(For previous posts in this series, see here.)

Following their failure to have the separation of church and state incorporated as an amendment into the US constitution, proponents of separation in the late 19th century then shifted strategy, urging changes in state constitutions and arguing that the federal constitution had implicitly advocated separation all along and that what was necessary was a reinterpretation of its key clauses. A broad coalition of forces – including Baptists, Jews, atheists, Masons, the Ku Klux Klan – supported this idea, some to prevent the encroachment into government by particular religious sects (especially Catholics), others because they really did want all religion out of government institutions. (Separation of Church and State (2002), Philip Hamburger, p. 481) Thus the idea of the separation of church and state, although not explicitly stated in the federal constitution, became widely accepted as a basic underlying principle of the country.

Because the idea of separation had gained considerable popularity by the time of World War I, state supreme courts in several states had started questioning the practice of Bible reading in public schools (Hamburger, p. 369). Use of the Bible in public schools started decreasing to such an extent that parents started becoming concerned that the public schools were providing too little or no religious instruction at all. A Baptist minister in 1919 put it this way, that the tendency “toward the complete secularization of education . . .had grown out of an overemphasis of our doctrine of separation of religious freedom.” He felt that Baptists “have been so insistent on the separation of church and state that we have almost completely separated education and religion to the serious detriment of both.” (Hamburger, p. 383)

Another Baptist summarized how this situation had come to pass:

Two forces, from opposite sides, have cooperated towards this general secularizing of our education. . .First, the Christian forces insisted on the absolute separation of Church and State, and thought of all religion in terms of church creeds and forms. Hence they set themselves against the teaching of Christianity in schools supported by public funds and controlled by boards of education. At the same time non-Christian influences were exerted by men who, like the churchmen, identified religion with the creeds of organized churches and felt that the churches would produce friction and confusion in the schools, would lay a hindering hand on freedom of thought and investigation. Thus the two operated together to eliminate religion from our education.” (Hamburger, p. 383)

This was the climate in which the Scopes trial took place in 1925 and explains the line of argument pursued by William Jennings Bryan. It was a time when teaching of the Bible had largely disappeared from schools. Rather that trying to directly challenge the by-then accepted idea of separation of church and state and reverse the secularization of education that had led to the Bible not being used in public schools, Bryan tried to use the separation idea to his advantage, arguing that evolution was not a scientific fact but an idea based on an atheist doctrine, and thus violated the idea of separation. This line of argument, that the theory of evolution is less a scientific theory than an atheist inspired belief structure akin to a religion, is still widely heard today.

To understand the legal developments after Scopes, recall that prior to 1925, the First Amendment was seen to apply restrictions only on the powers of the federal government. It was the 1925 Gitlow case that expanded the ‘free speech’ and ‘free press’ clauses to state and local governments by incorporating them under the Fourteenth Amendment.

Then in 1940, in the case Cantwell v. Connecticut, 310 U.S. 296, the right of Jehovah’s Witnesses to spread their message on a public street without seeking prior government approval was upheld unanimously by the US Supreme Court with the court agreeing with the Jehovah’s Witnesses that such restrictions violated the ‘free exercise’ of religion clause in the First Amendment, and that this clause was also explicitly applicable to the states under the Fourteenth Amendment. In Cantwell, the court even stated more expansively that “The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment.. . .The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”

As the debate over evolution and religion continued after the Scopes trial ended, subsequent court cases can best be understood as being caused by attempts to put at least some religion back into schools by those who felt that separation of church and state had been interpreted too broadly to mean the separation of religion and state.

One key development centered on whether the ‘establishment clause’ was also binding on the states. Although the Supreme Court had stated that it was in the 1940 Cantwell case, only the ‘free exercise clause’ that had really been at issue in that case. The case that definitively settled the ‘establishment clause’ issue was in 1947 in Everson v. Board Of Education (330 U.S. 1).

