by Alexander Wohl, author of Father, Son and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy (Univ. Press of Kansas, 2013). For more on the work, see Wohl’s ACS BookTalk entry.
Lost amidst the Supreme Court’s end of term fireworks affecting voting rights, affirmative action and marriage equality was the 50th anniversary of one of the Court’s most significant modern decisions reaffirming a different principle of individual liberty – government neutrality in matters of religion. This lack of fanfare is in part a testament to the enduring power of the ruling in Schempp v. Abington School District, which held unconstitutional a state law mandating that public school students begin each school day with a reading from the Bible and the Lord’s Prayer. Today’s subdued response contrasts sharply with the torrent of criticism following the original ruling in 1963, which included hate mail, protests, and legislative efforts to overturn the decision. But that quiet may be the calm before the storm, as the neutrality principle faces a new threat in the current Supreme Court, thanks to a case to be heard next term.
It may seem hard to imagine today, with our nation’s remarkable religious diversity and, for the most part, tolerance, that a Supreme Court decision upholding the principle that in matters of religion “the government is neutral, and, while protecting all, it prefers none, and it disparages none” could generate serious hostility. It is a particularly notable attribute when contrasted with the turmoil in Egypt and other Mideast nations involving the question of religious control of the government.
The reaction was in some ways an echo of the response to the decision the previous term in Engel v. Vitale, which held that an official state-sponsored school prayer was unconstitutional. But Schempp not only reaffirmed that holding, but enhanced the legal argument supporting it, with Justice Tom Clark’s opinion offering an expansive discussion of the history of religious liberty in the nation in support of the principle of separation of church and state. While acknowledging “that religion has been closely identified with our history and government,” Clark reiterated “the wholesome ‘neutrality’” expressed in prior cases which, he explained, “stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or … dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies.”
But Clark went further, countering the criticism that, if religious exercises are prohibited “a religion of secularism” would be established in the schools. He explained that while teaching “comparative religion or the history of religion” was an important part of education, teaching about religion in public schools, which should be encouraged, is very different than teaching religion, which must be prohibited. The “exalted” place of religion in our society, he explained, is achieved “through a long tradition of reliance on the home, the church and the inviolable citadel of the individual heart and mind” and “bitter experience” has made clear “that it is not within the power of government to invade that citadel.” (And of course, nothing in the decision prevents individual students from praying on their own at school.)
Clark’s opinion in Schempp also received important support in the form of several concurring opinions, the most significant of which was Justice William Brennan’s extraordinary 70-page testament of the history of school prayer, including virtually every religion-clause case in Supreme Court history. Brennan told his colleagues that he wanted to write separately to address the concerns of his own Catholic church. The other two concurrences were written by Justices Arthur Goldberg and William O. Douglas. The combined, if unintentional effect was that the four opinions in support of the holding were written by two Protestants (Presbyterians), a Catholic, and a Jew.
The decision in Schempp gained additional credibility and strength because of the ideological background of its primary author, who was generally seen as a moderate or even conservative member of the liberal Warren Court. This stood in contrast to the main opinion in Engel, whichhad been written by Justice Hugo Black, a leading liberal member of the Court. The impact similar to that resulting from Clark’s authorship of other important Warren Court decisions, including on race, such as Heart of Atlanta Motel v. United States, and criminal procedure, in Mapp v. Ohio.
In fact, throughout his long career in public service, Tom Clark had demonstrated a fundamental belief in the connection between religion and American democracy. As Harry Truman’s attorney general, Clark exhibited a mix of Cold War dogma and patriotism blended with a dollop of religion. As one scholar noted, while the term “godless communists” did not arise with Clark, it no doubt resonated favorably with him. Speaking in 1947, Attorney General Clark told the International Sunday School Convention, “Today we are in a great critical period of human history,” and the world needs to “rest on the solid foundation of religion.” He urged the audience to “gird our heritage with all of our spiritual strength. . . . Christianity and our democracy are synonymous. . . . Our enemy, whether inside or outside our frontiers, is the enemy of democracy. And the enemy of democracy is the avowed enemy of Christianity,” he said, clarifying, “By Christianity I mean no one particular creed. I mean all creeds.”
Once he joined the Court, Clark rarely included this kind of public proselytizing in his Supreme Court opinions involving religion, preferring a middle ground. In Engel he joined themajority (only Justice Potter Stewart dissented), but did not express strong views during deliberation. With Schempp, Clark had come full circle, evolving from the view that church and state should be intimately linked, to an understanding that tolerance and neutrality are critical rights when government and religion overlap. Clark’s conversion to outspoken defender of government neutrality in matters of religion was driven in part by public reaction to the decision, which included the introduction of more than a hundred bills in Congress calling for a constitutional amendment to reverse the holding (“They put the Negroes in the schools, and now they’ve driven God out,” one typical congressional comment stated).
Even after the Court issued its decision Clark continued to discuss the case with an almost missionary zeal, taking the nearly unprecedented step of explaining to the public what it did and did not mean. In an essay entitled “A Supreme Court Justice Speaks of God,” published in the National Sunday Magazine, and in a number of speeches, including at the Commonwealth Club in San Francisco, Clark suggested the public misunderstood the Court’s position, believing wrongly that it had “outlawed religious observance in public schools,” when all it did was hold unconstitutional “a state written prayer circulated to state employed teachers with instructions to have their pupils recite it in unison at the beginning of each school day.”
While the lack of attention to Schempp on its quinquagenary celebration this year indicates how much in this area of the law has since been accepted as gospel, at least as it relates to school children and the danger of “coercion” they might experience from state endorsement of religion or one religion over another, the underlying legal principle is not without its challengers.
Indeed, efforts to enact constitutional amendments or pass state laws allowing prayers in public schools are on the rise, primarily in southern states that also accounted for most of the initial resistance to the Schempp and Engel. In Mississippi this year, for instance, the governor signed legislation requiring public schools to develop policies that will allow students to pray over school intercoms, at assemblies, and at sporting events. As the governor reportedly stated, “You might put on the program that this is not a state-sanctioned prayer if a prayer does break out at a football game or graduation.”
With these kinds of challenges growing, the inevitable question is how will the principle of government neutrality play on today’s far more conservative Supreme Court. Over the last three decades the Court has lowered the wall of separation, and offered the possibility that at least some members want to go further. We’ll get another look next term at just how murky this area of the law is and whether the Court is inclined to further whittle away at that wall when the Court takes up a case concerning not school prayer but whether a local government can start its daily proceeding with a prayer of invocation. Though it seems unlikely that the conservatives on the Court will completely abandon the current standard of review, they might be wise to recall the approach of one of their former brethren who understand that to be a true conservative in matters of religion meant that when “The Constitution says that the government shall take no part in the establishment of religion … No means no.”