From Scopes to Dover-19: The Lemon test for the establishment clause

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

The 1968 Epperson ruling left open the question of what should be done about the teaching of some scientific theory that went clearly went against a religious belief. Wouldn’t allowing the teaching of just that theory without balancing it with the teaching of the religious belief violate the strict neutrality, as required by the 1947 Everson verdict?

The concerns raised by Supreme Court Justices Black and Stewart in Epperson were good ones and it was another case in 1971 Lemon v. Kurtzman, 403 U.S. 602 that, although not dealing directly with the teaching of evolution, led to further clarification of this tricky issue and lay the groundwork for future evolution cases.

The Lemon case arose from two separate laws bundled together. One was passed in Rhode Island that provided “for a 15% salary supplement to be paid to teachers in nonpublic schools at which the average per-pupil expenditure on secular education is below the average in public schools. Eligible teachers must teach only courses offered in the public schools, using only materials used in the public schools, and must agree not to teach courses in religion.” The second law was passed in Pennsylvania and authorized “the state Superintendent of Public Instruction to “purchase” certain “secular educational services” from nonpublic schools, directly reimbursing those schools solely for teachers’ salaries, textbooks, and instructional materials. Reimbursement is restricted to courses in specific secular subjects, the textbooks and materials must be approved by the Superintendent, and no payment is to be made for any course containing “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” ”
[Read more…]

From Scopes to Dover-17: Teaching of evolution is back in court

(Note this has been updated)

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

1968 was a watershed year for attempts to ban the teaching of evolution in schools. The events of that year arose because of the rise of creationist thinking in the 1960s. Influential in the rise of the creationist movement was the publication in 1961 of the book The Genesis Flood by John Whitcomb and Henry M. Morris. This was a 500-page book that tried to make the case that scientific evidence supported a literal interpretation of the Bible, down to a 6,000 year old Earth and Noah’s flood. While Whitcomb was a theologian, Morris had a doctoral degree in hydraulic engineering with minors in geology and mathematics. He later founded in 1970 the Institute for Creation Research to advance these ideas.

These new creationist groups took the Bible very literally, more so than William Jennings Bryan, and in fact they thought that during the Scopes trial Bryan had betrayed Christianity by allowing that the creation days of Genesis may have lasted longer than 24 hours, thus allowing the possibility that universe may have been around for more than 6,000 years. The new creationists were having none of that wishy-washiness. Coupled with their strict literal interpretation of the Bible was the powerful feeling that the teaching of evolution had to be countered.

As I wrote in Quest for Truth: Scientific Progress and Religious Beliefs (2000, p. 4):

Initial challenges to the theory of evolution took the form of demands that schools and textbook publishers acknowledge that Darwinian evolution was “only a theory” and not a scientific “fact,” and hence it should be eliminated from the science curriculum since science was supposed to be only concerned with facts. . . But these initial challenges had only minor success. Schools and teachers could hardly be expected not to say anything at all to students about how life and the universe came to be. Since Darwinian evolution had become accepted by professional scientists as the main organizing principle in understanding the appearance of different life forms, it was inevitable that science textbooks and the training of science teachers would reflect that thinking, albeit in a fairly ad-hoc manner.

The paradox was that despite the near universal teaching (in one form or another) of Darwinian evolution in schools, surveys showed a surprising resistance among the general public to key tenets of the theory, especially the one that said that humans and apes had common ancestors. As recently as 1988, 38% of college students believed that human life originated in the Garden of Eden. Feeling that perhaps the reason for this state of affairs was that evolution was not being taught properly, the scientific community planned and implemented a thoroughgoing reform of biology science texts, culminating in the 1960s with the BSCS (Biological Sciences Curriculum Study) textbook series that had evolutionary ideas as a major theme permeating the texts. In these books, there was no escaping the fact that evolution was seen as the organizing principle in biology with no viable alternative.

The BSCS series was widely adopted by schools; but was perceived by creationists as a direct assault by the scientific community on their religious beliefs and galvanized them into responding.

Part of the thrust towards better science education was due to the shock that the launch of the Sputnik satellite in 1957 created. The sense of panic that accompanied the idea that the US was falling behind the Soviet Union in science and technology no doubt helped policymakers override religious believers. These developments led to the next round of court cases.

