (ed.) (New York: Peter Lang, 2011), 93, 96, 112; Lance Banning, “James Madison, The Statute for Religious Freedom, and the Crisis of Republican Convictions,” in The Virginia Statute for Religious Freedom: Its Evolution and Consequences in American History, Merrill D. Peterson and Robert C. Vaughan (eds.) (Cambridge: Cambridge University Press, 1988), 110. Like Jefferson, he was baptized in the Anglican Church at a local parish.
2. Garrett Sheldon, “Religion in the Thought of James Madison,” in Faith and Politics in America, Joseph Prud’homme (ed.) (New York: Peter Lang, 2011), 91–95; Mary-Elaine Swanson, “James Madison and the Presbyterian Idea of Man and Government,” in Religion and Political Culture in Jefferson’s Virginia, 122–28.
Many young men were similarly stimulated by Witherspoon’s teaching on law and government, as is witnessed to by the fact that so many of them later became active in American politics, including a president of the United States (Madison), a vice-president, ten cabinet officers, twenty-one senators, thirty-nine congressmen, a Supreme Court justice, an attorney general of the United States, and twelve governors. It has been estimated that nearly one-fifth of the signers of the Declaration of Independence, one-sixth of the delegates to the Constitutional Convention, and one-fifth of the first Congress under the Constitution were graduates of the College of New Jersey [Princeton]. Ibid., 122.
James Madison, John Adams, and Montesquieu were the most significant individual figures in influencing America to adopt a system of checks and balances. Their analysis was based upon a dark view of human nature. John Witherspoon also made this connection and probably influenced Madison in adopting and stressing the system. E.g., The Works of the Rev. John Witherspoon, John Rodgers (intro.) (Philadelphia, PA: William N. Woodward, 1802), 4.351; Sheldon, “Religion in the Thought of James Madison,” 97–99.
3. Jefferson, Autobiography, L 1.58; Notes on Virginia, L 2.219; Mark A. Beliles, “The Christian Communities, Religious Revivals, and Political Culture of the Central Virginia Piedmont, 1737–1813,” in Religion and Political Culture in Jefferson’s Virginia, 4–5, 18–20; Daniel Dreisbach, “Church-State Debate in the Virginia Legislature: From the Declaration of Rights to the Statute for Establishing Religious Freedom,” in Religion and Political Culture in Jefferson’s Virginia, Garrett Ward Sheldon and Daniel Dreisbach (eds.) (Lanham, MD: Rowman and Littlefield Publishers, 2000), 142; Michael McConnell, “Taking Religious Freedom Seriously,” First Things 3 (1990) 30. L stands for the Writings of Thomas Jefferson, Andrew A. Lipscomb (ed.) (Washington, D. C.: The Thomas Jefferson Memorial Association, 1905).
4. “To William Bradford” (April 1, 1774), in Papers of James Madison, 1.111–12. See Ibid., 1.170–72; Rob Boston, “James Madison and Church-State Separation,” Church & State 54/3 (2001): 10; Sheldon, “Religion in the Thought of James Madison,” 101 138.
5. “Declaration of Rights and Form of Government in Virginia [16 May–29 June 1776],” in Papers, 1.170–79; Bellies, The Christian Communities,” 20–21; Dreisbach, “Church-State Debate,” 139; Robert S. Alley, “The Despotism of Toleration,” Madison on Religious Liberty, 147; Sheldon, “Religion in the Thought of James Madison,” 102. ← 242 | 243 →
6. “From John Page” (Aug. 23, 1785), in Papers of Thomas Jefferson, 8.428–29; Richard Beale Davis, Intellectual Life in Jefferson’s Virginia, 1790–1830 (Chapel Hill, NC: University of North Carolina, 1964), 128–31; Sheldon, “Religion in the Thought of James Madison,” 102–3; Dreisbach, “Church-State Debate,” 149–50. The Episcopalian Church was in favor of Henry’s bill. Many Presbyterians were initially for it and then turned against it. “To James Monroe” (April 12, 1785), in Papers, 2.261; Banning, “James Madison, …,” 123; Sheldon, “The Religious Thought of James Madison,” 103. Henry was a Christian and conducted a campaign throughout the state warning of the dangers of Deism undermining the faith. Thompson, “Perceptions of a ‘Deist Church’ in Early National Virginia,” 46–47.
7. “Memorial and Remonstrance Against Religious Assessment,” in Writings of James Madison, G. Hunt (ed.) (New York and London: G. P. Putnam’s Sons, 1901), 2.188. Joseph Prud’homme provides a good counter-example to Madison’s extreme statement, showing how John Bray and Maryland’s establishment actually promoted toleration and religiosity. “Rev. Thomas Bray, Colonial Maryland, and the Role of Religion in Public Life,” in Faith and Politics in America, 41–48.
8. Ibid., 186–87.
9. “To the Honorable the General Assembly of the Commonwealth of Virginia A Memorial and Remonstrance” (ca. 20 June 1785), in Papers, 8.298–99; Donald Drakeman, “Religion and the Republic: James Madison and the First Amendment,” Journal of Church and State 25/3 (1983): 436; Belilies, “The Christian Communities,” 24; Banning, “James Madison,…,” 109, 122–23; Gary Wills, James Madison (New York: Times Books, 2002), 16–18; Ralph Ketcham, “James Madison and Religion—A New Hypothesis,” Journal of the Presbyterian Historical Society 39/2 (1960): 81.
10. Jefferson and Madison on Separation of Church and State: Writings on Religion and Secularism, L. Brenner (ed.) (Fort Lee, NJ: Barricade, 2004), 125–26; Drakeman, “Religion and the Republic,” 233; Wills, James Madison, 39; Philip Hamburger, Separation of Church and State (Cambridge, Mass. And London: Harvard Universit Press, 2002), 104–5.
11. The Debates and Proceedings in the Congress of the United States, J. Gales and W. W. Seaton (eds.) (Washington, DC: Gales and Seaton, 1834), 1.796; Drakeman, “Religion and the Republic,” 233–35. Barbara McGraw’s Rediscovering America’s Sacred Ground contains a good summation of the various drafts in Appendix C, pp. 199–202.
12. Ibid., 1.451–52; John T. Noonan, The Believer and the Powers That Are (New York: Macmillan Publishing, 1987), 124. Cf. Levy, The Establishment Clause, 7, 86ff., 95, 98–99. The Anti-Federalists of Virginia read the amendment in this way and rejected it, because they wanted to exclude religion from receiving any federal support. “The 3rd amendment [the First Amendment], recommended by Congress, does not prohibit the rights of conscience from being violated or infringed; and although it goes to restrain Congress from passing laws establishing any national religion, they might, notwithstanding, levy taxes to any amount, for the support of religion or its preachers; and any particular denomination of Christians might be so favored and supported by the General Government, as to give it a decided advantage over others, in process of time render it as powerful and dangerous as if it was established as the national religion of the country.” Journal of the Senate of the Commonwealth of Virginia; Begun and Held in the City of Richmond on Monday, the 19th day of October,…1789,… (Richmond, VA: Thomas W. White, 1828), 62. ← 243 | 244 →
13. Michael McConnell, “Why ‘Separation’ Is Not the Key to Church-State Relations,” The Christian Century 106/2 (1989): 43.
14. Of course, Article VI, sect. 3 rejected religious tests for holding office in the federal government.
15. “To Frederick Beasley” (Nov. 20, 1825), in Writings, 9.230.
16. See “Thanksgiving Proclamations” (July 9, 1812, July 23, 1813, Nov. 16, 1814, and March 4, 1815), in A Compilation of the Messages and Papers of the Presidents, James D. Richardson (ed.) (New York: Bureau of National Literature and Arts, 1905), 1.513, 532–33, 558, 560–61; “Special Message to Congress” (Feb. 18, 1815) and “Seventh Annual Message” (Dec. 5, 1815), in Writings, 8.326, 343; Mary-Elaine Swanson, The Education of James Madison: A Model for Today (Montgomery, AL: The Hoffman Education Center for the Family, 1992), 262–65; Sheldon, “Religion in the Thought of James Madison,” 104–7.
17. “A Proclamation” (July 9, 1812), in Messages and Papers, 1.513.
18. “Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers” (no. 84) and “A Bill for Appointing Days of Public Fasting and Thanksgiving” (no. 85), in Papers of Thomas Jefferson, 2.555–56; Drakeman, “Religion and the Republic,” 441; “James Madison and the First Amendment of the Religion Clause,” in Religion and Political Culture in Jefferson’s Virginia, 226.
19. See n.16; Boston, “James Madison and Church-State Separation,” 14; Sheldon, “Religion in the Thought of James Madison,” 106; Cord, “Mr. Jefferson’s ‘Nonabsolute Wall,’” 167, 183; Drakeman, “James Madison and the First Amendment,” 226. Cf. with George Washington’s “Proclamation: A National Thanksgiving” (Oct. 3, 1789), in Messages and Papers, 1.64–65.
20. “To Robert Walsh” (March 2, 1819) and “To Edward Livingston” (July 10, 1822), in Writings, 8.431–32; 9.101–103; “Detached Memorandum,” in James Madison on Religious Liberty, 90; Drakeman, “Religion and the Republic,” 437; “To Reverend Jasper Adams” (Spring, 1833), 9.484–88.
