The Wall of Separation: The Constitutional Politics of Church and State

by Frank Joseph Sorauf

Overview

This is the story of some of the most anguished constitutional controversies of our time, those involving the issue of separation of church and state. Few questions stimulated debate as intense as that over prayer in public schools and public aid to parochial schools. In contrast to previous studies, which have focused on the substance of the issues, Frank J. Sorauf's book concentrates on the judicial process in its social and political context.

The author discusses all sixty-seven cases in this area of litigation decided by high American appellate courts from 1951 to 1971. He has interviewed the plaintiffs, attorneys, and members of the groups bringing suit, and describes their strategies and goals, their successes and failures. The community context in which the cases developed, as well as the judges and the courts deciding them, is described and analyzed.

Originally published in 1976.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691644448
Publisher:	Princeton University Press
Publication date:	04/19/2016
Series:	Princeton Legacy Library , #1594
Pages:	410
Product dimensions:	7.10(w) x 10.10(h) x 1.10(d)

Read an Excerpt

The Wall of Separation

The Constitutional Politics of Church and State

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By Frank J. Sorauf

PRINCETON UNIVERSITY PRESS

Copyright © 1976 Princeton University Press
All rights reserved.
ISBN: 978-0-691-07574-7

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CHAPTER 1

THE CONSTITUTION AND THE SEPARATION

Aphorisms about the growth and exposition of the American Constitution center largely on the judges. In the famous words of Charles Evans Hughes, "We are under a Constitution, but the Constitution is what the judges say it is." The Supreme Court itself is, depending on the commentator, "the living voice of the Constitution" or "almost ... a continuous constitutional convention." It is as if we reveal all of constitutional politics when we part the veils that surround the judges and their judgments.

Yet if the Constitution is what the judges say it is, it is also true that the range of the judges' options is sharply limited. They are not roving Robin Hoods in search of injustice, nor are they constitutional draftsmen in pursuit of constitutional ambiguity or anomaly. They are, above all, prisoners of the cases brought to them, trapped in the facts and the arguments of the litigants who bring the cases. It advances the cause of realism in American constitutional law to say that the Constitution is what the judges say it is. But it also advances that cause to recognize that the Constitution is both what others permit the judges to say it is, and what they recognize the judges to have said it was.

In no way does it denigrate the appellate courts to explicate the roles of other actors in the judicial process. It is a commonplace that the appellate courts are passive instruments, that they are largely limited to deciding the issues others bring to them. If it is important to understand the passive actors, it is also useful to study the active initiators. Groups and individuals decide — sometimes purposefully, sometimes willy-nilly — which issues will appear on the judicial dockets and which ones will not. They and their attorneys decide in what form questions will come to the courts, in what facts and argument they will be encased. Others in this subtle interplay will assess the judicial decision, gauge its impact, even assure its enforcement and, perhaps, also take the next step in the process by posing a new constitutional question.

In looking at the colloquy between constitutional litigators and the courts, one can imagine it as an episodic, almost random dialogue. A much-vexed taxpayer or a heavily pressured school board, for example, reacts to purely local conditions and precipitates action that raises constitutional issues. The courts eventually decide, and that body of constitutional law then awaits the more or less random occurrence of another controversy — related perhaps only distantly to the previous one — to come to it or to the high court of another jurisdiction. In some areas of American constitutional law, however, the process is considerably less haphazard. Large national groups have organized and structured the litigation of constitutional questions with a considerable degree of proficiency. In these instances the initiating groups have raised the quality of their interchange with the courts to something approaching a Socratic dialogue on some clause of the constitution. Probing question preceeds precise — perhaps even cagey — answer, which in turn suggests — even invites — the next artful query. And in the dialogue, even when it is far more fragmented and discontinuous, one must understand the questions and the questioners if one is to understand the answers.