Recall that even as late as the 1960s, the 1925 Butler Act prohibiting the teaching of evolution was still technically on the books in Tennessee as being constitutional although in the wake of the Scopes trial nobody had enforced it. Texas and Louisiana had also passed laws prohibiting any mention of evolution in textbooks that were approved by the state. ((Summer for the Gods, Edward J. Larson, 1997, p. 221)

In 1928, Arkansas (like Tennessee in 1925) had passed a law by popular referendum that made it unlawful for a teacher in any state supported school or university to teach or to use a textbook that teaches “that mankind ascended or descended from a lower order of animals.” This law, like the Butler Act after Scopes, was also never enforced until 1965 when the state adopted the BSCS textbooks that emphasized evolution. But since the law banning the teaching of evolution was still on the books and since the new textbooks explicitly required the teaching of evolution, the state teacher’s organization saw the opportunity to put the law to the test and challenged it using, as in Scopes, another young biology teacher (Susan Epperson) as the key player, this time as the lead plaintiff challenging the validity of the law, rather than as someone accused of breaking the law.

The trial judge ruled in favor of Epperson and overturned the law on the grounds that it unconstitutionally limited the teacher’s freedom to teach about theories of origins. The state appealed and the Arkansas Supreme Court overruled the trial judge saying that the Arkansas law was a valid exercise of the State’s power to specify the curriculum in public schools.

(As a footnote, as the Arkansas case worked its way up to the Supreme Court, in Tennessee another teacher Gary Scott was threatening to take similar legal action against the Butler Act. This case was initiated in 1967 and coming along at the same time as the release of the memoirs of Scopes, had the potential to make Tennessee the laughing stock of the nation again. This put pressure on the state legislature and in 1967 they finally decided to repeal the Butler Act, bringing that particular chapter of the religion-evolution wars to a close, although other battles would continue.)

So after the passage of more than four decades, the Epperson case achieved what the Scopes case had aspired to do but had failed: be a test case on basic First Amendment issues to be adjudicated by the US Supreme Court. When the Epperson v. Arkansas case finally reached the US Supreme Court in 1968, the court unanimously ruled that the statute effectively banning the teaching of evolution was unconstitutional. But the court but did not agree on the reasons for doing so. Most initially wanted to overturn it on the grounds that the statute was too vague rather than that it violated the establishment clause, but in the end Justice Abe Fortas wrote the majority opinion saying that it was indeed a First Amendment establishment clause violation.

In the summary of the ruling on Epperson v. Arkansas 393 US 97, it states among other things:

“(b) The sole reason for the Arkansas law is that a particular religious group considers the evolution theory to conflict with the account of the origin of man set forth in the Book of Genesis. . .

(c) The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion. . .

(d) A State’s right to prescribe the public school curriculum does not include the right to prohibit teaching a scientific theory or doctrine for reasons that run counter to the principles of the First Amendment.. . .(my italics)

(e) The Arkansas law is not a manifestation of religious neutrality.”

Note that in the italicized section, the court rejects simple majoritarian thinking, saying that constitutional restrictions limit the power of school boards to completely prescribe the curriculum.

But while the 1968 Epperson ruling was a clear victory for the teaching of evolution and provided the definitive answer that the 1925 Scopes case had sought and failed to deliver, the opinions of the various judges provides some interesting perspectives and arguments that are worth reviewing, and will be the subject of the next post.

POST SCRIPT: Teasing telemarketers

Telemarketers are annoying but I also feel sorry for them because it must be a really awful job. I do not give them a hard time, instead politely terminating the conversation quickly. But someone named Tom Mabe decided to have some fun at the expense of a telemarketer.

From Scopes to Dover-15: Religion gets edged out of schools even more

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

In the previous posts, we saw that by the first half of the twentieth century, the idea of the separation of church and state had taken such hold in the country that most religion-based practices had been taken out of the schools, although a few practices still remained. As religious groups tried to get more religion back into the schools, these various efforts led to more court cases.

The next major religion in schools case came in 1948, the year following the landmark Everson ruling, as a result of the growing practice of public schools granting ‘release time’ for the teaching of religion. This practice arose because some parents felt that relegating religious instruction to just the weekends to be done by private individuals or priests diminished the importance of religion in the eyes of children when compared to the secular curriculum taught as part of the regular school day. So they requested and received permission from schools to use part of the school day to teach religion, although the details of implementation varied from place to place.

