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The Bishops and the Court: Two Tales of Church and State

–Gerard V. Bradley
University of Notre Dame

Shortly after World War II the Supreme Court amended our constitutional law of church and state. The justices did not follow the intricate scheme for amendments found in Article V. That process, currently in the news because of a proposed amendment to limit marriage to the union of man and woman, requires enormous political exertion: two-thirds of each house of Congress, along with 38 states, have to agree upon any proposed change to make it part of our fundamental law. The Supreme Court proceeded with much more alacrity. The nine justices simply voted to change the law, all the while protesting that they did no such thing. They said that they followed the command of our Founders. They surely did not.

The key cases were Everson and McCollum, decided in 1947 and 1948, respectively. The American bishops understood exactly what was happening in them, and publicly challenged the Court. On November 21, 1948, the Administrative Board of the National Catholic Welfare Conference (the forerunner of the USCCB) published in all the bishops’ names a document titled, "The Christian in Action". The bishops criticized the two Court decisions for adopting an "entirely novel...interpretation" of the First Amendment, a reading which would endanger our "original American tradition" of what the bishops called "free cooperation between government and religious bodies – cooperation involving no special privileges to any group and no restriction on the religious liberty of any citizen".

The bishops were right. Everson and McCollum were indeed "entirely novel" accounts of the First Amendment clauses prohibiting the "establishment" of religion and protecting its "free exercise". These fresh interpretations really did "endanger" our "original American tradition". That founding tradition was truly marked by "cooperation" between government and religion, a relationship involving, however, no inequality among religions and no coercion of belief.

Here is as good a capsule picture as you will find of that founding tradition. It is a well-known passage in a work called Commentaries on the Constitution of the United States, by Joseph Story, who served on the Supreme Court for most of the first half of the nineteenth century:

Probably at the time of the adoption of the constitution, and of the [first] amendment to it..., the general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all religions in utter indifference, would have created universal disapprobation, if not universal indignation.

Everson and McCollum rejected this arrangement, root and branch. In its place the Court adopted a new master norm, binding upon all the nation’s governmental bodies, from the United States Congress all the way down to the smallest rural school district in Georgia. The new constitutional rule was this: no public authority could aid or promote or encourage religion, even where it would do so without discriminating among religions, and even where no one at all was coerced. The Justices said that they were going beyond equality among religions (in truth, the original meaning of non-establishment); they would let no public body prefer religion over "non-religion". This innovation meant that no public authority could say or signal in any way that religion is good – for people themselves or for good government, or both. To "endorse" (the Court’s current term of art) religion in this way would violate the Constitution’s command of "neutrality".

The new master norm subordinated the free exercise of religion to any appearance or trace of its establishment. Even where (as in Everson) public assistance to believers actually helped them to live out their freely chosen religious commitments – in that case, subsidized bus rides for little kids to Catholic schools – the Court struck them down. Maintaining the government’s (alleged) "neutrality" towards religion was more compelling than helping people to be the people they freely chose to be.

Most students of the Constitution agree that it was precisely the other way around: non-establishment was a means or a condition of free exercise. One way that people enjoyed freedom of belief was by being free of compulsory support for and deference to one sect or church. No wonder that the great Jesuit commentator John Courtney Murray aptly of these cases wrote after McCollum, "The First Amendment has been stood on its head. And in that position it cannot but gurgle juridical nonsense."

The bishops were exactly right. In this talk I defend their conclusion , and argue further that they were the main reason why the Court abandoned the tradition. Behind Everson and McCollum lies, not the history of the founding, but the fear of Catholic political and cultural power was behind the judicial revolt of the 1940's. All the while the justices quoted Madison and Jefferson they had in mind Cardinal Spellman..