21. “To Jasper Adams” (Spring, 1833) 9.485. In contrast to this statement, as well as the belief of most Americans at the time, he says elsewhere that Catholicism is not innately hostile to republicanism. Papers of James Madison, 15.432–33 (Jan. 1, 1795). Cf. Strehle, The Egalitarian Spirit of Christianity, 250–53.
22. Annals of Congress (1789–90): Proceedings and Debates…, at the First Session of Congress, 730–31 (Aug. 15, 1789) and 755 (Aug. 17, 1789); “To Edward Livingston” (July 10, 1822) 9.101–103; Alley, “The Despotism of Toleration,” 147; “The Protestant Establishment,” in James Madison on Religious Liberty, 253–55. Jaspar Adams and so many others thought Christianity served as the foundation of civil, legal, and political institutions.
23. “To Edward Livingston” (July 10, 1822) 9.100–103; “Detached Memorandum,” 93–94; Drakeman, “James Madison and the First Amendment,” 226; “Religion and the Republic,” 440; Leo Pfeffer, “Madison’s ‘Detached Memoranda’: Then and Now,” in The Virginia Statute for Religious Freedom, 304–5. Madison also exhibits his proclivity for church/state separation by opposing theological instruction and prayer at public schools. His motives are more difficult to discern than Jefferson’s. Maybe, his strict position represents his attempt to ride a consistent paradigm to its extreme like many Virginia Baptists, rather than any underlying malice toward the Judeo-Christian tradition. The only clear hint of animosity ← 244 | 245 → is his opposition to the church acquiring property. He expresses concern over the church obtaining too much power, and thinks it is necessary for public authorities to exact measures and limit church property and wealth. As president, he vetoed a bill reserving a parcel of public land for the Baptist Church and its usage, claiming it violated the First Amendment. “To the House of Representatives” (Feb. 28, 1811) and “To Edward Everett” (March 19, 1823), in Writings, 8.133; 9.126–27; Pfeffer, “Madison’s ‘Detached Memorandum’,” 287–88; Jefferson and Madison on Separation, 51, 133, 207, 232, 263–68; Drakeman, “Religion and the Republic: James Madison and the First Amendment,” 238; Ketcham, “James Madison and Religion,” 81–82; Hamburger, Separation of Church and State, 182–83; Frank Lambert, The Founding Fathers and the Place of Religion in America (Princeton, NJ: Princeton University Press, 2003), 271–73; Leonard Levy, The Establishment Clause: Religion and the First Amendment (Chapel Hill, NC: University of North Carolina Press, 1994), 123.
24. Prud’homme, “Rev. Thomas Bray,…,” 16–17.
25. “To Jasper Adams” (Spring, 1833) 9.487; Sidney E. Mead, “Neither Church nor State: Reflections on James Madison’s ‘Line of Separation’,” Journal of Church and State 10/3 (Aut. 1968): 350–51. Some consider this metaphor of a “line” less stringent than Jefferson’s “wall,” but it seems unlikely that Madison intended to depart from a strict position in using the term. The line is certainly not “blurred, indistinct, and variable” in his mind as Justice Warren Burger suggested in Lemon v. Kurtzman (1971).
26. C. Bradley Thompson, John Adams and the Spirit of Liberty (Lawrence: University Press of Kansas, 1998), 93, 252–53, 260.
27. The Works of John Adams (Freeport, NY: Books for Libraries, 1969), 4.292–93, 559. He can make an offhand comment about the importance of the Christian religion, but such a testimony is out of character with the overall secular direction of his work. Cf. Ibid., 4.283. His religion is much like Jefferson’s and other Deists of the day, except for a belief in some of the biblical miracles. He favored toleration of different religious persuasions, but he accepted the Congregationalist establishment of his constituency, maybe as a fact of life or a necessary political compromise. Patricia Bonomi, Under the Cope of Heaven: Religion, Society, and Politics in Colonial Virginia (New York: Oxford University Press, 1986), 103.
28. Ibid., 4.477–78, 491, 541, 548–49; 5 passim; 6.217. He sees the world as marching toward perfection in science, commerce, philosophy, and religion. Athens developed a popular form of assembly during the time of Solon in the sixth century B.C.E., and Kleisthenes sought to involve all of Attica in the decision-making process with slogans like isegoria (equality of speaking) and perhaps demokratia (people-power). S. Hornblower, “Creation and Development of Democratic Institutions in Ancient Greece,” Democracy: The Unfinished Journey 508 BC to AD 1993, J. Dunn (ed.) (Oxford: Oxford University Press, 1992), 4–8. The philosophers and intellectuals of the day enshrined these ideas in their works for future generations to study and to follow. In particular, Aristotle advanced the doctrine by lending his considerable authority to the polity during Hellenistic times and providing a possible source for its dissemination throughout the world. He certainly preferred the collective wisdom of the masses to the wantonness of one man. He accorded the “mass of freemen and citizens” the right to select officers and magistrates, even if most were not worthy to run. Aristotle’s Politics helped further the cause as it became available throughout Italy at the end of the thirteenth. Aristotle, Politics, in The Basic Works of Aristotle, R. McKeon (ed.), ← 245 | 246 → (New York: Random House, 1941), 1281a, 1281b, 1286a, 1286b, 1318 (1190–91, 1200, 1268–69). At the end of the eleventh century, many Italian cities to the north began to form republics in accordance with the polis of Athens and Aristotle’s vision. They rejected the divine right of papal and imperial authorities, complaining about their abuse of power, lack of interest in local affairs, and unconcern for the welfare of the average citizen. They preferred to elect their own officials and councils at the local level. Q. Skinner, “The Italian City-Republics,” in Democracy, 57–63. The most celebrated works of the day—Marsilius’ Defender of Peace (1324) and Machiavelli’s Discourses (1520?)—show a decided Aristotelian influence in their push for democratic ideals. Marsilius of Padua, the defender of peace (New York: Columbia University Press, 1956), 45–47; N. Machiavelli, Discourses, B. Crick (ed.), L. J. Walker and B. Richardson (trans.) (New York: Penguin Books, 1998), 1.20, 58 (167–68, 255–57). However, a problem develops in the course of this study when one tries to connect these early sources with what transpires in later times. The parallel is striking and interesting and might have served in the nebulous realm of a remote cause, but there is little, concrete proof that the ideals of Athens or Italy served as the basic impetus toward the development of democracy in the world to come. Huguenots and the Puritans pointed to religious concerns in their push for democracy in the sixteenth and seventeenth centuries, not Athenian or Italian antecedents. If anything, the primary sources of modern democracy point more toward Germanic roots when searching for a cultural identity and only mention Graeco-Roman antecedents later on as an anachronistic or scholastic device to justify what has developed for other reasons. Of course, this criticism does not mean that the Graeco-Roman world had no influence whatsoever in shaping modern times. Its doctrines of natural law and mixed government make an important contribution to the modern notion of countervailing political forces. Strehle, Egalitarian Spirit of Christianity, 35 (n.134), 92, 107, 112, 120 (nn.119–20), 134–36, 149–50.
29. Ibid., 4.462,465–66.
30. Ibid., 4.385ff. (chap. 4), 416ff.; 5.95, 183; 6.4.
31. Ibid., 4.428.
32. Ibid., 4.358, 380–81, 440.
33. Ibid., 4.290, 298, 370, 462–63. Certain passages were quoted by Jefferson and other opponents to prove that Adams believed in a monarchy, but these citations clearly overlooked the general context of the work and his overall ideas. David McCullough, John Adams (New York: Simon and Schuster, 2001), 429ff., 443–44. Adams rejects hereditary government and hierarchical rule. He feels the people have a right to appoint a monarch for life, but they never abdicate their right to depose a ruler if it is necessary. Works, 4.276–77, 358–59; 6.117. Adams does not like to quibble over words like “king,” “president,” or “republic” since so much depends on the context in which these terms are used. Ibid., 5.452–54; 6.183. He accepts a certain hierarchy of birth, genius, and wealth among the people but grants citizenship to all “people” who owned at least a small amount of property. Ibid., 4.393ff., 397, 414; 5.456–59. See Thompson, John Adams and the Spirit of Liberty, 93, 167, 169, 172–3, 183–4, 207, 248, 252, 253, 260, 266ff., 272–3.
34. C. Bradley Thompson points to certain unpublished papers where Adams explains his method as following the empirical reasoning found in Bacon and Newton. His method is much like Machiavelli’s, who created an empirical political science, making inductions ← 246 | 247 → from historical examples, rather than fashioning a system out of pure deduction. John Adams and the Spirit of Liberty, 110–13, 123.