In the case McCollum v. Board of Education (333 U.S. 203), a parent challenged the release time policy of the local public schools, whereby thirty to forty five minutes were set aside each week for teachers of religion, paid by a private consortium of religious organizations, to come to the schools to provide religious instruction to students whose parents had consented to have them attend. Children whose parents did not want such instruction for their children had to leave their classrooms and go to other parts of the building for secular studies. One such parent challenged the practice and the case went all the way to the US Supreme Court.

The Supreme Court in an 8-1 decision ruled that this practice was unconstitutional and effectively barred all religious instruction within public schools. Citing the Everson guidelines, Justice Black in his majority ruling struck down this policy saying that this use of the public school building and time to further religious education:

is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith.
. . .
For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.

Here not only are the State’s tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State’s compulsory public school machinery. This is not separation of Church and State.

1952 saw a variant of the McCollum case Zorach v. Clauson, 343 U.S. 306, in which schools would authorize students during school hours, on written requests of their parents, to leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises. In this case, the US Supreme Court ruled in a split decision that this practice did not violate the establishment clause.

The next major case that resulted in further separation of religion and schools was in 1962 in Engel v. Vitale 370 U.S. 421. The New York state Board of Regents had adopted a policy whereby each class had to begin each day by saying aloud in the presence of the teacher the following prayer: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.”

Ten parents filed an objection to this so-called Regent’s Prayer. The US Supreme Court struck down the policy saying that having such governmental composed prayers, even if every student were not compelled to say it aloud, was unconstitutional. The ruling said that “state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day — even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited.”

Justice Hugo Black was again the author of this majority 6-1 opinion, and in it he said that: “The respondents’ argument to the contrary, which is largely based upon the contention that the Regents’ prayer is “nondenominational” and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer, but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program’s constitutional defects. . . When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.”

He drew upon history arguing that this kind of state-sponsored religion was precisely what the early colonialists had tried to escape in Europe and he deplored the tendency of people who oppose acts when they are in the minority singing a different tune when they become the majority. “It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America.. . .It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies.”

Black rejected the argument that prohibiting practices such as this was demonstrating hostility to religion. He said that the founding fathers were instead trying to avoid the pitfalls that inevitably ensue when religion and the state get entangled, saying that they had “well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to.”

Next: All prayer and Bible reading in schools is ruled unconstitutional

POST SCRIPT: Dover trial on Nova

The PBS show Nova is having a two-hour special documentary on the Dover trial called Judgment Day: Intelligent Design on trial, which is what my current series of posts is leading up to. If I was better organized, or not as long-winded, my series would have started earlier and my final posts, which deal with this trial would have coincided with the broadcast. Oh, well,…

The show is scheduled to be broadcast tomorrow (Tuesday, November 13, 2007) at 8:00pm EST but check your local PBS station for exact dates and times.

Here is a preview of the program

There is also a companion website.

From Scopes to Dover-14: Religion gets edged out of the schools

(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.

From Scopes to Dover-13: Rising calls for the separation of church and state

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

At the dawn of the 19th century, while explicit support for specific religious instruction to advance a particular sectarian view was frowned upon, the fact that almost all the colonialists were Protestants meant that much of what we would now view as religious education was seen by them as simply ordinary education. Their view of the purpose of schooling was closely tied with teaching morals and values and these were believed to be religion-based. So while people were cool to the idea of the state supporting specific churches, they did not view a generic Protestant Christian ideology as representing a ‘church’. It was seen as merely the personal beliefs of individuals which just happened to be shared by most people, and thus were ‘natural’.

Since the schools were under local control and thus represented relatively homogeneous groups of Protestants, no challenges emerged to such tacit support for religion in those communities. As Philip Hamburger writes in Separation of Church and State (2002, p. 220), even in New York City, which was more diverse than the rest of the nation, the idea of a generic Protestantism as not being explicitly religious but merely neutral held sway.

Since the early 1820s, when it first acquired authority to distribute public school funds, New York’s City Council had denied such funds to all sectarian institutions, including Baptist, Methodist, and Catholic schools. Instead, it gave most of its funds to the schools run by the Public School Society – a privately operated nondenominational organization. Yet the ostensibly nonsectarian schools of the Public School Society had some broadly Protestant, if not narrowly sectarian, characteristics. One goal of the society was “to inculcate the sublime truths of religion and morality contained in the Holy Scriptures,” and its schools required children to read the King James Bible and to use textbooks in which Catholics were condemned as deceitful, bigoted, and intolerant.