Even a full accounting of the actors and the actions within the judicial process, however, does not wholly depict the politics of constitutional growth and interpretation. Constitutional issues and actors wander freely across the unmarked borders between the judicial process and political processes in the other branches of government. Litigants often, indeed, try to convert losses or inattention in those other processes into victory in the courts. Decisions in the courts, moreover, have impacts and consequences far beyond the judiciary. Constitutional decisions, especially, have a forceful impact on the subsequent making of public policy; they may also spur constitutional amendments and battles over compliance and enforcement. So although it is true that the authoritative constitutional interpretations are the work of the courts, the broader politics of constitutional development can touch virtually any point or institution in the entire political process.

This is the point of view from which this study departs. In more specific terms, it is the story of litigating one area of constitutional law — that on the separation of church and state — in American appellate courts from 1951 to 1971. It portrays the plaintiffs, attorneys, and the groups bringing the litigation, their strategies and goals, their successes and failures. It suggests, as well, something of the community context and group conflict in which the litigation develops, and of the broader policy problems and social attitudes behind it. It is an attempt to chronicle the entire process and politics of litigating one area of American constitutional law, and in so doing, to say something more generally about the politics of constitutional growth.

At the same time, it is the story of some of the most anguished constitutional controversies of the time. Only the furor over desegregation and the rights of racial minorities rivaled the intensity of feeling on prayer in the public schools, or public aid to private religious schools. These were not only constitutional questions of baffling complexity and closely matched equities. They were also issues of public policy to excite the most fervent beliefs and to test the resilience of American religious heterodoxy. It is, too, a story whose plot is matched by its dramatis personae. Madalyn Murray O'Hair's assaults, first against prayer in the city schools of Baltimore and then against virtually all public religious influences in American society, made her perhaps the best known of all constitutional plaintiffs. But she was not alone. There were at all points dozens of other committed individuals, and an impressive array of local and national litigating groups.

THE CONSTITUTIONAL CASES

From 1951 through June of 1971, high American appellate courts decided a total of sixty-seven cases primarily concerned with constitutional issues of church-state separation. They are the subject of this book, for it is their origin, their issues, their sponsorship, their decision, and their aftermath that form the recent development of this one area of American constitutional law. The great majority of these cases, fifty-nine in all, originated in state courts. All of them reached the highest state appellate courts, and six of them were ultimately decided by the United States Supreme Court. The remaining eight originated in the federal courts; four progressed only as far as a court of appeals, and four went to the Supreme Court for substantive decision. All of these cases, in other words, have reached either a high state appellate court or a federal appellate court. Furthermore, they are the only cases between 1951 and 1971 to have raised substantial constitutional questions of church-state separation in those courts. They are the universe of constitutional cases in that period, and taken together they are the constitutional precedents — the known, reported, and final decisions — available to judges and legal scholars.

While the sixty-seven cases all raise questions of church-state relationships, some raise them under state constitutions, some under the U.S. Constitution, and many under both. In general those questions can be embraced by the enduring metaphor of the wall of separation between church and state; under the U.S. Constitution they are the cases argued under the "no establishment" clause of the First Amendment. As a matter of logic rather than constitutional law, these separation cases fall easily into two subcategories. There are those that involve public aid or support to some religious practice or institution: aid to religious schools or hospitals, for example. And there are issues of religious influence in public life — questions, for instance, of prayer or Bible-reading in public schools or crosses in public parks.

Even within one carefully defined area of American constitutional law there is, however, a rich diversity of conflict that the two subcategories do not begin to disclose. The largest single number of the cases (12) touched on questions of transporting pupils in religious schools at public expense. (In the 1950s, one must remember, "busing" was an issue of separation of church and state!) Another 10 cases involved prayer or Bible-reading in the public schools. Indeed, the overwhelming majority of the cases (43 of the 67) in some way or another involved the elementary and secondary schools, either public or private religious schools. The nonschool cases included those questioning tax exemptions for religious buildings, aid for buildings at religious colleges and universities, a cross on public property, and the reference to the Deity in the pledge to the flag.