35. This point is the constant refrain of American postmodernists. It is a truism, even if it can be over-exercised. Stanley Fish, Doing What Comes Naturally (Durham, NC and London; Duke University Press, 1989), 129, 301, 304. Of course, Adams rejects many of the literal tenets of Calvinism, as well as the need for divine revelation to guide us in finding our way. Adams believes that “[God] has given us Reason, to find the Truth, and the real Design and true End of our Existence,” along with “all Endeavors to promote them agreeable to our minds.” Diary and Autobiography of John Adams, L. H. Butterfield (Cambridge, MA: The Belknap Press, 1961), 1.43; Thompson, John Adams and the Spirit of Liberty, 14, 86. These statements cause some scholars like Thompson to discard his Puritan background and place him more within the enlightened views of “Bacon, Newton, and Locke.” Other scholars like Bernard Bailyn and Edmund S. Morgan still consider him a Puritan first and foremost and cite his Protestant work ethic as a good case in point. Ibid., 3–5; Bailyn, “Butterfield’s Adams: Notes for a Sketch,” William and Mary Quarterly 19/2 (1962): 244–45; E. S. Morgan, “John Adams and the Puritan Tradition,” New England Quarterly 34/4 (1961): 523–27. Adams is clearly a son of the Enlightenment in his outward profession, but like all its children he remains indebted to the past influences of a Christian culture, just like Bacon, Newton, and Locke, who also are difficult to classify with one simple term.
36. Works, 4.356, 406, 407; 5.40, 49; 6.57, 61, 97, 99, 211ff. He is most interested in the passions that drive men to seek power—the “notoriety,” the “celebration,” the admiration and applause of others, etc. Thompson, John Adams and the Spirit of Liberty, 158–60. The Founding Fathers were very distrustful of human nature in general. Evans, The Theme is Freedom, 98ff.
37. In concert with his secular interpretation of Adams, Thompson discounts any Puritan influence upon Adams’ view of human nature. John Adams and the Spirit of Liberty, 149.
38. John Witte, “‘A Most Mild and Equitable Establishment of Religion’: John Adams and the Massachusetts Experiment,” Journal of Church and State 4/2 (1999): 234; Coker, “Isaac Backus and John Leland,” 314, 325. See chap. 6, pp. 212–13, n.147 for further discussion on the Baptists and their position.
39. Adams, Works, 4.241–42, 245, 251, 260–62; Witte, “‘A Most Mild and Equitable Establishment’,” 226–27. Quakers are exempted from taking the oath. Later on, Adams expresses regret over this anti-Catholic provision.
40. Ibid., 4.221; Witte, “‘A Most Mild and Equitable Establishment’,” 216, 226.
41. Art. III; Witte, “‘A Most Mild and Equitable Establishment’,” 228–31, 242. Apparently, Adams told Isaac Backus, “We must as soon expect a change in the solar system as to expect [the Congregationalists] would give up their establishment.” Isaac Backus on Church, State, and Calvinism, 12; McLoughlin, New England Dissent, 1.560.
42. Adams, Works, 2.399.
43. In his writings, he sees religion and morality as a foundation of society and thinks the government should encourage right belief and conduct. Works, 4.293; 9.636. As president, Adams emphasized the need for national repentance in his proclamations of prayer and thanksgiving, unlike Washington and closer to the original idea of a Puritan-style Jeremiad. “Proclamation” (March 23, 1798 and March 6, 1799), in Messages and Papers, ← 247 | 248 → 1.268–70, 284–86; Works, 9.291; Charles Ellis Dickson, “Jeremiads in the New American Republic: The Case of National Fasts in the John Adams Administration,” The New England Quarterly 60/2 (1987): 188, 191.
44. Equal Rights in Religion. Report of the Centennial Congress of Liberals, and Organization of the National Liberal League (Boston, MA: The National Liberal League, 1876) 22, 37, 175; Hamburger, Separation of Church and State, 293ff.; Dreisbach, Thomas Jefferson and the Wall of Separation, 97. Abbot was a former Unitarian minister, who developed an extreme disdain for traditional Christian teachings. Some liberal religious groups like the Reform Jews joined their number in calling for a strict separation of church and state, while others were militant agnostics. Tisa Wenger, “The God-in-the-Constitution Controversy: American Secularism in Historical Perspective,” in Comparative Secularisms, Linell E. Cady and Elizabeth Hurd (eds.) (New York: Macmillan, 2010), 97–101.
45. Ibid., 145.
46. Ibid., 72.
47. Ibid., 80.
48. Ibid., 135.
49. Ibid., 126, 129.
50. Ibid., 164.
51. Ibid., 5.
52. Ibid., 7.
53. American State Papers Bearing on Sunday Legislation, W. A. Blakely (New York: The National Religious Liberty Association, 1891), 202–4.
54. “Annual Message (Dec. 7, 1875), in The Papers of Ulysses S. Grant, John Y. Simon (ed.) (Carbonsville and Edwardsville, IL: Southern Illinois University Press, 1967), 26.388; New York Tribune (Dec. 8, 1875) 6.
55. “Two ‘Favorite Sons’,” in The Nation (March 16, 1876) 173–74; Steven K. Green, “The Insignificance of the Blaine Amendment,” Brigham Law University Review 2008/2 (2008): 322; “The Blaine Amendment Reconsidered,” The American Journal of Legal History 36/1 (1992): 54; Mark Edward DeForrest, “An Overview and Evaluation of State Blaine Amendments: Origins, Scope, and First Amendment Concerns,” Harvard Journal of Law and Public Policy 26 (2003): 565–66. When Blaine lost the presidential nomination of his party, he lost interest in his amendment and did not participate in the final vote, showing the proposal was a political ploy. Liberals were not pleased with the amendment because the separation was not total and allowed Protestants to continue dominating the school system. Hamburger, Separation of Church and State, 298–300.
56. Congressional Record [44th Congress, 1st session, 4/1 (Dec. 14, 1785)] 205. See Cushing Strout, “Jeffersonian Religious Liberty and American Pluralism,” in Virginia Statute for Religious Freedom, 215; Green, “The Insignificance of the Blaine Amendment,” 295. A number of people were concerned about the question of states’ rights, or allowing the federal government to meddle in education. Blaine knew he was changing the First Amendment in imposing strict separation and applying it to the states. Few saw the Fourteenth Amendment as applicable to this issue at the time. It took two more decades before the Supreme Court applied the Bill of Rights to the states. Green, “The Blaine Amendment ← 248 | 249 → Reconsidered,” 39, 50, 68; “The Insignificance of the Blaine Amendment,” 320–21; DeForest, “An Overview and Evaluation,” 604.
57. Hamburger, Separation of Church and State, 10–11; Toby J. Heytens, “School Choice and State Constitutions,” Virginia Law Review 85/1 (2000): 135–37; DeForrest, “An Overview and Evaluation,” 561; Green, “The Insignificance of the Blaine Amendment,” 296–98, 304, 312–15. John Jeffries and James Ryan say,
At the time of the Revolution, 30,000 Catholics lived in the new United States, barely one percent of the population. By 1830, that number had increased to 600,000. By 1850, there were 1.6 million U.S. Catholics, and twice that many ten years later. The number quadrupled to twelve million in 1900, and doubled again by 1930. This population was mostly immigrant, in the early days mostly Irish, and mostly poor. “A Political History of the Establishment Clause,” Michigan Law Review 100 (2001): 299–300.
Of course, the papacy’s rejection of modernity, democracy, and the American way of life helped in fueling the Protestant concerns. R. L. Moore, Religious Outsiders and the Making of Americans (New York: Oxford University Press, 1986), 49, 57, 69.
58. Timothy L. Smith, “Protestant Schooling and American Nationality, 1800–1850,” The Journal of American History 53/4 (1967): 679–81; Stephen Macedo, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, MA and London: Harvard University Press, 2000), 60–63; Jefferies and Ryan, “A Political History of the Establishment Clause,” 297, 302; DeForrest, “An Overview and Evaluation,” 563–64; Green, “The Insignificance of the Blaine Amendment,” 316–17; Hamburger, Separation of Church and State, 10–11, 204–18, 234ff. American Catholics tried to show their love of freedom and rejected the pope’s temporal powers over the country.
59. Benjamin Rush, “Thoughts Upon the Mode of Education Proper to a Republic,” in Essay on Education in the Early Republic, Frederick Rudolph (ed.) (Cambridge, MA: Harvard University Press, 1965), 17–18; Noah Webster, “On the Education of Youth in America,” in Essays on Education, 65–66; Green, “The Insignificance of the Blaine Amendment,” 300–2; “The Blaine Amendment Reconsidered,” 45.
60. Lymann Abbott, “Secular and Sectarian Schools,” Harper’s New Monthly Magazine 40 (May, 1870) 910; Green, “The Blaine Amendment Reconsidered,” 41; “The Insignificance of the Blaine Amendment,” 303; Hamburger, Separation of Church and State, 220–29, 372–75.
61. “The Alarm About the Schools,” in The Nation (Dec. 16, 1785) 383–84; “The Catholics and the Free Schools,” Harper’s Weekly 20/992 (Jan.1, 1876): 11; “The Rights of the Church Over Education,” Catholic World 21/126 (Sept. 1875): 738–39; “Anti-Catholic Movements in the United States,” Catholic World 22/132 (March 1876): 817, 822; “The Catholic Church in the United States,” Catholic World 23/136 (July 1876): 446–49; Diane Ravitch, The Great School Wars: A History of the New York City Public Schools (New York: Basic Books, 1988) passim; Green, “The Blaine Amendment Reconsidered,” 41–43, 51–52; DeForrest, “An Overview and Evaluation,” 565, 569. The Senate version of the amendment protected the “reading of the Bible” in the common schools. It wanted to appease those who felt the secularization process was proceeding too far. ← 249 | 250 →
62. Heytens, “School Choice and State Constitutions,” 134; DeForrest, “An Overview and Evaluation,” 554–55, 567–68, 573, 576; Green, “The Blaine Amendment,” 67; “The Insignificance of the Blaine Amendment,” 296–98.