Needless to say, Catholics did not share the view that this was a religiously neutral education, and as the number of Catholics in the city rose due to immigration from Ireland, they started pressing for public funds to create their own schools free of anti-Catholic bias and to teach their own brand of Christianity. But Catholics were widely seen at that time as being too much of a monolithic body, too subservient in their thinking to their priests and the Pope, and thus their allegiance to the new republic was seen as suspect. Some non-Catholics even went to the extent of suggesting that since the Catholic Church seemed to demand great obedience from its parishioners, such people had ceased to be independent thinkers and were thus not even worthy of being allowed to vote in a democracy. (Hamburger, p. 234-246)

Of course, when it was pointed out that the Public School Society still required students to read the Bible and other religious materials and thus could hardly claim to be religiously neutral, it “defended its position that its publicly supported schools were nonsectarian by offering to black out the most bigoted anti-Catholic references in the textbooks. It refused, however, to withdraw the King James Bible, which, although Protestant, no longer seemed to belong to any church.” (Hamburger, p. 223)

The request by Catholics for funding of their own schools was opposed as leading to an alliance of church and state. In fact it was to deny the demands by Catholics for the funding of their own schools that led to the idea of separation of church and state gaining popularity. Up to that point, people had largely viewed the founding principle of the country, as enshrined in its constitution and associated documents, as prohibiting a union of the state with an organized church. The idea of the separation of church and state was an idea contained in a letter that Thomas Jefferson wrote in 1802 to a committee of the Danbury Baptist Association in which he said: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” (Hamburger, p. 1)

The latter view (creating a separation of church and state) was a much stronger statement than the former (preventing a union of church and state) and it started gaining ground in the mid-19th century onwards mainly as an argument to prevent Catholics from gaining funding for their own denominational schools.

This idea of separation (as opposed to preventing union) gained further ground when Pope Gregory XVI, in an encyclical published in 1832, condemned the doctrine of separation of church and state. This move backfired because it increased the fears of Protestants in America that the Catholics were seeking to eventually dominate the US, and thus increased support for the doctrine of separation of church and state as a way of limiting the ambition of Catholics. As I said before, the various Protestant sects could embrace this separation doctrine because they did not see themselves as acting as a single “church” but as individuals who happened to share a broad Protestant ethic. They thus excluded themselves from the ‘sectarian’ label and saw the separation of church and state as a way of maintaining the status quo.

Like so many other Protestants, Baptists desired to exclude any particular church from public institutions but welcomed Bible reading and other elements of Protestant religion, which seemed to be the faith of free individuals. In the 1870s, for example, although some Baptists protested the introduction of the Bible into public schools and argued that “the state had no right to teach religion,” most Baptists saw no reason to go so far. As one Baptist, George C. Lorimer, explained in 1877: “The position of the Bible in the schools is not the result of any union between Protestants and the State; nor was it secured by the political action of one denomination, or of all combined. The Church, as such, did not put it there, and the Church, as such, cannot take it away. Instead, the “people” put the Bible in the schools.” (Hamburger, p. 283-284)

So even as the idea of the separation of church and state was gaining popularity, it was not initially seen as a call for the separation of Christianity and the state. As is usually the case when a belief structure is ubiquitous, its adherents tend to see it as ‘normal’ and ‘natural’ and ‘obviously’ true, and not merely one of a spectrum of possible views.

But as the idea of separation of church and state became more widely accepted, it was inevitable that people, especially those who did not share these common beliefs, would see the benefits of extending that concept to mean that there should be a complete separation of religion (including Protestant Christianity) and the state. As Hamburger points out, initial calls for this stronger separation took the form of arguing that this was what the Founding Fathers had desired but not explicitly provided for in the constitution, and thus there were calls for a constitutional amendment to firmly entrench this principle into law.

These calls for a constitutional amendment mandating the separation of church and state gained ground. As part of this drive, there were calls for the abolition of chaplains in publicly supported institutions, prohibiting the use of the Bible (either as a textbook or as a source of religious worship) in public schools, replacing religious judicial oaths with secular affirmations, abolishing tax exemptions for religious institutions, and so on. (Hamburger, p. 302-304) Even President Ulysses S. Grant urged stronger separation when he ran for reelection in 1875, advocating an amendment that would “[d]eclare Church and State forever separate and distinct, but each within its proper sphere.”