Everson involved a challenge to the policy of a local school district in New Jersey to reimburse parents for the cost of bus transportation for their children to attend parochial schools. In a close 5-4 decision, the court ruled that doing this did not violate the idea of separation of church and state. The majority ruled that such actions fell into the category of maintaining the general welfare of its citizens and that carrying the idea of separation to such extremes so that no interaction at all could exist between the state and parochial schools might prevent the state from providing even police or fire or other minimal protections and services to those schools.

Writing for the majority, Justice Hugo Black said:

Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. . . Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children’s welfare. . . Of course, cutting off church schools from these services so separate and so indisputably marked off from the religious function would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them.

At first, this ruling was seen as a major constitutional defeat for the principle of separation of church and state and Black, the author of the majority verdict, came in for severe criticism. Black has played an important role in the development of judicial doctrine on church-state relations and his history is interesting.

Black had been a member of the Ku Klux Klan in his native Alabama and had strongly supported its church-state separation policy. Before his elevation to the Supreme Court by Franklin Delano Roosevelt in 1937, Black had been elected to the US Senate from Alabama in 1926 with strong support from the KKK and other groups that saw him as someone who would strengthen that separation. Conversely, his nomination to the Supreme Court had been especially criticized by Catholics who saw him as someone opposed to them. His ruling was thus seen as a let down by those supporters who had rallied to his defense against the Catholics. They viewed his decision as a sop to Catholics, an attempt to deflect charges of being anti-Catholic.

But although his Everson ruling was criticized by advocates of church-state separatism, his ruling actually laid the foundations for subsequent rulings that ever more firmly established the idea that religion and the state should stay separate because it was in the Everson case that the court explicitly ruled that the ‘establishment clause’ protections of the First Amendment were also binding on state and local governments by virtue of the Fourteenth Amendment. (Today virtually every protection in the entire Bill of Rights is assumed to apply also to state and local governments by virtue of the Fourteenth Amendment.)

Even more importantly, Everson case also set general guidelines on what the establishment clause should be taken to mean, and explicitly inserted Jefferson’s ‘wall of separation between church and state’ into its ruling, thus making that famous phrase part of constitutional law for the first time. Writing for the court, Justice Hugo Black wrote what has since become a major part of the framework for interpreting the establishment clause:

The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church-attendance or non-attendance. No tax, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause … was intended to erect “a wall of separation between church and State.”

As Larson points out (Summer for the Gods, Edward J. Larson, 1997, p. 249), after Everson, “the Court quickly began purging well-entrenched religious practices and influences from state-supported schools.” The precedent set in this case rapidly led to a whole series of Supreme Court decisions, several of them authored by Black, creating greater distance between religion and state, and especially removing religion from schools.

Hamburger suggests (p. 462) that Black was well aware that this would happen and that his Everson ruling that seemingly favored the interests of parochial Catholic schools was a shrewd move on his part, giving a small victory to parochial schools and thus mollifying those critics who had suspected that he was anti-Catholic because of his Ku Klux Klan past, while at the same time laying the foundation for advancing the idea of separation of church and state which he strongly supported but which Catholics felt was aimed at restricting them.

Next: Religious dominos fall in rapid succession

POST SCRIPT: V for Vendetta

One of my favorite films is <a href=http://www.imdb.com/title/tt0434409/V for Vendetta, in which the key character is based on Guy Fawkes, whose plot to blow up the British parliament is remembered in England every November 5th. Of course, as usual I forgot the anniversary but Norm Nason of Machines Like Us kindly reminded me of the day and sent me a link to a clip from the film where V gives a talk to the British public warning them of how they have been lulled into accepting an authoritarian system. Replace the British Chancellor with George Bush and you will see an almost exact parallel with what is happening in the US now, where a deliberately frightened public trades away its freedoms for a fraudulent sense of safety.

As the film says: People should not be afraid of their governments. Governments should be afraid of their people.