A Strict Separationist Speaks

Steven K. Green, formerly of Americans United for Separation of Church and State, is a friendly nemesis. He and yours truly have debated each other on multiple occasions, and we often disagree about how church and state should be related. Yet Green, the Fred H. Paulus Professor of Law and Affiliate Professor of History at Willamette University, is a serious scholar, and his new book shines important new light on 20th century church-state relations.

The Third Disestablishment explores what Green calls “the third transformative era in church-state attitudes and relations”—roughly from 1940 to 1975. It does so primarily by recounting the major Establishment Clause cases from that era, but with an eye to broader cultural conflicts. He makes three distinct claims:

  • “A jurisprudence of ‘strict separationism’ . . . was always more of an ideal than a reality”;
  • “The justices in Everson and McCollum never agreed on the meaning of separation”; and
  • “The Protestant-Catholic conflict in the United States during the 1940s and 1950 was more pronounced than is generally acknowledged today.”  

His main thesis is that “despite the visibility of the Protestant-Catholic conflict of the 1940s and 1950s, that controversy was essentially of secondary importance to the larger debate over the public role of religion in American culture.”

Green begins by providing an overview of Protestant-Catholic relations in the 1920s and 1930s. He contends that the First World War encouraged American Catholics to cooperate across ethnic lines in new and significant ways. They began speaking with increased confidence in the debates of that time, for instance, in favor of censoring sexually explicit or sacrilegious movies.  Protestant leaders often favored similar bans, but Catholic calls for censorship raised, in some minds, the specter of theocracy.

Philip Hamburger, in Separation of Church and State (2002), makes an important argument that advocates of strict separation in the mid-19th to mid-20th centuries were often motivated by anti-Catholic animus. Without engaging in anti-Catholic bigotry himself, Green points out that the concerns expressed—that some Catholic doctrines were inconsistent with American democratic norms—were not in every case unfounded. Most relevant for this study, numerous papal encyclicals were critical of religious liberty and church-state separation. Of course, many American Catholics were unfamiliar with these encyclicals. Other American Catholics, such as the Jesuit John Courtney Murray, actively challenged them. But the Vatican, as if to reinforce its apparent opposition to civil liberty, censured Murray in 1954, and the Jesuit Father General prohibited him from writing about church-state matters.   

The Second World War unified Americans in many ways, but Protestant-Catholic suspicions remained. Shortly after the war, the anti-Catholic polemicist Paul Blanshard began his meteoric rise to fame as a critic of Catholic power. Coinciding with his ascent, an organization with nativist roots challenged a New Jersey program that reimbursed parents for the cost of transporting their children to parochial schools. The Supreme Court’s decision in Everson v. Board of Education (1947) applied the Establishment Clause to the states, and Justices Black and Rutledge agreed that the Establishment Clause must be interpreted in light of the Founders’ separationist views (a problematic historical argument). Remarkably, given his lofty separationist rhetoric, Justice Black’s majority opinion held that the reimbursement program did not violate the Establishment Clause.  

Hugo Black was a onetime member of the Ku Klux Klan, and his son recalled that he “read all of Paul Blanshard’s books.” As well, according to Hamburger, at least seven justices on the Everson court were members of “one Masonic organization or another.” Anti-Catholic animus was obvious in only Justice Jackson’s dissenting opinion in Everson, and Green contends that there is “no causal link between anti-Catholic animus and judicial decision-making.” But he recognizes that distrust of the Catholic Church informed popular Protestant support for separating church and state in this period.    

Eleven days after Everson was decided, Senator Robert Taft (R-Ohio) introduced a federal education bill that would have provided grants to states, which could in turn distribute funds to public and private schools—including religious schools. The possibility of federal funds’ making their way to religious (especially Catholic) schools led James M. Dawson, director of the Baptist Joint Committee, to call a “meeting of Protestant, educational, and fraternal leaders.”  These individuals founded Protestants and Other Americans United for Separation of Church and State in 1948. Catholics could be excused for thinking that the organization was targeting them.

The logic of both the majority and dissenting opinions in Everson points toward the strict separation of church and state, a conclusion seemingly confirmed by the Court’s decision in McCollum v. Board of Education (1948). Here, by an 8 to 1 vote, the Court invalidated an Illinois plan that set aside part of a school day for voluntary religious instruction. A few years later, the justices seemed to take a step back in Zorach v. Clausen (1952) when they upheld a plan that permitted students to be released from school early to receive religious instruction.  

The Supreme Court refrained from deciding additional Religion Clause cases in the 1950s, but passionate debates about church-state relations continued. Green shows that the Catholic Church’s longtime stand against the evils of communism helped build trust with Protestants, as did popular authors and media personalities such as Thomas Merton and Bishop Fulton J. Sheen.  As might be expected, members of Protestants and Other Americans United vigorously opposed the nomination and election of John F. Kennedy as President, but Kennedy’s argument that “I do not speak for my church on public matters—and the church does not speak for me” did much to calm Protestant anxieties. Critically important as well, thanks in part to Father Murray, the Roman Catholic church embraced religious liberty during the Second Vatican Council (1962 to 1965).  

Just as Protestant-Catholic suspicions were abating, the Supreme Court issued a decision that appeared to many to be anti-religious. In Engel v. Vitali (1962), the Court ruled 6 to 1 that teacher-led prayer in public schools was unconstitutional. The decision was widely denounced by Protestant and Catholic groups alike. Not to be deterred, the following year they ruled 8 to 1 against Bible-reading and the recitation of the Lord’s Prayer in public schools. These decisions were opposed by 70 percent of the American public and 49 of the nation’s Governors. Members of Congress proposed 146 separate constitutional amendments to overturn them.  

Without doubt, some Americans have favored the separation of church and state as a matter of  principle. But it is evident that many Protestants supported separationism because they understood it to limit Catholic power; they never imagined that the doctrine would ban or restrict practices favored by them. When the Supreme Court started using the Establishment Clause to declare unconstitutional practices such as school prayer, they rejected separationism. In time, they would come to cooperate with Catholics to oppose what they perceived to be the forces of secularization.

An early manifestation of this cooperation may be seen in Protestant support, after years of opposing governmental aid to religious schools, of the Elementary and Secondary Education Act of 1965. That law provided federal tax dollars to religious institutions. When challenges to the provision of federal funds under the law reached the High Court, those favoring a wall of separation between church and state often won. Yet the Court moved away from the extreme separationist rhetoric of Everson in favor of balancing tests such as that articulated in Lemon v. Kurtzman (1971). On the surface, the period between 1971 and 1975 was “to be the high point of strict separationism on the Court.” And yet, as with “any long-standing edifice on an increasingly shaky foundation, the dismantling of the wall of separation was not immediately apparent, nor did it occur overnight.”  

By most accounts, Supreme Court justices did not abandon a commitment to the separation of church and state until the 1980s. A skeptical political scientist might attribute more weight to the election of Ronald Reagan and George H.W. Bush and their judicial appointments than Green does. But the dynamics Green describes, especially the perceived attack on religion per se, combined with the realization that Protestants and Catholics should be allies on these and other cultural issues, helped make the election of Reagan and Bush possible. Green’s conclusion that the decline of separationism began “in the mid-1960s, in response to ecumenicalism, social welfare legislation, and the rehabilitation of the Catholic Church,” is more than plausible.

There is much to be admired in The Third Disestablishment. Disagreeing with its author as I do about the proper relationship between church and state, I find little with which to disagree in this balanced and nuanced book. Anyone interested in the church-state relations in mid-20th century America should read it.