63. Green, “The Insignificance of the Blaine Amendment,” 305–9; “The Blaine Amendment Reconsidered,” 46–47. Horace Mann wanted to include every Christian and spurned sectarian doctrines in his vision for the common schools. Mann also insisted on reading the Bible without comment. Horace Mann, et al., Annual Report on Education (Boston, MA: Horace B. Fuller, 1868), 129–30 (Report of 1848); Noah Feldman, “Non-Sectarianism Reconsidered,” 28 Journal of Law and Politics 65 (2002): 80–81; Jefferies and Ryan, “A Political History of the Establishment Clause,” 298; Green, “The Insignificance of the Blaine Amendment,” 305–7.
64. For further discussion of this and other matters in this section, see W. M. McAfee, “Historical Context of the Failed Federal Blaine Amendment of 1876,” First Amendment Law Review 2 (2003): 1–22; Thomas E. Buckley, “A Mandate for the Anti-Catholicism: The Blaine Amendment,” America: The National Catholic Weekly 191/8 (2004): 18–21; Hamburger, Separation of Church and State, 323–28, 334.
65. Hamburger, Separation of Church and State, 285, 335ff.
66. G. Bassham, Original Intent and the Constitution: A Philosophical Study (Savage, MD: Rowman and Littlefield Publishers, 1992), 7–11.
67. Home Building & Loan Association v. Blaisell 290 US 442–43.
68. Donald L. Drakeman, “Reynolds v. United States: The Historical Construction of Constitutional Reality,” Constitutional Commentary 21 (2004): 723–24.
69. Since the 1860s, the U.S. Congress tried to reign in polygamy and the power of the Mormon Church through various measures like the Morrill Act and Poland Act. The territory of Utah was subject to federal jurisdiction, allowing Congress to regulate matters like marriage, usually left up to the states. Drakeman, “Reynolds v. United States,” 700–702.
70. Reynolds v. United States 98 US 164; Barton, Original Intent, 13, 51; Dreisbach, Thomas Jefferson and the Wall, 1–5, 97–100, 120; Ronald B. Flowers, That Godless Court?: Supreme Court Decisions on Church-State Relationships (Louisville, KY: Westminster John Knox Press, 2005), 22. Drakeman thinks Chief Justice Waite was influenced by the great American historian George Bancroft and Robert Howison’s History of Virginia in pointing to Jefferson, Madison, and Virginia as the basic source of authority in this matter. Why Jefferson’s letter to the Danbury Baptist Association became a basic authority is not so clear. “Reynolds v. United States,” 697–98, 704–16.
71. Roger K. Newman, Hugo Black: A Biography (New York: Pantheon Books, 1994), 154ff., 209–11.
72. The administration begins to adopt terms like “liberal” and “progressive” to describe its policies. Thomas L. Krannawitter and Daniel C. Palm, A Nation Under God? The ACLU and Religion in American Politics (Lanham, MD: Rowman and Littlefield Publishers, 2005), 46.
73. Newman, Hugo Black, 20, 91, 94, 97–98. A furor broke out over his membership in the KKK shortly after he was confirmed. He almost was forced to resign. Ibid., 247ff., 258. Hamburger believes that his anti-Catholic past in the KKK moved him to erect the wall of separation, but it appears as if his connection to the group was motivated more by political ← 250 | 251 → interests than sincere heartfelt convictions. Whether it is a factor remains open to question, but there is no doubt that his increasing secularity played a vital role. Cf. Hamburger, Separation of Church and State, 399ff., 422ff., 451; Catherine M. A. McCauliff, “Religion and the State,” The American Journal of Comparative Law 58 (2010): 32–33. Hamburger is certainly right that anti-Catholicism played a role in Black and the nation in developing church/state separation, and maybe his relation to the KKK helped further this bigotry.
74. Ibid., 463.
75. Ibid., 521; C. Mauney, “Justice Black and the First Amendment Freedoms: Thirty-Four Influential Years,” in The Emporia State Research Studies, 35/2 (1986): 45.
76. Ibid., 67, 141–43, 448–50.
77. Everson v. Board of Education 330 US 1.
78. Richard E. Morgan, The Politics of Religious Conflict: Church and State in America (New York: Pegasus, 1968), 54; Ronald James Boggs, “Culture of Liberty: History of Americans United for Separation of Church and State, 1947–1973” (Ph.D. Dissertation: The Ohio State University, 1978), 5–9, 42–43; Paul Blanshard, Religion and the Schools: The Great Controversy (Boston, MA: Beacon Press, 1963), 120ff.; Jefferies and Ryan, “A Political History of the Establishment Clause,” 313, 315, 318.
79. The dissent only wanted to proceed further and deny Catholics the use of buses in the name of the wall. The dissent was spearheaded by Felix Frankfurter, a secular Jew, a founder of the ACLU, a left-wing socialist, and Harvard professor. Black’s decision went through eight drafts in his attempt to please the opposition and reiterate his commitment to church/state separation. James F. Simon, The Antagonists: Hugo Black, Felix Frankfurter, and Civil Liberties in America (New York: Simon and Schuster, 1989), 81; Hamburg, Separation of Church and State, 461, 465–68, 474–75; Newman, Hugo Black, 361. For a discussion of Frankfurter and the ACLU, see Krannawitter and Palm, A Nation Under God?, 60–63. The ACLU and the National Council of Catholic Men and Women both filed briefs as amici curiae, representing the opposite sides of the issue. The ACLU pointed the Court to Jefferson’s letter to the Danbury Baptist Association and its “wall of separation”—maybe, inspiring Black’s usage of the metaphor. The Catholics recognized the metaphor as containing some “validity,” but felt that it was not undermined by the transportation law and should not become an “iron curtain.” Brief of American Civil Liberties Union as Amicus Curiae (Nov. 14, 1946), in Everson v. Board of Education, 4, 7, 12, 26–27, 32, 34–35; Brief Amici Curiae of National Council of Men and National Council of Women (Nov. 18, 1946), in Everson, 4, 32–36; Dreisbach, Thomas Jefferson and the Wall of Separation, 100.
80. Ethan Berot, “Forgetting to Weight: The Use of History in the Supreme Court’s Establishment Clause,” Georgetown Law Journal 102/3 (2014): 859; Sidney Hooks, Religion in a Free Society (Lincoln: University of Nebraska, 1967), 43–44, 64–67; Strout, “Jeffersonian Religious Liberty and American Pluralism,” 228; A. E. Dick Howard, “The Supreme Court and the Establishment of Religion,” in James Madison on Liberty, 280. Of course, Jefferson was not present in the country during the writing or signing of the U.S. Constitution, and his letter to the Danbury Baptist Association was written a decade later.
81. Noah Feldman, “From Liberty to Equality: The Transformation of the Establishment Clause,” California Law Review 90/2 (2002): 681; Ervin, “Colonial History and the First Amendment,” 216–17; Prud’homme, “Rev. Thomas Bray, …,” 21. Among the books Black ← 251 | 252 → recommended to his law clerks was Foxe’s Book of Martyrs (Actes and Monuments, 1563), which emphasized the persecutions of the church down through the ages. Howard, “The Supreme Court and the Establishment Clause,” 280.
82. For a discussion of the religious opinions and policy of church/state separation in Hitler, Nazism, Lenin, Stalin, and Communism, see Strehle, The Dark Side of Church/State Separation, 123–26, 243–48, 343–44.
83. McCollum v. Board of Education 333 US 203. In a subsequent case, Zorach v. Clauson (1952), the Court allowed for religious studies, which were not taught upon school grounds. Flowers, That Godless Court?, 101.
84. McCollum v. Board of Education 333 US 227–28. Frankfurter is the first to raise this principle of offense. He thinks of public schools as the training ground for the “secular habits of the community.” Children who opt out of the program feel the scorn of the community in this peer-pressure-laden environment. Both Jackson and Reed question Frankfurter’s criterion and wonder whether the Constitution really protects a person from embarrassment. McCollum v. Board of Education 333 US 233, 241.
85. Lynch v. Donnelly 465 US 688, 695; Elk Grove Unified School District v. Newdow 542 US 34; Allegheny v. ACLU of Pittsburgh 492 US 628–29; Wallace v. Jaffree 105 S. Ct. 2479, in Robert T. Miller, Toward Benevolent Neutrality: Church, State, and the Supreme Court (Waco, TX: Baylor University Press, 1987), 439 [TBN hereafter]; Feldman, “From Liberty to Equality,” 694, 697–98. Feldman mocks this standard: “Is Veterans’ Day to be celebrated? This may send a message of identity exclusion to pacifists. Labor Day? Exclusion of homemakers (or perhaps capitalists). Columbus Day? Native peoples. Many governments require the teaching of evolution in biology courses, an alliance with secularist ideology that excludes those who adhere to biblical literalism in matters of creation” (713). See also Van Orden v. Perry 545 US 708; Santa Fe Independent School District v. Doe 530 US 305. Kennedy rejects O’Connor’s endorsement test. He says it comes only from her concurring opinion in Lynch v. Donnelly; it is based on her idea of offense or exclusion; it ignores the numerous government practices that offend minorities. Allegheny v. ACLU of Pittsburgh 492 US 668–69. He finds the displays of the crèche and menorah “purely passive,” one is free to ignore them or not. Allegheny v. ACLU of Pittsburgh 492 US 662–64. Rehnquist and others agree with this line of reasoning. Van Orden v. Perry 545 US 691.