In a speech made in 1875 to the Convention of the Army of the Tennessee, Grant said that the country should “Encourage free schools and resolve that not one dollar appropriated for their support shall be appropriated for the support of any sectarian schools. Resolve that neither the state nor the 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 dogmas. 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 separated.”

The separation movement gained ground as members of the various Christian denominations saw it as a means of preventing any particular denomination, particularly Catholics, from gaining supremacy in teaching their particular doctrine to the exclusion of the others. The idea of an amendment to the US constitution implementing stronger separation reached its peak around 1875 but failed to come to fruition, and that plan was eventually abandoned. But it did achieve some results, with Congress passing laws requiring any new state seeking admittance to the union to have clauses in their state constitution mandating the separation of church and state.

Next: A shift in strategy.

POST SCRIPT: Levitation

I sometimes hear from people who have witnessed seemingly paranormal phenomena (such as ‘mind reading’) with their own eyes and are convinced that people with such powers exist. They assert that they would have detected any trickery. I am reminded of what magician James Randi said, that it is really easy to fool people, and the more well educated they are and the more confident such people are of their own smartness, the easier it becomes.

I like magicians. Apart from the fun of watching them do their tricks, such people are a useful reminder of how we must be cautious of taking at face value even the things we “see” with our own eyes unless it is under tightly controlled conditions supervised by people who know the world of trickery and illusions.

Here is Dutch magician Ramana doing a levitation trick.

You can read and see more about Ramana here and here.

Apparently Ramana also does ‘mind reading’.

From Scopes to Dover-11: The Scopes verdict appealed

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

The Scopes ‘monkey trial’ came to an abrupt end on the eighth day, Tuesday, July 21, 1925.

The judge began the day by stopping the questioning of Bryan from continuing and ordered his previous day’s testimony stricken from the record. But the damage had been done since the point of the case, after all, was not to persuade the jury in the room but to score points to a wider nationwide audience. Darrow had exploited his line of questioning of Bryan to gain a major propaganda victory for science, in the full glare of the national media, by showing that religious beliefs like Bryan’s led to an intellectual cul-de-sac.

Following the judge’s ruling on ending Bryan’s testimony, the defense promptly rested its case and Darrow made a brief statement asking the jury to bring in a verdict of guilty. He told them:

As far as this case stands before the jury, the court has told you very plainly that if you think my client taught that man descended from a lower order of animals, you will find him guilty, and you heard the testimony of the boys on that questions and heard read the books, and there is no dispute about the facts. Scopes did not go on the stand, because he could not deny the statements made by the boys. I do not know how you may feel, I am not especially interested in it, but this case and this law will never be decided until it gets to a higher court, and it cannot get to a higher court probably, very well, unless you bring in a verdict.

The defense’s strategy all along had been to argue against the Butler Act on constitutional grounds in the appellate courts, hopefully all the way to the US Supreme Court. In order to have grounds for such an appeal they needed to have Scopes found guilty in the lower court. Since pleading guilty at the outset would not have allowed Scopes to appeal, he had to plead innocent and yet be convicted, which explains the seemingly strange request of a defense counsel asking the jury for a guilty verdict.

But there was an additional benefit by resting the case without presenting a closing statement for the defense and simply asking for a directed verdict of guilty. According to trial rules, the defense not making a closing statement meant that the prosecution could not make one either. The defense was executing a deliberate strategy to prevent the prosecution, especially Bryan, from having the last word and making its own closing statement. So rather than Bryan ending the case with the kind of grand, eloquent, and sweeping speech that The Boy Orator was famous for, the last impression that he left was his dismal performance on the witness stand. Darrow had outmaneuvered Bryan again.

The jury duly complied with Darrow’s request and after just a few minutes deliberation returned with the verdict, finding Scopes guilty. There then occurred a seemingly trivial bit of court business that would result later in the case not having the legal impact that had been sought. The jury said they had not decided on the size of the penalty and judge said he would impose the minimum sentence required by law, which was $100. The chief prosecutor said that he thought that Tennessee law required the jury, not the judge, to set the fine, but the judge said it was his understanding that as long as it was just the minimum fine, he could set it. All sides agreed to go along with this.

