 |
| Justice Tom Clark (left) wrote the Court's opinion in the Schempp case. Justice William Brennan, Jr. published a concurring opinion. (Photograph by Lebanon Zahle, from the Collection of the Supreme Court of the United States.) |
|
Did Liberal, Activist Justices Kick God Out of the Public Schools?
That's what the religious Right and many conservative politicians have been saying for decades. But is it true? In fact, the historical record does not support this charge. The American people themselves removed most religion from the public schools in order to avoid sectarian conflict in a nation that grew ever more religiously diverse. And three out of the four conservative justices on the Court in 1963 agreed that organized prayer and Bible reading violated the First Amendment.
Read this excerpt from Ellery's Protest to find out more. The book provides an extensive discussion.
From Chapter 1
Copyright 2007 by Stephen D. Solomon. No use of this material is permitted without prior consent of the author.
Schempp
has become one of the decisions most often cited by political
conservatives and the religious Right as an example of the activist
legacy of the Warren Court and as a decision that warrants reversal
either by the Court itself or by constitutional amendment. It has
remained a target of Christian conservatives and many politicians who
have argued that America’s public schools have become havens of
secularism.
History, though, does not support the constant
rhetoric that the Supreme Court tossed God out of the public schools.
In fact, as the story told in this book makes clear, the American
people themselves accomplished most of that through voluntary agreement
among themselves. Schools in the American colonies began as private
institutions whose mission was to teach children to read so that they
could study Scripture. That mission worked well enough in colonies that
boasted mostly homogenous populations of Anglicans and
Congregationalists. Children spent most of their day in essentially
religious learning, as teachers drilled them in prayer and in the
catechism, the Bible, and the Ten Commandments. They used readers and
textbooks dominated by religious references, and often their teachers
were ministers.
The nation’s growing religious diversity changed
all of that in a gradual process that stretched over several centuries.
A religious curriculum could not last for long under the stress of an
increasingly pluralistic nation and the conversion of the schools into
public institutions. The Anglican and Congregationalist monopolies
melted away into an increasingly diverse society. Scores of new
Protestant denominations flourished in the United States—Baptists and
Methodists and Presbyterians and others—the result both of immigration
and the spontaneous splintering of existing churches into wholly new
ones. Unable anymore to teach the dogma of any one denomination,
Protestants settled among themselves on a common public school that
taught a common Protestantism, centered on Bible reading and recitation
of the Lord’s Prayer.
Even that compromise was doomed to
collapse as the ships docking on American shores brought Roman
Catholics, Jews and eventually millions more people of non-Christian
persuasions. Riots in Philadelphia heralded religious strife in many
large cities as Catholics rebelled against the exposure of their
children to the Protestant King James Bible. Many school systems
dropped their Protestantism so that people of diverse backgrounds could
live together without conflict, and others compromised by allowing
religious minorities to excuse their children from participation.
Americans themselves negotiated an end of most religion in the public
schools because they wanted to do so. They judged that living peaceably
with their neighbors was important and that what religion they removed
from the schools could be taught at home and in houses of worship. By
the early 1960s, what religious practices in the schools were left for
the Supreme Court to consider? Many schools still held holiday
celebrations. But the most significant remnant of the past, by then
practiced in less than half the public schools in the country, was a
five-minute devotional exercise at the beginning of the school
day—readings from the Protestant King James Bible and recitation of the
Lord’s Prayer.
The choice of which Bible and which prayers to
use in the public schools involved government in the kind of sectarian
conflict that the Framers of the First Amendment wished to avoid.
Although it was a distant cousin to the sectarian bloodletting in
Europe over more than a millennium, Americans suffered more than a
century of riots, prejudice, and persecution relating to the choice of
religious material in the public schools. Whose version of the Bible
should be read? Whose prayers should be recited? If it was school
boards and principals making the choice for public school pupils, then
the government was in fact endorsing one tradition over another and
forcing children of minority religions to either join in the majority’s
devotionals or to find the strength—unusual in a schoolchild—to resist
the gravitational force of peer pressure. The conservative Justice
Felix Frankfurter, concurring in McCollum v. Board of Education, wrote
that any devotional activity that “sharpens the consciousness of
religious differences” among children in the public schools causes
“precisely the consequences against which the Constitution was directed
when it prohibited the government common to all from becoming
embroiled, however innocently, in the destructive religious conflicts
of which the history of even this country records some dark pages.”
An
important fact seems lost in the history of the last half-century.
Schempp was not a difficult decision—at least not among the eight
justices who voted to ban Bible reading and prayer as a violation of
the First Amendment. Among them were three of the four conservative
justices then sitting on the Court—John Harlan, Tom Clark, and Byron
White. Clark himself, a Democrat from Texas who served as U.S. Attorney
General under President Truman, was the author of the Court’s opinion.
Justice Harlan, a conservative intellectual leader on the Court for
many years, voted to take prayer and Bible reading out of the schools.
His personal notes, on file at the Library of Congress, indicate his
strong personal support of the decision. Harlan even joined a
concurrence by Arthur Goldberg, a liberal, in which the two of them
said that the government had involved itself in divisive sectarian
practices. In that judgment Harlan was following the precedent of
leading conservatives before him, such as Felix Frankfurter and Robert
Jackson, both of whom strongly endorsed church-state separation in
earlier cases.
All of these justices, in the decades leading up
to and including Schempp, recognized the dangers of excessive religious
zeal in the most religiously diverse nation on Earth, one that had
dedicated itself to respecting each individual’s freedom of conscience.
As a matter of law, however, none of the justices could act until
plaintiffs brought cases before them, braving anger and retaliations
within their own community. Ellery Frank Schempp, sixteen years old,
was one of those plaintiffs.
|
|
|