86. Marsh v. Chambers 463 US 783, 792.
87. Witte, “Publick Religion,” 32; Pfeffer, “Madison’s ‘Detached Memoranda’,” 298.
88. Lynch v. Donnelly 465 US 668, 680–81.
89. Lynch v. Donnelly 465 US 691–92. Brennan accuses Blackmun and O’Connor of taking “Christ out of Christmas” by denying the religious origins of the tree and disconnecting the crèche from the divine incarnation. Allegheny v. ACLU of Pittsburgh 492 US 639; Lynch v. Donnelly 465 US 708ff. Then Brennan turns around and declares with O’Connor that Thanksgiving is “unquestionably a secular and patriotic” holiday. It celebrates “patriotic values” rather than “particular religious beliefs,” “despite its religious origins.” Allegheny v. ACLU of Pittsburgh 492 US 631; Lynch v. Donnelly 465 US 371.
90. Allegheny v. ACLU of Pittsburgh 492 US 575, 601–2, 616.
91. Allegheny v. ACLU of Pittsburgh 492 US 573; Flowers, That Godless Court?, 152–53. ← 252 | 253 →
92. E.g., Supreme Court decisions on the Decalogue. Stone v. Graham 449 US 39 (1980); Van Orden v. Perry 545 US 677 (2005); McCreary County v. ACLU of Kentucky 545 US 844 (2005); Keith Gunnar Bentele et al., “Breaking Down the Wall Between Church and State: State Adoption of Religious Inclusion Legislation, 1995–2009,” Journal of Church and State 56/ 3 (2014): 513; Flowers, That Godless Court?, 118.
93. Allegheny v. ACLU of Pittsburgh 492 US 616–17, 633–34, 639.
94. Jeffries and Ryan, “A Political History of the Establishment,” 290; Howard, “The Supreme Court and the Serpentine Wall,” 336.
95. Engel v. Vitale 370 US 421 (1962); Murray v. Curtlett 228 Md. 139, 179 A. 2d 698 (Md. 1962); Abington Township v. Schempp 374 US 203 (1963); Wallace v. Jaffree 472 US 38 (1985); Lee v. Weisman 505 US 577 (1992); Santa Fe Independent School District v. Doe 530 US 290 (2000); Flowers, That Godless Court?, 104, 108–13; Charles J. Russo and Ralph D. Mawdsley, “The Supreme Court and the Establishment Clause at the Dawn of the New Millennium: ‘Bristl[ing] with Hostility to All Things Religious’ or Necessary Separation of Church and State?,” Brigham Young Education and Law Journal 2001/2 (2001): 235–36, 241–45.
96. Lee v. Weisman 505 US 592–93, 597–98, 605–606; Engel v. Vitale 370 US 442.
97. Lee v. Weisman 505 US 637–42.
98. Abington Township School District v. Schempp 374 US 237–39; Marsh v. Chambers 463 US 798–99.
99. Howard, “The Supreme Court and the Serpentine Wall,” 340–41. Ca. 85 percent of private schools are religious. The majority of the schools remain Catholic, but Evangelical Christians started forming their own Christian academies in the next few decades. They also felt disenfranchised by the public school system as it proceeded in the 1960s toward complete secularization. They now represent a significant portion of the private religious schools and have joined Catholics, Orthodox Jews, and a growing number of Blacks in supporting vouchers or some form of financial aid for these private schools. For all the statistics and details, see Jefferies and Ryan, “A Political History of the Establishment Clause,” 327–61; Stephen L. Carter, The Culture of Disbelief: How American Law and Politics Trivialize Religious Devotion (New York: Doubleday, 1994) 194–97.
100. Grand Rapids School District v. Ball 473 US 373 (1985); Aguilar v. Felton 473 US 402 (1985); Flowers, That Godless Court?, 82–83; Lemon v. Kurtzman 403 US 617–18; McConnell, “Why ‘Separation’ Is Not the Key to Church-State Relations,” 43. Most members of the Court find it easy to identify and separate secular and religious education. Lemon v. Kurtzman 403 US 613; Everson v. Board of Education 330 US 205; Zorach v. Clauson 343 US 314. The Court’s problem with sectarian education is the mixing of the two together in its schools. School District of the City of Grand Rapids v. Ball 105 S. Ct. 3216, 570 [TBN]; Committee for Public Education and Religious Liberty v. Regan 444 US 668–69. The members say that sectarian schools are given over to proselyting and present a “theocentric” view of subjects like history. Some jurists fear that this sectarian bias will make its way into the nation’s textbooks. Board of Education v. Allen 392 US 260–66, 270; Tilton v. Richardson 403 US 694; Zelmann v. Simmons-Harris 536 US 685; Rosenberger v. Rector and Visitors of University of Virginia 515 US 895. The battle over curriculum and textbooks shows that no curriculum is neutral. In the postmodern world, the distinction between subjects has ← 253 | 254 → broken down; the distinction between objectivity and subjectivity (reason and faith) has broken down; and the justification for excluding religion along with it. Paul J. Toscano, Invisible Religion in the Public Schools: Secularism, Neutrality, and the Supreme Court (Bountiful, UT: Horizon Publishers, 1990), 33, 82–83; Michael McConnell, “The Influence of Cultural Conflict on the Jurisprudence of the Religious Clauses of the First Amendment,” in Law and Religion in Theoretical and Historical Context, Peter Cane, Carolyn Evans, and Zoë Robinson (eds.) (Cambridge: Cambridge University Press, 2008), 109, 118. Jackson recognized the problem with this simple dichotomy early on. He recognized that religious bias permeates academia and its many disciplines. “…nearly everything worth transmitting, everything which gives meaning to life, is saturated with religious influence, derived from paganism, Judaism, … Christianity, [et al.].” Brennan tries to reduce secular education to the transmission of “certain skills, such as reading, writing, and arithmetic, as well as a minimum amount of information and knowledge…,” as if skills and “facts” exist outside of ideology, theory, and content. McCollum v. Board of Education 333 US 235–37; Lemon v. Kurtzman 403 US 655. Kennedy says a strict view of separation must exclude the teaching of philosophers like Plato, Spinoza, Decartes, Marx, Sartre, et al., and reduce education to making “pasta or peanut butter cookies.” Rosenberger v. Rector and Visitors of University of Virginia 515 US 836–37.
101. Agostini v. Felton 521 US 203 (1997); Donald A. McFairlane, “The State, Religion, and Schools: Enduring Constitutional Battles and Political and Legal Ideologies in American Democracy,” Franklin Business & Law Journal 2012/3 (2012): 85; Flowers, That Godless Court?, 93–94; Russo and Mawdsley, “The Supreme Court and the Establishment Clause,” 240, 252–53; McConnell, “The Influence of Cultural Conflict…,” 15–16. See also Mitchell v. Helms 530 US 793 (2000).
102. Everson v. Board of Education 330 US 1 (1947); Board of Education v. Allen 392 US 236 (1968); Lemon v. Kurtzman 403 US 602 (1971); Sloan v. Lemon 413 US 825 (1973); Meek v. Pittenger 421 US 349 (1975); Wolman v. Walter 433 US 229 (1977); Committee for Public Education v. Regan 444 US 646 (1980); Mueller v. Allen 463 US 388 (1983); Aguilar v. Felton 473 US 402 (1985); Grand Rapid School District v. Ball 473 US 373 (1985); Zobrest v. Catalina Foothills School District 509 US 1 (1993); Jeffries and Ryan, “A Political History of the Establishment Clause,” 288–89; Flowers, That Godless Court?, 83–85; Russo and Mawdsley, “The Supreme Court and the Establishment Clause,” 236.
103. Zelman v. Simmon-Harris 536 US 639 (2002); Flowers, That Godless Court?, 97–98; DeForrest, “An Overview and Evaluation of the State Blaine Amendments,” 552–54; McFarlane, “The State, Religion, and Schools,” 85.
104. Jeffries and Ryan, “A Political History of the Establishment Clause,” 289; Bentele et al., “Breaking Down the Wall Between Church and State,” 506.
105. Wallace v. Jaffree 472 US 110–11.
106. Wallace v. Jaffree 472 US 92, 106–7. See Howard, “The Supreme Court and the Serpentine Wall,” 340.
107. Phillip E. Hammond, “American Church/State Jurisprudence from the Warren Court to the Rehnquist Court,” Journal for the Scientific Study of Religion 40/3 (2001): 457, 460–61; Russo and Mawdsley, “The Supreme Court and the Establishment Clause,” 254–55; ← 254 | 255 → Howard, “The Supreme Court and the Serpentine Wall,” 318; Dreisbach, Thomas Jefferson and the Wall of Separation, 103–5; Witte, “Publick Religion,” 32.
108. Derek Davis, Original Intent: Chief Justice Rehnquist and the Course of American Church/State Relations (Buffalo, NY: Prometheus Books, 1991), 127–28.