The settings of the sixty-seven cases are equally diverse. They came from every part of the country: from Maine to Florida, and from Washington to Arizona and California. Two originated in Alaska, and one in Hawaii. They came from New York City and other metropolitan centers, but they also came from small towns in isolated Appalachian valleys. They came from the areas of heaviest Roman Catholic strength — the states of Connecticut and Rhode Island — and from areas of Southern Protestant fundamentalism. There are cases from areas of greatest Jewish population, as well as from the special religious strength of Buddhists and Shintoists in Hawaii and Mormons in Utah.

The diversity of the sixty-seven cases extends, furthermore, to differences in their importance in the fabric of American constitutional law. Among them are the "great" cases, those that produced a vast and public impact, and dot the casebooks and the commentaries. Among them would certainly be the prayer and Bible-reading decisions of 1963 and 1964 (Engel v. Vitale, Schempp v. School District, and Murray v. Curlett) and the clutch of decisions in 1971 ruling on direct state aid to religious schools (especially Lemon v. Kurtzman and DiCenso v. Robinson). But also included are cases of little or no note. There is one man's quixotic attack on the national motto "In God We Trust," a case decided with the briefest possible per curiam paragraph (Aronow v. U.S.). There is also a case (Miller v. Cooper) charging religious influences in the public schools of Lindrith, an unincorporated and virtually uninhabited town in the northwest section of New Mexico. Obviously, no criterion of intrinsic "importance" has governed the selection of the cases. All cases decided in the time period and in the specified appellate courts, and that raised substantial issues of church-state relations, are here.

THE INTERESTS AND THE PARTIES

It is in the nature of the adversary conflict in these cases that the plaintiffs generally acted on behalf of a "separationist" interest. They were objecting to some government program of aid to religion, some entanglement of government with religion, or some religious influence in public life. The public policy against which they acted seemed not to keep church and state sufficiently apart. Occasionally the plaintiffs were "accommodationists" — that is, they sought closer cooperation (or a less distant relationship) between church and state. Plaintiffs in West Virginia argued, for example, that private school pupils were discriminated against by a school board decision to bus only children going to the public schools (State ex rel. Hughes v. Board of Education). But there were only ten accommodationist suits out of the sixty-seven.

Also as a matter of the logic of these adversary cases, the accommodationist defendants were usually a governmental body. They were, in other words, the governmental authorities that had in some way brought (or permitted the bringing of) church and state together. Not surprisingly, the most common defendant was a local school board or district; these appeared as the defendant (or one of the defendants) in thirty of the cases. In many of these cases, of course, the defendant may have acted only as a proxy in wedding church to the state. Consider the case of school boards that appeared as defendants in cases challenging the transportation of children to private religious schools. In the majority of those cases the school boards were merely providing bus service at the insistence of a mandatory state law. In some instances, indeed, the members of the boards may have been personally and collectively opposed to the law, either because of convictions about church-state separation, or because they preferred to spend school funds for other programs. Thus "interests" in these cases were not as clearly defined as one might suspect. The nature of the case or controversy in the American court system casts the action in adversary terms, and often "creates" a sharper or different confrontation of interests than exists in reality.

We thus have two broad categories of interest in church-state relationships: the "separationists" and the "accommodationists." Each, however, contains a wide range of positions on church-state relationships. The lines dividing the two camps shift from case to case. A little-known case from Seattle (Calvary Bible Presbyterian Church v. Regents of University of Washington) illustrates the problem. Ministers of the Bible Presbyterian Church charged that a course on the Bible as literature taught at the University of Washington reflected only one or some theologies of the Bible, and by reason of that selectivity amounted to an establishment of religion. The state affiliate of the American Civil Liberties Union, whose views are usually strongly separationist, supported the university and its interpretation of academic freedom. Nominally, at least, the ACLU unexpectedly found itself in an accommodationist camp.

