Since the days of Earl Warren, the U.S. Supreme Court has engaged in a lot of freewheeling jurisprudence: the decision granting Washington the power to dictate when and how police may apprehend criminal suspects; the declaration that the racial integration of America’s public schools is a matter of federal, rather than state, law; the ukase that state legislatures can only be apportioned on the basis of population, even though the U.S. Constitution provides for one branch of the federal legislature to be constituted based on historical political subdivisions; the finding that, somewhere in “penumbras and emanations” of provisions of the First, Fourth, Fifth, and Ninth Amendments, there is a “right to privacy” that allows women to terminate their pregnancies at will. Still, for sheer audacity, it is difficult to top the Supreme Court’s decision in Everson v. Board of Education (1947), when the Court ruled, for the first time, that the First Amendment’s provision that “Congress shall make no law respecting an establishment of religion” prohibits state and local governments from allowing any breach of a purported “wall of separation” between Church and state. In Everson, and in subsequent cases, the Court has opined that this language meant not only that states are prohibited from favoring one religion over another (itself a departure from the original intent), but that they must refrain from favoring religion over irreligion, from promoting theism over atheism.
Perhaps the most remarkable thing about this ruling was the notion that the First Amendment—which we know today, as we knew 60 years ago, to be a provision designed to stop the newly created federal government from interfering with the established religions of Connecticut and Massachusetts—ought to be transformed into a club with which to beat back any state effort to promote a belief in God. At or near the time the First Amendment was written, at least 11 of the original 13 states required various professions of faith of those who would hold public office or exercise the franchise. The belief was common, as the Constitution of Pennsylvania put it in 1776, that, unless one holds that the Old and New Testaments are divinely inspired, and that there is a God Who rewards the good and punishes the wicked, one simply could not be trusted to govern properly. Sir William Blackstone, whose books were said to be surpassed in sales in America only by the Bible, had demonstrated that Christianity is an important part of English Common Law, and the same conclusion had been reached concerning American Common Law by such titans as Chancellor William Kent of New York and Associate Justice Joseph Story. Story wrote, in his 1833 Commentaries on the Constitution of the United States (one of the most authoritative near-contemporary treatises on that document), that it is the duty of government to support the Christian religion, and this remained the view of the U.S. Supreme Court at least through 1892, when Mr. Justice Brewer blithely noted that “this is a Christian Nation.”
It was the view of the Federalists, the alliance of advocates of the federal Constitution of 1789 who coalesced around Alexander Hamilton and George Washington, that religion is a fundamental foundation for the governance of the state (as Washington noted in his Farewell Address, which was drafted by Hamilton). This was perhaps put most succinctly by U.S. Supreme Court Justice Samuel Chase, who, when he was riding circuit in the early 19th century, made a point of including in his charges to grand juries the observation that “there can be no order without law, no law without morality, and no morality without religion.” For Mr. Justice Black in Everson, however, and for the Supreme Court majorities who followed, the thought of these Federalist Framers meant little. Black and his followers adopted only the views of Thomas Jefferson and James Madison, whose thoughts on religion were decidedly out of the mainstream of late-18th-century America. Jefferson did employ the phrase “wall of separation”—specifically, in an 1802 letter to a group of Baptists in Danbury, Connecticut—but he was referring to the federal government (as did the First Amendment) and not to the states. To be fair, James Madison and, to an extent, Jefferson were opposed to state-sponsored religion altogether, and they were instrumental in abolishing Virginia’s Anglican establishment.
In some quarters, there are still those who maintain that Everson and its offspring are illegitimate, and a close reading of recent Supreme Court cases suggests that even some of our current justices agree. Oddly enough, Everson did allow for some forms of public aid to be given to religious schools for bus transportation to and from school (mirroring provisions made for public schools). Subsequent decisions have continued to allow some state aid to sectarian schools, while rejecting other forms of government aid. It is difficult, if not impossible, to find a coherent doctrinal approach to these questions, just as it is difficult to understand why a 5-4 Supreme Court majority permits the Ten Commandments to remain on a 50-year old monolith outside the Texas State Capitol, while forbidding the Decalogue from being displayed inside a Kentucky courthouse. The Decalogue appears three times in representations gracing the walls of the U.S. Supreme Court itself, and no opinion from on high has ordered their removal; yet a granite display of the Ten Commandments in the rotunda of the Alabama Supreme Court was ordered removed by a federal court, and the chief justice of the Alabama Supreme Court was removed from office by his fellow justices and by the Alabama attorney general when he refused to obey the order.
Setting aside differences on the relationship between religion and law, those who believe in the rule of law, and in interpreting the Constitution according to its original understanding, ought to recognize that, in Everson, the Supreme Court took a wrong turn. Nor should they abide the dubious Incorporation Doctrine, which holds that, somehow, the 14th Amendment’s language forbidding any state from denying citizens “the equal protection of the law,” or “due process,” or “privileges and immunities” means that certain prohibitions of the Bill of Rights, which are clearly directed only at the U.S. Congress, apply to state and local governments as well. Admittedly, a handful of the first proponents of the 14th Amendment hinted that the measure was intended to protect the “fundamental” and “great” rights of the newly freed slaves, but no one has been able to demonstrate that it was their clear intention to apply the First Amendment’s restrictions to the states. Everson’s erection of the “wall of separation” ought to be viewed as a surprising judicial usurpation. That sudden act of usurpation still continues to bedevil state and local action and has recently been held to prohibit invocations by clergy at public-school graduations and even student-led prayer at high-school football games.
Few Supreme Court justices have been willing to admit that Everson grievously erred in its reading of history. Justice Antonin Scalia, the late Chief Justice William Rehnquist, and a few others have allowed that the graduation-convocation case got it wrong, given our long tradition of ceremonial public prayer. At least one justice, Clarence Thomas, has had the courage and the historical understanding to state that, in the First Amendment, the word Congress still means “Congress,” and that the Constitution leaves matters of religion to the states and local governments. He has it right; Mr. Justice Black got it wrong.