109. Bentele et al., “Breaking Down the Wall Between Church and State,” 503–4. This study counts 87 religious inclusion laws passed between 1995 and 2009, mainly sponsored by Evangelical groups and conservative legislators. Ibid., 508–9, 515, 529–32.
110. Flowers, That Godless Court?, 120; Howard, “The Supreme Court and the Serpentine Wall,” 324.
111. Board of Education v. Mergens 496 US 226. See also Lamb’s Chapel v. Center Moriches Union Free School District 508 US 384 (1993); The Good News Club v. Milford Central School 533 US 98 (2001); Howard, “The Supreme Court and the Serpentine Wall,” 318–21, 327, 345.
112. Rosenberger v. University of Virginia 515 US 819; Hammond, “American Church/State Jurisprudence,” 458.
113. He speaks of “accommodation” and “benevolent neutrality.” Lynch v. Donnelly 465 US 673; Walz v. Tax Commission of New York City 387 US 676.
114. Lemon v. Kurtzman 403 US 602. For other jurists who sympathize with Burger, see McCollum v. Board of Education 333 US 239, 244, 254–55 [Reed]; Lemon v. Kurtzman 403 US 642 [Brennan]; Abington Township School District v. Schempp 374 US 241, 294 [Brennan]; Board of Education v. Allen 392 US 242 [White]. The metaphor of a line is heartening to those people who find the situation complex and the distinction between church and state harder to find. The metaphor goes back to Madison, although he never meant for a few exceptional problems and the use of this metaphor to undermine his basic view of strict separation. See n.25; Richard P. McBrien, Caesar’s Coin: Religion and Politics in America (New York: Macmillan Publishing, 1987), 65–66; Mead, “Neither Church nor State: Reflections on James Madison’s ‘Line of Separation’,” 350–51; Dreisbach, Thomas Jefferson and the Wall of Separation, 88–89.
115. Lemon v. Kurtzman 403 US 612–13. The criteria come from earlier verdicts. Engel v. Vitale 370 US 421, 423, 433; Walz v. Tax Commission 397 US 664, 670; Ronald Flowers, “The Supreme Court’s Three Tests of the Establishment Clause,” Religion in Life 45/1 (1976): 41–42, 46–48; Josh Blackman, “This Lemon Comes as a Lemon: The Lemon Test and the Pursuit of a Statute’s Secular Purpose,” Civil Rights Law Journal 20 (2009–10): 355. Burger listed the criteria already in Tilton v. Richardson 403 US 672, where a fourth criterion is also mentioned (whether a statute inhibits the free exercise of religion). A number of justices had problems with the Lemon test, even if the Court continually came back to it. O’Connor wanted to replace the Lemon test with a simple endorsement test, forbidding the government from approving or disapproving of religion. The test had some traction in subsequent cases. Lynch v. Donnelly 465 US 687–90 (1984); Russo and Mawsdley, “The Supreme Court and the Establishment Clause,” 260–62; Feldman, “From Liberty to Equality,” 694ff. Rehnquist rejects the Lemon test as based on false history. Wallace v. Jaffree 105 S. Ct. 2479, 450 [TBN]. Scalia and Thomas also reject the Lemon test and believe the government can advance religion. McCreary County v. ACLU of Kentucky 545 US 887–89, 893; Van Orden v. Perry 545 US 692; Rosenberger v. Rector and Visitors of University of Virginia 515 US 860–61. For an evaluation of Scalia’s view of “inclusive nonaccomodation,” see ← 255 | 256 → Andrew Koppelman, “Secular Purpose,” Virginia Law Review 88/1 (2002): 122; McConnell, “Taking Religious Freedom Seriously,” 32; Micah Schwartzman, “What If Religion Is Not Special?,” The University of Chicago Law Review 79/4 (2012): 1363, 1395–96. Those who reject Lemon’s blurred line and want a firm wall include Frankfurter, Kennedy, Stevens, and Souter. McCollum v. Board of Education 333 US 213, 231; Allegheny v. ACLU of Pittsburgh 492 US 649; Van Orden v. Perry 546 US 709 (n.4), 729, 731; Committee for Public Education and Religious Liberty v. Regan 444 US 671; Agostini v. Felton 521 US 244, 254; Zelman v. Simmons-Harris 536 US 717; Lee v. Weisman 505 US 613–15.
116. Philosophers have difficulty looking outside the text and finding some mystical, mental “purpose.” Even if motives are available for interpretation, a multitude of motives lie behind any statute in a democratic process, filled with compromise. Edwards v. Aguillard 482 US 636–37; Epperson v. Arkansas 393 US 112–13; Blackman, “This Lemon Comes as a Lemon,” 363–68. Some jurists selectively read a legislative history and find what purpose they are looking for in order to justify their verdict. Blackman, “This Lemon Comes as a Lemon,” 395–99. Other jurists try to find the “purpose” through what a “reasonable” or “objective observer” might discern about a given law, display, or ritual, although the philosophical community lives in a more subjective, postmodern world than these jurists. McCreary County v. ACLU of Kentucky 545 US 862–63, 866–68; Allegheny v. ACLU of Pittsburgh 492 US 630. Scalia is particularly interested in the objective effect or result of a statute, not its a priori subjective purpose. Edwards v. Aguillard 482 US 636–38; Susanna Dokupil, “‘Thou Shalt Not Bear False Witness’: ‘Sham’ Secular Purposes in Ten Commandments Displays,” Harvard Journal of Law and Public Policy 28 (2005): 625ff.: Koppelman, “Secular Purpose,” 158.
117. The Christian Right got a particular hoot out of Hugo Black’s recognition of “Secular Humanism” and “Ethical Culture” as a religion in an opinion’s dicta. With one slip of the pen, he completely demolished his wall. Torcaso v. Watkins 367 US 488, n.11 (1961); Flowers, That Godless Court?, 117. Many view secularism as a religion. Phillip Hammond, “The Courts and Secular Humanism,” Society 21/11 (1984): 11; Toscano, Invisible Religion in the Public Schools, 17, 46, 131. The Court also prefers to use rather than define “religion,” although the position of strict separation demands a clear definition and clear distinction between it and secularity. For the problem of defining religion, see Stephen Strehle, The Separation of Church and State: Has America Lost Its Moral Compassion (Lafayette, LA: Huntington House Publishers, 2002), 13–21.
118. This problem causes a philosopher like Richard Rorty to want a political discourse that brackets philosophical justifications since he wants to privilege his own secularity, and his postmodern view of life is unable to justify his or any views. Life and politics would be based on groundless assertions or the will to power, much like Thomas Hobbes’ political philosophy. “The Priority of Democracy to Philosophy,” in The Virginia Statute for Religious Freedom, 261–62; Philosophy and the Mirror of Nature (Princeton, NJ: Princeton University Press, 1979), 392–94; Koppelman, “Secular Purpose,” 134–35. Certainly, sociologists like Durkheim and Weber reject the notion that reason can eliminate religion and find society’s ultimate values beyond the sacred. Chadwick, The Secularization of the European Mind, 6–7. The Court clearly engages in some type of metaphysical judgment in trying to distinguish religion and non-religion. ← 256 | 257 →
119. McGowan v. Maryland 366 US 420, 433–36, 443, 483 (1961).
120. See the first paragraph of the Conclusion for the problems with this type of argumentation in religion and secularity. The Court shows skepticism toward Creation Science, which uses the argumentum ex ignorantia when pointing to the sudden and inexplicable appearance of certain things in nature and asserts some sort of miracle created them. This argument of Creation Science is bad because further evidence might explain the phenomenon and no longer need the miracle. Edwards v. Aguillard 482 US 600.
121. Everson v. Board of Education 330 US 17–18; Board of Education v. Allen 392 US 252–53. Of course, these matters exist only within an ethical framework that lowers speed limits to save lives or raises them to save time, that widens the sidewalks to protect children or forgoes the sidewalk to save money.
122. Allegheny v. ACLU of Pittsburgh 492 US 625; Lynch v. Donnelly 465 US 693.
123. Wolman v. Walter 433 US 236; Mueller v. Allen 463 US 395.
124. Wolman v. Walter 433 US 236.
125. Zelman v. Simmons-Harris 536 US 649; Walz v. Tax Commission of New York City 387 US 687–89; Witters v. Washington Department of Services for the Blind 106 S. Ct. 748 [TBN]; Everson v. Board of Education 330 US 25.
126. Allegheny v. ACLU of Pittsburgh 492 US 619, 635–36; Edwards v. Aguillard 482 US 627–28; Lee v. Weisman 505 US 607; McCollum v. Board of Education 333 US 231; Abington Township School District v. Schempp 374 US 242–43.
127. Allegheny v. ACLU of Pittsburgh 492 US 619–20; Van Orden v. Perry 545 US 741 (n.4). Brennan recognizes how deeply offensive this inclusive message is to conservative religious groups who refuse to participate in ecumenical services. Allegheny v. ACLU of Pittsburgh 492 US 645. The liberal religious bias on the Court seems to gloat over their perception that diversity is growing in America.
128. McGowen v. Maryland 366 US 443; McCreary County v. ACLU of Kentucky 545 US 869, 874; Van Orden v. Perry 545 US 715–16; Abington Township School District v. Schempp 374 US 224; Stone v. Graham 449 US 41–42.
