Tuesday, June 05, 2007

Separation of Church and State: The KKK's Child

HT: ProEcclesia

An analysis of the Everson decision with relevant facts sprinkled therein.

In 1947, the Supreme Court decided Everson v. Board of Education, which concerned a New Jersey state law that provided reimbursements to parents for their children’s use of public buses to travel to and from Catholic schools.The court decided, in a majority opinion by Justice Hugo Black, the local boards of education could reimburse parents for using public transportation for Catholic schools. But what seemed at first like a victory for religious liberty, especially for Catholics, quickly turned sour; Justice Black himself called it only a Pyrrhic victory.

...[Black] is equally well known for being a former senior member of the Ku Klux Klan. While he seems to have thrown off his racial views after coming to the court, his equally virulent anti-Catholicism never seems to have left him.

...the second thing to recall is that Everson totally rewrote the relationship between religion and society.

Prior to Everson, most religious liberty controversies remained at the state level, because the Constitution did not explicitly govern this issue. What has made the opinion’s legacy so damaging is Black’s application of the First Amendment to this state-level issue, and his importation of the metaphor of a “wall” between church and state.

...Black — without explanation or analysis — merely applied the language of the amendment to the actions of the New Jersey state government. This opinion, therefore — like the abortion decision Roe v. Wade — removed the possibility of state level compromises about issues central to politics, here the place of religion in public life. Instead, the decision placed the federal courts as final arbiters.

The establishment of what the critic Russell Kirk called the “archonocracy” (rule by judges) continues to plague American jurisprudence across a number of areas. Following Everson, decisions through the early 1980s caused Black’s admonition to be fulfilled: Contrary to the wishes of the electorate, and with increasing absurdity, the Supreme Court maintained a high wall between church and state where one was never meant to be.

Black ends his opinion with the peroration that the “First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”

It is the first significant use of that metaphor in a judicial opinion but contrary to Black, the First Amendment does not establish any “wall” between church and state, despite what generations of judges have held and law students been taught.

One might quibble that the 'archonocracy' was set in motion by John Marshall, the primal super-ego SC justice. But no one can argue that Black's decision was solidly grounded, nor beneficial for the country.


James Pawlak said...

For some reason (I think I know it) such "legal scholars never seem to get to the "free exercise of religion" part of the Bill of Rights OR the history of what (Established) Church meant to the writers of the Constitution.

Anonymous said...

"... nor prohibiting the FREE exercise thereof." [Emphasis added]

In other words, *Congress* cannot pass any law forcing a Christian church to charge money for admission to its worship services That's the only protection explicitly afforded by the Establishment Clause, which, by the way, places no constraints whatsoever on executive or judicial ability to suppress Christianity.

Okay, this is a deliberately pathological reading of the Establishment Clause, but is it really all that far from the way secular government interprets it?

I'm coming to suspect that we should be much more cautious about assuming we're protected by the Constitution--a document whose framers were, and whose interpreters are, for the most part, avowed enemies of the Faith.

--cacofonix (in an even blacker mood than usual)