I

Let’s take a longer look at the founding tradition, the one the Court mangled, the bishops cited, and that Justice Story long ago described. The place to begin is here, in Ann Arbor Michigan. For this land, and all the land now comprising Indiana, Illinois, Michigan was once bunched together and known as the "Northwest Territory". That was the case in 1787, when the Constitution was written; only with Ohio’s admission to the union as a state in 1803 did this territory begin to break up.

All this land came under the direct government of the United States Congress. The Constitution says that Congress shall have power to make "all needful" rules respecting the territories of the United States. Now we have few territories; Guam is one. But even late in the 19th century, most of the continental United States was under Congress’s control, because it was composed of territories. The very large states of Montana, Wyoming, Utah, Arizona, New Mexico were territories, originally been acquired in the 1803 Louisiana Purchase, were still under Congressional control. Our knowledge of this vast expanse began with Lewis and Clark’s daring journey.

The basic law which governed the land on which we meet was called, unimaginatively enough, the "Northwest Ordinance." The part interesting to us today read: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education should forever be encouraged."

I want to focus on that one sentence in the Northwest Ordinance because, in my judgment, it perfectly expresses our great national commitment to cooperation between government and religion, in large measure for the sake of public morality. It indicates as well how natural law and positive law were to work together for the good of us and our country. I want to draw from this one sentence a few implied truths, and see how this one-sentence summary confirms what the bishops said back in 1948.

But note well: this sentence was no one-statute wonder. The same formulation was used by the United States Congress many times through the nineteenth century; it appeared in several bills which, like the Northwest Ordinance, were called into being as the fundamental law of vast territorial swaths. Generations of Congressmen were firmly committed to the propositions in the sentence, and liked the results of making it part of a territory’s organic law.

"Religion, morality, and knowledge, being necessary to good government and the happiness of mankind . . ." That is the same as saying that religion, morality and knowledge are necessary to good government and mankind’s happiness. Our forefathers firmly believed it was so and they said, accordingly: let us encourage schools.

Because religion, morality and knowledge are essential, let us encourage schools. Obviously, schools would not only impart knowledge – the 3 R’s and the like. They would also do something – something helpful or good -- to or about religion and morality. The Northwest Ordinance does not literally say that the schools would teach or inculcate religion and morality. But we can be sure that was the idea. For we can be sure that schools promoted and inculcated knowledge; otherwise, one can scarcely imagine them doing anything. Lumped together in the schools’ mission statement (as we might call it today) religion and morality with knowledge. No distinction is made; none was evidently intended. Whatever Congress’s judgment was about knowledge (it was positive), and whatever schools were supposed to do with knowledge (teach it to students), the same for religion and morality. Schools had a three-part educational task: religion, morality, knowledge.

We are not talking about parochial schools here, of which there would have been very few, if any, on the frontier. We are talking about publicly supported town schools, which were told by Congress: teach religion and morality! This was the time which, according to the Supreme Court, our ancestors constitutionalized the doctrine of no encouragement of religion at all.

The Northwest Ordinance was not some idle wish list of platitudes. Historians tell us that Congress made concrete provision to bring the benefits of religion, morality, and knowledge to the territories One lot in each township was reserved for schools, another for religion, usually for the congregation which first offered to actually build a church edifice. This was a clear-cut government gift of land to religious bodies for religious purposes. Query: is this aid to religion, so common at and after the founding, consistent with the Court’s strict separationist reading of the history? The Court says that religion is a private matter which should be invisible to government, no more to be valued or encouraged by the government than atheism or irreligion.

"Religion, morality and knowledge". But which morality? It could not be the subjectivist morality all around us, where what works for you is good for you and your kind, but that does not mean it is valid for me. The Northwest Ordinance makes no sense if morality is subjective. If morality is individualized, what would schools actually teach the whole class? If morality is subjective, what possible basis – even what sense – could there be in saying that it is good for people and for government? If morality is subjective then there is no (singular) "morality". There are just so many "moralities", and no one could reasonably judge them all good for government. Some surely would not be.

