"Tear Down that Wall" [a National Catholic Register MUST READ]

Associate Supreme Court Justice Hugo Black
Inventor of the "Wall of Separation Between Church and State"
Gerald Russello writes in the June 10 issue of the National Catholic Register on "The 60th Birthday of The ‘Wall’ Separating Church and State":

This year marks the 60th anniversary of a decision that has thrown the law of religious liberty into disarray for the last six decades.

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.

There are two things to keep in mind about this opinion.

First is the character of Black.

While he is famous for his expansive view on the First Amendment and his defense of civil liberties, he 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. As it happens, Everson himself, the plaintiff in the case, was a member of the New Jersey chapter of the Junior Order of United American Mechanics, a nativist organization that had often allied itself with the Klan.

The anti-Catholicism expressed in the case did not end with Black. Justice Jackson who disagreed with Justice Black and would have ruled the New Jersey program unconstitutional, wrote a separate opinion in which he proclaimed that: “Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values.”

His description of the role schooling plays in the passing down of the faith makes Catholicism seem a little like a cult.

In addition to its infection of First Amendment jurisprudence with anti-Catholic bias, 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.

The First Amendment on its face does not apply to laws such as that passed by New Jersey: the language of the amendment states only that “Congress” shall make no law respecting the establishment of religion, or infringing upon the free exercise of one’s faith.

The Constitution says nothing about prohibiting the states from doing so.

Indeed, at the time of the enactment of the Constitution and for decades afterward, numerous states had established churches, and almost every state supported religion in some way. The Constitution was directed at national interference in religious belief, and did not prohibit states from taking action to favor or support religious belief.

Nevertheless, 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.

[More]

(emphasis added)

My Comments:
Prior to ascending to the halls of Congress and then onto the Supreme Court, Justice Black, as a lawyer in Alabama, defended and obtained an acquittal for a fellow Klansman who had murdered Fr. James Coyle.

There is much to tarnish the reputation of Hugo Black (including the Supreme Court opinion that is the subject of the above article), but the blatantly racist and anti-Catholic trial tactics Black utilized in obtaining the acquittal of the Catholic priest's murderer certainly must be considered one of the low points of Black's legacy.

Be sure to read the links below for more information on this topic.


Previous Pro Ecclesia posts on this subject:
"Anti-Catholic" Laws Hamper School Choice, Voucher Backers Say

A Tale of Two Alabamians: Justice Hugo Black and Judge William Pryor