Church, State, and the Crisis in American Secularism

1 What We Say: The Supreme Court’s Promise of Government Neutrality toward Religion

3 The crisis in interpreting the Establishment Clause lies in the gap between what the United States Supreme Court has written that the Constitution demands—what we say—and what American society actually does. The Court has promised government neutrality toward religion; but our practices suggest something quite different. Neutrality has a variety of meanings, as we shall see, but all of its meanings require that the government not endorse religion as a preferred status for the citizenry . The endorsement of religion, however, is precisely what government does today in many ways. Indeed the majority of Americans may believethatgovernmentoughttoendorsereligion.Thereinliesthecrisis. In this chapter, I will set forth in broad outline the Court’s promise of government neutrality. In the next chapter, I will discuss some of our non-neutral government practices. In 1947, in Everson v. Board of Education,1 the United States Supreme Court upheld, 5–4, the public reimbursement of parents for the cost of transporting children to any primary or secondary school, including private, religious schools. It was a subsidy meant to keep children from dangerous pedestrian routes. Justice Hugo Black wrote the majority opinion upholding the subsidy. Justice Wiley Rutledge wrote the principal dissent. The Everson majorityopinionisentitledtomoreweightinthemovement toward establishing government neutrality toward religion than a close, 5–4 decision would normally be accorded. Despite upholding the o n e What We Say: The Supreme Court’s Promise of Government Neutrality toward Religion 4 The Establishment Clause Crisis bus subsidy that was at issue in the case, Justice Black’s majority opinion basically agreed with the dissenters about the constitutional values controlling the relationship between church and state. Insofar as the majorityopinionlimitedtheroleofreligionin publiclife,itspokeforthe dissenters too, who wanted to go even further in separating church and state. Thus Everson represented, in effect, a manifesto by a unanimous Supreme Court on behalf of a neutral government that could not aid religion. Justice Black’s language of separation between government and religion was uncompromising. The people of the new American nation, he wrote, concluded that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions.2 JusticeBlackstronglyidentifiedThomasJefferson’sandJamesMadison ’soppositiontoaproposedVirginiataxinsupport “oftheestablished church”—actually the proposal would have supported any Christian denomination—as the beginning of the anti-establishment tradition that culminated in the two religion clauses in the First Amendment: the prohibition against any law respecting an establishment of religion and the protection of the free exercise of religion. Although the Court had previously referred to the well-known letter by Jefferson to the Dan­ bury Baptist Association,3 it was in Everson that Jefferson became a pivotal figure in interpreting the Establishment Clause and in which his famous image of the “wall of separation” between church and state came to dominate all of the justices’ views of the proper place of religion in American public life. Justice Black’s opinion included a well-known description of the reach of the Establishment Clause. This description probably represented the view of the entire Court: 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 in any amount, large What We Say 5 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. The State was to be “neutral in its relations with groups of religious believers and non-believers. . . .”4 The disagreement between the majority and the dissenters in Eversonwasnotaboutwhethertherewasawallofseparationbetweenchurch and state—Justice Black agreed with the dissenters that the “wall must be kept high and impregnable” and that there must not be “the slightest breach.”Thedisagreementwasonlyoverwhethera“generalprogram”of transportation that did not exclude religious schools was constitutional. Five justices thought the program was constitutional; four thought not. Thebasic,legallybindingelementsofgovernmentneutralitytoward religion emerged full blown in the Everson opinion...