The historical truth is that early American schools taught and inculcated an objective morality --the common morality of Christians and Jews. It was biblical morality, the Ten Commandments, Jesus’s fulfillment of the Law. It was virtuous habits, such as temperance and frugality. The truth is that schools taught these sublime matters well into the twentieth century, and persists, under the radar screen, in some parts of the country today.

How was this morality related to religion? Some people thought you needed religion to know the good and to do it; others, just to be good. The first group believed that the intellect and character of humans were so corrupted by sin that good and evil appeared to them as gauzy, indistinct alternatives, all the more evanescent because humans were so prone to rationalize their sinful ways. What we see in our rear view mirrors we easily convince ourselves is fine, or as good as possible. Religion – more specifically, revelation and its transmission by authoritative teachers (churches) – dropped the scales from our eyes.

Some people at the founding thought that the human mind, despite the corrupting effects of the Fall, could grasp the truths of morality. Some behavior was known to be wrong for everybody, in all places and at all times. Adultery, murder, and bearing false witness were always and everywhere wrong. These things were not wrong because humans had decided to call them wrong, or because some king or legislature said they were wrong. The were and are naturally wrong. Though early Americans did not always use the term natural law, many believed in the concept: universal moral norms, knowable – in principle – by unaided human reason. This second group realized, however, that we all needed help to be good. Religion was the greatest of all helps – because it promised eternal reward to the righteous, and misery forever to the evil.

The Northwest Ordinance says that these things we have discussed – religion, morality, knowledge – are to be taught in schools because they are "necessary" to two things: the "happiness of mankind" and "good government". By "happiness" they did not mean gaiety or fun or recreation. They meant integral human flourishing or goodness. Our founders are heard to say, flatly and without qualification or embarrassment: the goodness of people considered by itself is public business, and we – the lawmakers – have an idea about the constitutive features of human well-being: it comprises (among other things) religion, morality, knowledge.

The goodness of people is necessary to good government. How often over the last decade or so have we heard the Holy Father say about democracy: it is not just machinery for registering preferences? Left to itself and viewed as a system, it is cannot but end in relativism, a numbers game in which the strong dominate the weak and guileless. Every form of government, democracy included, is subject to the judgment of an objective morality. Where the necessary moral character is lacking in citizens, however, democracy cannot work.

Recall that I said that "natural law" is what is simply true about right behavior. "Positive law" is human law, man-made law, directives of public authority – like the Northwest Ordinance. The human or positive law was made presupposing the natural law. They worked together, one might say, to help people be good and to make good government possible.

Here is my restatement of what we have found in the Northwest Ordinance: religion and morality are part of the good human life, and government should help people to be good. It is also essential to the success of good government that people be good. This was, I submit, the view of the overwhelming majority of people in this country — and the guiding public philosophy in this country — until well into the 20th century. It is still the conviction of many, many American — most, I pray.

II

I should like now to turn to why. Why did the Supreme Court fifty years ago abandon our heritage? As we have by now seen, the Court was not following the command of history, much less was it simply applying constitutional language. No, the justices were legislating. They freely enacted a brand new master norm which they must have thought the times required – their times, not the founders’ time.

What was the Court up to? The most telling piece of evidence is that, following the Court’s conference on the Everson case, Justice Wiley Rutledge, a devout Baptist who embraced that sect’s notion of complete separation of the Garden from the Wilderness, wrote in a memo to the brethren: "We all know that this is really a fight by the Catholic schools to secure this money from the public treasury. It is aggressive and on a wide scale." Capable historians such Michael Smith and my Notre Dame colleague John McGreevey have shown how anti-Catholicism – in its common American form of fear about Catholic political and culture-forming power – infected the Court from the 1940's all the way through the 1970's. Anti-Catholicism is the answer to the question, why.

But why anti-Catholicism? What about the Roman church, its doctrine or practices or leadership, lies at the heart of the anti-Catholicism which lies at the heart of Everson?