129. Souter specifically forbids connecting ethics and God together in prayer as deeply offensive. Lee v. Weisman 505 US 617.
130. Stephen Strehle, Egalitarian Spirit of Christianity: The Sacred Roots of American and British Government (New Brunswick, NJ and London: Transaction Publishers, 2009), 111–13, 134–49. In the early part of the nineteenth century, even those dissenters and Jeffersonian Republicans who espoused a strict separation were forced to back down when confronted with the problem of separating God and morality. They were accused of destroying the moral fabric of society. Hamburger, Separation of Church and State, 77.
131. See Albert Einstein, Ideas and Opinions (New York: The Modern Library, 1994), 33, 45, 48, 54. Immanuel Kant tries to make reason prescriptive rather than descriptive of the world and his inner subjective appropriation of it. He tries to rescue scientific law (the category of causality) and make it an expression of objective universal reality, but his synthetic a priori is considered a failure. He also tries to create a universal moral imperative, but he can never transcend the way his mind happens to work and make it truly prescriptive. Utilitarian philosophers like J. S. Mill try to make ethics a calculating sum, but they are ultimately unsuccessful in establishing the goal or “end” that humans must achieve in determining the ← 257 | 258 → “means”; or, in the case of Mill, he commits the “naturalistic fallacy” by trying to make our desires “desirable.”
132. O’Connor tries to emphasize in her decisions that the relevant viewpoint is that of a “reasonable observer, fully cognizant of the history, ubiquity, and context of the practice in question.” Elk Grove Unified School District v. Newdow 542 US 40. She has little appreciation of her historical bias and ignorance.
133. I cannot present the details in this chapter, but they are presented in my book The Egalitarian Spirit of Christianity. Kennedy says a religious group cannot “persuade the government to adopt an idea.” Brennan says that “one religious denomination cannot be officially preferred over another.” Lee v. Weisman 505 US 591, 599; Larson v. Valente 456 US 244. These statements are patently false. The Puritans (Congregationalists) have everything to do with the American view of government. Other groups certainly joined them like the Quakers (who grew out of the Puritan movement) and Presbyterians (who were radicalized by them). Even their opponents, the Catholic Church, made significant contributions like the concept of natural/inalienable rights, which grew out of the work of William Ockham, Jean Gerson, and the Decretalists in the late medieval period. See Strehle, Egalitarian Spirit of Christianity, chaps. 1–4.
134. Douglas, writing for the majority, said, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson 343 US 313. Conservative members like Rehnquist speak of the close identification of religion with our nation’s history and government but offer few details. Stone v. Graham 449 US 46; Van Orden v. Perry 545 US 687–88. Brennan acknowledges the early connection but sees religion and the government losing connection over a period of time. The Court sees the development of our society and government in secular terms. Marsh v. Chambers 463 US 821–22; Abington Township School District v. Schempp 374 US 303–304; Dokupil, “’Thou Shalt Not Bear False Witness’,” 628.
135. Edwards v. Aguillard 482 US 605; Van Orden v. Perry 545 US 725–26; McCreary v. ACLU of Kentucky 545 US 881–82; Zelman v. Simmons-Harris 536 US 685–86, 718–19. David Hackett Fischer’s work Albion’s Seed (New York and Oxford: Oxford University Press, 1989) provides an analysis of the four major waves of immigrants who came to this country in its formative years and shows the specious nature of the Court’s simplistic point of view. See chap. 3, pp. 88, 114 (n.6) for details.
136. McCreary v. ACLU of Kentucky 545 US 883; Edwards v. Aguillard 482 US 607; Meek v. Pittinger 421 US 372; Zelman v. Simmons-Harris 536 US 685–86, 718–19; Engel v. Vitale 370 US 432–35. “Divisiveness” is now part of the Lemon test and continually used by the Court to rid the government of religion. Lemon v. Kurtzman 403 US 622; Zelman v. Simmons-Harris 536 US 718–19. Rather than considering religion the backbone of society, much of the Court considers it the enemy. Even Voltaire would disagree with this assessment. “If God did not exist, it would be necessary to invent him.” “Éiptre,” in Oeuvres Complètes de Voltaire (Paris: Garnier Frères, 1877–85), 104.
137. This certainly would be news to the “Protestants” of the Schmalkald League, who fought for religious liberty in the early sixteenth century, following the admonitions of Martin Luther. It would be news to William Walwyn and the many non-Conformists of Puritan England, including Oliver Cromwell, who dreamed of religious pluralism, or a society founded upon liberty, following Paul’s admonitions in Rom 14. It certainly would be news ← 258 | 259 → to all those individuals who looked to the example of Jesus as most essential in the development of religious toleration in the sixteenth, seventeenth, and eighteenth centuries. The example of Jesus was followed by the many sectarian and dispensational groups (Anabaptists, Arminians, Baptists, and Levellers) and many of the early champions of toleration (Sebastion Castellio, Desiderius Erasmus, Roger Williams, and John Locke). It was even followed by those who rejected the basic dogma of the church—all still admiring the simple, moral teachings of the carpenter from Nazareth (Diderot, Voltaire, and Jefferson). Both Jesus and Paul emphasized freedom in their ministry in rejecting the heavy-handed legalism of the Pharisees (Mt 11:28–30 and Gal 5:1), and both rejected violence in spreading their message (Mt 5:39 and Rom 12:14–13:5).
138. Everson v. Board of Education 330 US 11–13; Marsh v. Chambers 463 US 807–8; Abington Township School District v. Vitale 374 US 214; Lee v. Weisman 505 US 620; McCreary v. ACLU of Kentucky 545 US 878–79; Van Orden v. Perry 545 US 724–25. The Court points to Madison’s defeat of the general assessment in Virginia to support “Teachers of the Christian Religion.” The Court concludes that no taxes can go to support religion, even on a nonpartisan basis. Everson v. Board of Education 330 US 41–45.
139. This clearly shows that the majority disagreed with the strict position.
140. On church/state separation among the Nazis and communists, see Strehle, Dark Side of Church/State Separation, 123, 244–48, 307–8, 326–27, 344.
141. Ibid., 73–78.
142. Ibid., 101–7.
143. Abington Township School District v. Schempp 374 US 225. Much of the Court speaks of its “neutrality” in regard to religion and irreligion. Epperson v. Arkansas 393 US 104; Rosenberger v. Rector and Visitors of University of Virginia 515 US 846; Van Orden v. Perry 545 US 735; Walz v. Tax Commission of New York City 387 US 701–4, 707–8. Some like Rehnquist, Scalia, Thomas, and Burger (to a lesser degree) can prefer religion to non-religion. Wallace v. Jaffree 105 S. Ct. 2479, 450 [TBN]; Edwards v. Aguillard 482 US 639–40; Lamb’s Chapel v. Center Moriches Union Free School District 508 US 398–99; Lynch v. Donnelly 465 US 683. O’Connor, along with the conservatives, thinks that “sweep[ing] away all government recognition and acknowledgement of the religion in the lives of our citizens…would exhibit not neutrality but hostility.” Allegheny v. ACLU of Pittsburgh 492 US 623; Van Orden v. Perry 545 US 697; McCreary v. ACLU of Kentucky 545 US 897–99.
144. Lynch v. Donnelly 465 US 692, 709–11, 717, 725; Allegheny v. ACLU of Pittsburgh 492 US 610, 643–44.
145. Elk Grove Unified School District v. Newdow 542 US 46–49.
146. Lynch v. Donnelly 465 US 716–17; Abington Township District v. Schempp 374 US 279–81, 294. O’Connor essentially agrees with this sentiment concerning the Pledge. Elk Grove Unified School District v. Newdow 542 US 40, 41. Even a conservative jurist like Rehnquist engages in the claptrap. “Reciting the Pledge, or listening to others recite it, is a patriotic exercise, not a religious one; participants promise fidelity to our flag and our Nation, not to any particular God, faith, or church.” Ibid., 31. It might be true that certain matters are drained of religious significance over a period of time (e.g., names of cities like Los Angeles and San Francisco), but the Court’s secularization is hardly neutral; it sponsors this worldview through government and public education. It is not neutral to favor non-religious ← 259 | 260 → expression of matters. Koppelman, “Secular Purpose,” 109, 153; Rafael Palomino, “Legal Dimensions of Secularism: Challenges and Problems,” Contemporary Readings in Law and Social Justice, 4/2 (2012): 211; Toscano, Invisible Religion in the Public Schools, 77–78; Michael McConnell, “Equal Treatment and Religious Discrimination,” in Equal Treatment of Religion in a Pluralistic Society, Stephen Monsma and J. Christopher Soper (eds.) (Grand Rapids, MI: William B. Eerdmans Publishing, 1998), 33. Cf. Epperson v. Arkansas 393 US 103–4.
147. Garey, Defending Everybody, 24–26.
148. Samuel Walker, In Defense of American Liberties: A History of the ACLU (Carbondale and Edwardsville, IL: Southern Illinois University Press, 1990), 11–12, 17, 28–29; Krannawitter and Palm, A Nation Under God?, 60; Donohugh, The Politics of the American Civil Liberties Union, 28–29; Garey, Defending Everybody, 35.