Part of the problem, of course, is in the easy use of the "separationist" and "accommodationist" labels. Both cover and embrace a considerable range of views. The "separationist" tag, at least, has some philosophical or constitutional point of reference in the Supreme Court's explications of the "no establishment" clause. But the "accommodationists" have little more in common than their collective role as defendants in most of this litigation. It would certainly be unfair and inaccurate to imply that their position is 180 degrees opposite that of the separationists. In many instances, indeed, they are only some small distance away from the separationists; but even small ideological distances can foster substantial constitutional conflict. Writers and scholars in the field of churchstate law have been notably uncertain what to call these interests and groups on "the other side." On behalf of the term "accommodationist" — awkward though it surely is — one can at least say that it is more defensible than "antiseparationist," and that it is winning the slow battle of general usage.

THE SETTING

On one day in late June, 1971, the Supreme Court, in a veritable frenzy of judgment, disposed in one way or another of eight church-state cases. Most prominent among them were the challenges to direct aid to religious schools in Pennsylvania and Rhode Island, and to Congress's construction grants for religious colleges and universities. As a terminal date for the cases of this study, that day marks, if not the end, at least a point of culmination in several decades of increasingly feverish litigation on the constitutional separation of church and state.

And feverish it was by any standards. The pace of the litigation accelerated steadily from 1951 to 1971; over half of the cases — thirty-four of the sixty-seven — were decided in the last third of the period, the years between 1965 and 1971. And it overshadowed any earlier period of church-state litigation. The eight cases decided in the United States Supreme Court in the period were, for example, more than the Court had decided in its entire prior history. Church and state came very late to the U.S. Supreme Court. The entire body of major precedents in the area contains only two decided before 1951, and both of them were decided in the 1940s: the New Jersey bus case (Everson v. Board of Education), and the released-time case from Champaign, Illinois (McCollum v. Board of Education).

Behind such swiftly moving constitutional litigation were the events of a very turbulent period in American religious history. The period from 1951 to 1971 includes, quite incredibly, both a period of religious revival and a time of religious decline. Paradoxes and ironies abound. For Roman Catholics they were decades that saw Bishop Fulton Sheen become a television celebrity, and John F. Kennedy become president of the United States; and yet the period culminated in the decline of a parochial school system that had been the envy of Catholics in the rest of the world. For Protestants the years were rife with reform and change; it was a time of ecumenical movements and church mergers, of theological and doctrinal change, of radical social ethics and involvement. But for all of that, at least by the 1970s, it was, ironically, the conservative and fundamentalist Protestants, the groups least touched by the currents of the period, that seemed to flourish most.

(Continues...)

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Excerpted from The Wall of Separation by Frank J. Sorauf. Copyright © 1976 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• Frontmatter, pg. i
• Preface, pg. vii
• CONTENTS, pg. ix
• LIST OF TABLES, pg. xi
• I. The Constitution and the Separation, pg. 1
• II. The Legal and Religious Context, pg. 11
• III. The Separationist Groups, pg. 30
• IV. The Separationists in Litigation, pg. 59
• V. Goals and Strategies of the Separationist Groups, pg. 91
• VI. The Plaintiffs, pg. 130
• VII. The Separationist Attorneys, pg. 158
• VIII. The Accommodationist Defendants, pg. 178
• IX. The Judges, pg. 205
• X. The Adversary Cases: Incidence and Outcome, pg. 231
• XI. The Friendly Cases, pg. 258
• XII. The Immediate Impacts, pg. 277
• XIII. The Impact on Policy, pg. 307
• XIV. The Changing Shape of Constitutional Litigation, pg. 338
• XV. Epilogue: 1971 to 1974, pg. 360
• Appendix I. The Universe of Cases, pg. 371
• Appendix II. Sources, pg. 381
• Appendix III. Definitions and Criteria, pg. 383
• Index, pg. 387