Anti-Catholic bigotry has an unfortunately long pedigree in the United States. The Bill of Particulars in the indictment against Catholics has been remarkably constant throughout American history. One charge was effaced by the course of European history: the claim that Catholics owed allegiance to a foreign temporal prince. That charge was always joined to one which survives: Catholicism is undemocratic because it compromises the individual’s proper spiritual autonomy. Related to this accusation is another hardy charge: that when they act politically – vote, serve in legislatures, work for candidates – Catholics do not think for themselves. They instead follow slavishly the dictates of their priests, where they do not serve contemptible party bosses. Often, according to the indictment, they do both. Catholics have long been said to behave undemocratically by not trusting their own religious "experience" as a guide to authentic spiritual life; rather, they hold to "immutable" (read: ossified) "metaphysical" truths. Between WW II and the Second Vatican Council, Catholics were criticized for rejecting the linchpin of democracy, the First Amendment’s "separation of church and state" .

Perhaps the central charge made since Vatican II: Catholics behave undemocratically by trying to "impose their morality" upon others in our pluralistic democracy, especially regarding matters of sexual morality. This charge could only have arisen, as it did, after the abandonment by other churches of the common morality, or of a commitment to a decent public morality, or both. Listen to any discussion these days about abortion law or about the legal definition of marriage. Before long you will detect the traces of this shameful prejudice, especially when the Pope, or the American bishops, have recently said something on the subject.

Anti-Catholic prejudice was revivified by the War. We know that the war against fascism called forth among Americans a profound re-commitment to "democracy" (and "freedom"). That is what we were fighting for. We were not fighting for an impersonal system, or for a set of political practices. We fought for "the democratic way of life", a political culture with deep roots in character, belief, psyche. Now, "democracy" or "democratic theory" was splintered into two camps. One group held beliefs much like those articulated in out time by Pope John Paul II: democracy depends a citizenry possessed of moral truth.

The opposing camp saw moral truth as a phantom, a superstition which, when possessed of citizens’ minds, led straight to authoritarianism, if not to outright fascism. These folks favored a pragmatic scientific spirit, and relativism in morals. These folks won. And we see, right there in the Supreme Court cases during and shortly after the War, an explicit link between our "democratic way of life" even our "democratic faith" and secularism, particularly, and in a very aggressive form, in public education.

Here is a nice illustration of the point. It is from the oral argument in McCollum, which took place on December 8, 1947, just ten months after the shocking Everson declaration against any and all government help to religion, even if the help was non-discriminatory and non-coercive.

Justice Frankfurter made this point to John Franklin:

I put my question again: we have a school system of the United States on the one hand, and the relation it has to the democratic way of life. On the other hand we have the religious beliefs of our people. The question is whether any kind of scheme which introduced religious teaching into the public school system is the kind of thing we should in our democratic institutions. [emphasis added].

Frankfurter answered his own question: because a few religious groups opposed Champaign’s shared time program, it was "offensive" and caused "controversy". Its incompatibility with our democracy needed no further proof.

The worry at the heart of McCollum was most succinctly expressed by Justice Brennan, in Abington School District v. Schempp, the 1963 case which banned devotional Bible reading from the public schools. Brennan was then the Court’s lone Catholic. He referred to a choice between a public school and its harmonious relation to the democratic way of life, and parochial schools which have "values of their own". Brennan meant that parochial schools – and he surely had in mind Catholic Schools – are at odds with the cultural values which sustain our political system, our democracy.

Conclusion

Justice Brennans’s worry was part of the wider development, initiated in 1947 and carried forward to this day, which turned our Constitution upside down: our country was founded upon the conviction that religion and morality in the schools was the safeguard of our polity. Beginning with Everson that conviction was turned upside down, just as Father Murray observed. While the Court may not be "gurgling nonsense" - there is sense, if not truth, in stereotypes and prejudice – now religion is kept out of schools to safeguard our secular polity.

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