149. Garey, Defending Everybody, 43; Walker, In Defense of American Liberties, 39–40.
150. Ibid., 55, 70.
151. Krannawitter and Palm, A Nation Under God?, x; Garey, Defending Everybody, 91–93.
152. Roger N. Baldwin, “Freedom in the U.S.A. and the U.S.S.R.,” Soviet Russia Today (Sept. 1934): 11; Liberty Under the Soviets (New York, Vanguard Press, 1928), 4; Cletus Daniel, The ACLU and the Wagner Act (Ithaca, NY: Cornell University, 1980), 81, 129–30; Donohue, The Politics of the American Civil Liberties Union, 138, 230; Twilight of Liberty, 134; Krannawitter and Palm, A Nation Under God?, 62–63; Garey, Defending Everybody, 93. He would confess at times, “I am for socialism.… I seek the social ownership of property, the abolition of the propertied class and sole control of those who produce wealth. Communism is the goal.” In an article for Soviet Russia Today, he says that the “class struggle is the central conflict of the world; all others are incidental.” While he prefers non-violent means of creating a socialist state, he recognizes that “violent tactics” against the ruling class are necessary and “some suppression” of civil liberties are necessary to achieve “the only ground on which liberty really matters—economic.” “Thirty Years Later” (Harvard Class Book of 1935), quoted in Peggy Lamson, Roger Baldwin: Founder of the American Civil Liberties Union (Boston, MA: Houghton Mifflin Co., 1976), 192; Krannawitter and Palm, A Nation Under God?, 63. Baldwin follows this American version of the socialist program in his work on Liberty Under the Soviets (1928). He continues to emphasize civil liberties, preferring to work at a slower pace than compromise ethical standards through revolutionary tactics, but he lauds the Soviet experiment in accordance with the title of the book as seeking and accomplishing the same ultimate goal. He recognizes and lists a number of problems with Soviet policy in compromising civil liberties but proceeds to provide a favorable review of its overall direction, considering the “basic economic freedom of workers and peasants and the abolition of privileged classes based on wealth” more significant than these other issues. The Soviet policy represents the “interests of the overwhelming majority of the population” and the “most heroic piece of social reorganization in history.” In contrast to the suppression of cultural life under the Czars, the many nationalists of the Soviet Union are enjoying “unparalleled freedom” at the present time, and much of the criticism directed at the Communist Party is based upon exaggerated accounts of its methods, which fail to appreciate what is requisite in leading a successful revolution. Stalin and the majority of the Party are steering a “middle course between right and left extremes,” exhibiting an ← 260 | 261 → “amazing capacity for self-criticism,” and displaying a “freedom from the outside dictation of a propertied class practically eliminat[ing] the corruption and big graft which marked the czar’s regime, and which, let Americans bear in mind, mark politics in the United States.” Baldwin appears to endorse the Politburo with these types of comments and even patronizes the tactics of its state police (G.P.U.), given the ongoing threat of foreign governments and counter-revolutionaries like the Mensheviki or Social-Democrats. While he clearly prefers the more gentile method of a pacifist in accomplishing the goal, he accepts the Soviet rationale as a way of justifying the means and tends to believe the party line that speaks of its measures as only transitional, imposed by the necessity of a temporary dictatorship and meant to dissipate with the dawning of a classless, democratic state. Baldwin, Liberty Under the Soviets, 2–6, 11–12, 19–23, 34–35, 58–60, 72, 134, 195–96, 206–209, 219, 234–35, 272.
Of course, his concern for the restoration of civil rights shows little interest in the religious community. Baldwin speaks of the Soviet censorship of religious material, the end of religious ceremonies from public view, and the promotion of anti-religious propaganda among Jews and Christians by the state, without expressing much indignation. All this seems justified in his eyes because of the need to rid the “peasant masses” from “primitive superstitions” and “childlike belief” in “miracles,” “rites,” and “prayer” through inculcating a social scientific view of life. He even accepts the persecution of the Orthodox Church as a necessary measure in ending its former status as the church/state monopoly and undoing its place as a bastion of anti-communist sentiment. Ibid., 74–75, 91–100. In his summation, he writes,
[I]t is evident that religious liberty under the Soviets is vastly greater than it was under the czar, despite the fact that the czar was for religion and the Soviets are against it. Freedom for anti-religion is naturally much greater than anywhere else in the world, since it is officially encouraged and directed as part of the Communist program—although it is still a weak force except as it opposes scientific agriculture to peasant superstition.
The sectarians, evangelicals, and non-Christian oriental religions enjoy about as much freedom as in other countries, and more than in most with a state church. The old Orthodox and Roman Catholic churches alone suffered severe restrictions, primarily due to their anti-Soviet political activity. Such restrictions on general religious activity as exist, are not aimed at religious freedom. They are restrictions common to the licensing of all private organizations and the censorship of all journals and books in the interest of promoting the Communist program.
On the other hand, the state is freer of religious influence than in any other country in the world—which is something to be said even in comparison with the United States, where the legal separation of church and state does not prevent the interference of sectarian interests in education—for instance through the prohibition of teaching evolution and through the compulsory reading of the Protestant Bible in public schools, to say nothing of the power of religious prejudice in elections. Ibid., 103–104.
Baldwin endorses the Soviet doctrine of “complete separation of church and state,” hoping to eliminate the influence of the church as an effective force in society and endorse his own social “scientific” viewpoint through the power of an expanding state. Ibid., 91, 97. ← 261 | 262 →
153. Walker, In Defense of American Liberties, 52, 132; Robert C. Cottrell, Roger Nash Baldwin and the American Civil Liberties Union (New York: Columbia University Press, 2000), 176; Krattawitter and Palm, A Nation Under God?, x, xiii, 61.
154. Garey, Defending Everybody, 74–76, 103–4, 107, 131. The Smith Act of 1939 made it illegal to advocate the overthrow of the government or even join a group that advocated revolution. Baldwin continued to defend the civil liberties of communists, but he did not want them on the board. In 1968, the ACLU rescinded the decision and reinstated Flynn a decade later. Ibid., 111–12. Since the 1960s, the group began a more concerted march to the left and has provided high marks for left-wing senators and representatives in public. Today it still claims to have no specific political orientation as a group, but most of their people clearly have left-wing sympathies. Donohue, The Politics of the American Civil Liberties Union, 3–5; Twilight of Liberty, ix–xi.
155. When the very concept of civil liberties was established in the Middle Ages by William Ockham and the Decretalists, it rested upon the strong belief in property rights. These scholastics withstood the Pope’s claim to a “fullness of power” over the possessions of his subjects and believed that all human beings were entitled to their life, liberty, and possessions as an inalienable or natural right; and so, it would seem to many of Baldwin’s critics that a civil libertarian should defend property rights as a necessary hedge against the power of government controlling and determining the thought, decisions, and activities of the citizens, but it appears as if most of the ACLU’s activities have defended much the opposite. Strehle, The Egalitarian Spirit of Christianity, 137–41; Ockham, De Imperatorum et Pontificum Potestate, 4.7–11; 7.157–60; 26.36–41; Breviloquium de Principatu Tyrannico, 1.3, 26–28; 4.10–11; Brian Tierney, The Idea of Natural Rights (Atlanta, GA: Scholars Press, 1997), 184–85, 190–91. Ockham’s works are found in Opera Politica, Hilary Seton Offler (ed.) (Manchester: Manchester University Press, 1963).
156. This is not without duplicity. For example, the ACLU denies the Boy Scouts, Catholic schools, and the Salvation Army the right to refuse homosexuals. Donohue, Twilight of Liberty, 118–19, 130–33. The ACLU would never think of suing Ivy League schools for practicing religious and political discrimination against right-wing intellectuals.
157. Barry Lynn, Marc D. Stern, and Oliver S. Thomas, The Right to Liberty: The Basic ACLU Guide to Religious Rights (Carbondale and Edwardsville, IL: Southern Illinois University, 1995), 1–2, 11–12, 15, 20, 25, 73–74; Krannawitter and Palm, A Nation Under God?, 1–2; Donohue, The Politics of the American Civil Liberties Union, 304–305. In addition, the ACLU rejects “shared time” (public students going to religious schools for education) and “released time” (students from religious schools attending public schools to meet state standards). It also rejects the tax-exempt status of churches but not for non-profit organizations. Donohue, The Politics of the Civil Liberties Union, 305–306; Twilight of Liberty, 98; Lynn, Stern, and Thomas, The Right to Liberty, 44. The pretext for many of its cases is the offense religion presents to certain people, although the ACLU shows less concern about the offense generated by anti-religious material. Lynn, Stern, and Thomas, The Right to Liberty, 14, 16, 24–25.
158. Sayyid Qutb, Social Justice in Islam, John B. Hardie (trans.) (New York: Octogan Books, 1970), 2–11, 245–47, 258; Milestones (Indianapolis, IN: American Trust Publications, 1990), 6, 119. Qutb is the godfather of modern Islamic terrorism in the Middle East. He ← 262 | 263 → certainly says a number of disturbing things that remain worthy of condemnation from a western viewpoint, but it is not as if everything he says is false. Unfortunately, westerners spend too much time speculating over the motives of the jihadists rather than reading their actual words. Most people prefer to condemn rather than understand their enemies; Understanding them would mean “blaming the victim” or mitigating the responsibility of their enemies, who must be condemned as evil. This attitude makes issues difficult to resolve. ← 263 | 264 →