The case ended with both sides claiming victory, the prosecution getting a guilty verdict, the defense claiming that they showed the superiority of science over religion.

As epilogues to this part of the story, William Jennings Bryan died in his sleep just five days later, his death so soon after the grilling by Darrow giving him the air of a martyr and recapturing some of the momentum that the antievolution movement had lost because of the trial. Scopes accepted a scholarship offer to the University of Chicago and became a petroleum engineer. For most of the rest of his life he avoided the limelight and passed up speaking offers. Dayton, Tennessee returned to being a sleepy little town.

The case now went to appeal to the Tennessee Supreme Court. Many people on the defense side, including the ACLU, tried to have Darrow removed from the defense team for the appeal since they wanted the appeal to focus on the issue of free speech and feared that Darrow’s strong antipathy to religion would result in the religion issue dominating once again. But Darrow and his allies outmaneuvered them and he stayed on.

The Tennessee Supreme Court heard oral arguments in May 1926. There were many briefs filed on both sides, the state again arguing the majoritarian view that what the elected representatives decided was binding whatever its merits, basing its argument on a recent US Supreme Court judgment that had upheld compulsory school vaccinations because of the public good. The case for the state said, “What the public believes is for the common welfare must be accepted as tending to promote the common welfare whether it does in fact or not.” (Summer for the Gods, Edward J. Larson, 1997, p. 214) The state also argued that the Butler Act was not meant to promote any sectarian religious belief but instead was designed to level the playing field in education, that since the Bible could not be taught in public schools, anti-Biblical theories should also not be taught. They asserted that those challenging the statute were doing so to advance atheistic views and referred to Darrow’s well-known opposition to religion to support their case.

The defense countered that “this theory would absolutely nullify constitutional government and inaugurate the dictatorship of the majority.” In oral arguments, defense counsel Arthur Garfield Hays said that the Fourteenth Amendment to the US Constitution prevented the state from enforcing unreasonable laws and “Tennessee’s “absurd” antievolution statute violated this standard as much as a law against teaching Copernican astronomy would.” (Larson, p. 215)

Darrow argued a point that has continued to be debated to this day, that the anti-evolution statute in question was not designed to foster neutrality in education but that opposition to the theory of evolution essentially sprang from a religious foundation that was hostile to science, and thus any attempt to suppress its teaching was an attempt to advance religious views at the expense of science, and that this went counter to the purposes of public schools.

Even while the appeal was being made, the defense expected that the Tennessee Supreme Court would uphold the lower court conviction, and set about planning the appeal to the US Supreme Court, which is where they hoped to win the case on free speech grounds and thus advance individual liberties.

But in a surprise maneuver, the Tennessee Supreme Court did something that prevented the defense team from achieving its goal of having the Scopes trial serve as the first major victory for the ACLU in defense of free speech. In its ruling, the court first upheld the constitutionality of the state law saying that the Butler Act did not give any preference to any religion since it did not require teachers to teach anything specific. But it then overturned Scopes’ conviction on a technicality that neither side had raised in the appeal or objected to in the original trial, and that was that according to Tennessee law, the fine of $100 levied on Scopes should have been set by the jury and not the judge.

Since Scopes was now unexpectedly a man with no conviction against him, no further appeal was possible and this particular constitutional challenge ended with a whimper and not a bang, with no constitutional principle established. The issue of whether it was constitutional to ban the teaching of evolution in public schools was not resolved for another four decades, when the US Supreme Court ruled in the 1968 case of Epperson v. Arkansas, to be discussed later.

In fact, the Butler Act stayed officially on the Tennessee books, but not enforced, until 1967, when the threat of legal action was raised by another biology teacher. The state legislature then decided that having Tennessee associated with one Scopes-like spectacle was enough and the Act was finally repealed.

But while the Scopes trial did not set a legal precedent, the publicity surrounding it and the play and film depicting it ensured that ever since then it is never far from the minds of people who have had to grapple with the teaching of evolution in schools.

Next: The historical role of religion in US public schools

POST SCRIPT: Bob’s amazing mind reading ability

In a previous post, I described the funny TV sitcom from the 70’s called Soap. Bert’s son Chuck treated his even-present ventriloquist dummy Bob like he was real and eventually so did some of the others. Here is a clip from the show. Look at Bert’s wife Mary. She does not say much but Cathryn Damon was superb in the way she used facial expressions for comedic effect.

Mano Singham

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