On August 12, 1937, President Franklin D. Roosevelt nominated for the Supreme Court Senator Hugo Black (D-Ala.) to succeed the retiring Willis Van Devanter, who had voted to strike down most New Deal laws. Black was a brain truster and an FDR loyalist, supporting him on his “court packing” plan and spearheading investigations into his political opponents. While Black’s confirmation ended the Supreme Court’s role as an antagonist to Roosevelt, it began the Supreme Court’s role as an antagonist to He had also been a member of the KKK in the 1920s and had successfully defended a man who had killed a Catholic priest for performing the wedding ceremony of his daughter and a Puerto Rican man (Goff, 16). Although Black would attribute his membership to wanting to join any group that would help get him ahead in Alabama at the time, he didn’t have nothing in common with them in their thought. Namely, Black shared with the second Klan its thinking on Catholicism. As Black’s son, Hugo Jr., wrote of him, “The Ku Klux Klan and daddy, so far as I could tell, only had one thing in common. He suspected the Catholic Church…He thought the popes and bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed; he felt they got most of their revenue from the poor and they did not return enough of it” (Goff, 22). He would be, along with fellow Roosevelt pick Wiley B. Rutledge, a leading figure in moving the Court towards ending prayer and Bible reading in school. The first case that began the signaling of the end for prayer was Everson v. Board of Education.
The Impact of Everson v. Board of Education
On February 10, 1947, the Supreme Court decided in favor of the Board of Education but in the process incorporated the Establishment Clause of the First Amendment as binding under the Due Process Clause of the 14th Amendment. Although Black and Rutledge were on opposite ends of the decision, Black’s majority opinion mattered as much as Rutledge’s dissent, as both would be used in future decisions. Although the decision itself came out favorably on the religion side, this critical precedent opened the door to future decisions. Additionally, Black cited, for only the second time in the history of the Supreme Court, an 1802 letter that President Thomas Jefferson wrote to the Danbury Baptist Association in which the famous “wall of separation between church and state” originated. He wrote in his decision that the First Amendment erected “a wall of separation between church and State’….That wall must be kept high and impregnable. We could not approve the slightest breach” (Dreisbach). It should be noted that although Jefferson was a Founding Father and had written the Declaration of Independence, his influence on the Constitution was minimal and he played no role in writing it. As he wrote, “I was in Europe when the Constitution was planned, and never saw it till after it was established” and in fact did support the use of federal funds to build churches and to fund Christian missionaries who were trying to convert Indians (Goff, 37). Interestingly, in the same year as Everson, the organization Americans United for Separation of Church and State was established. This was partly in reaction to this decision and was fearful that Catholicism presented a threat to democracy (den Dulk).
Separation of Church and State: That of Paul Blanshard?
Justice Black, according to his son, Hugo Jr., was suspicious of the Catholic Church and read the works of a certain former theologian, now an atheist, Paul Blanshard (Goff, 7). This is relevant as Blanshard wrote a number of books, most notably, American Freedom and Catholic Power (1949). In this book, he denounced the Catholic Church as an “undemocratic system of alien control” and claimed that there was a conspiracy in the Catholic Church to take over the United States, calling for opposing Catholic judges and that high-ranking Catholics in the United States should be required to register under the Foreign Agents Registration Law (Goff, 27). The agents they would be, of course, would be for the Pope. Blanshard also notably called for a Black had copies of four of Blanshard’s books, including the aforementioned book, Communism, Democracy, and Catholic Power (1951), My Catholic Critics (1952), and The Irish and Catholic Power (1953), and his works were widely regarded as a “liberal, genteel, educated anti-Catholicism” (Bertucio). American Freedom was a curious work as although it was an atheist who was writing it, he was taking an old Protestant view on the matter. Blanshard was additionally curious as a figure as he was an admirer and supporter of John F. Kennedy and Kennedy did consult him for advice. According to Hugo Jr., by the time his father was on the Court, “He wanted to believe but he just could not” (Goff, 31). Thus, you could say that Black was a reluctant atheist. It does seem clear given Jefferson’s non-strict view on “wall of separation” that the wall of separation that informs present-day discourse has more to do with Blanshard than Jefferson.
Strict “Wall of Separation” Begins
For this portion, while going over the Supreme Court decisions and legislative actions that followed, I will also include figures on the population estimates for its largest support groups, those being Protestants, Catholics, and Mormons. All population estimates are from Gallup, and the source will be in References.
In 1962, the Supreme Court begins the push towards strict secularization with the decision Engel v. Vitale, holding that a New York State law permitting non-denominational prayer at the beginning of the day in public schools is unconstitutional per the Establishment Clause of the First Amendment. This is followed up with Abington School District v. Schempp (1963), which found unconstitutional a Pennsylvania law requiring all students to read ten Bible verses and say the Lord’s Prayer at the beginning of the day. The law had an exemption permitted with a parent’s note, but this law was found to have an unconstitutional preference for Christianity. These rulings were yet more outrages from the Warren Court for conservatives. Former Presidents Hoover and Eisenhower condemned Engel, holding that this marked the end of the nation’s public school system (Laats). However, President Kennedy announced his support for Engel. Conservatives then pushed for a constitutional amendment to allow prayer before the term “Christian Nationalist” ever saw the light of our lexicon. At the time, 69% of the American population identified as Protestant and 24% identified as Catholic. The first school prayer amendment is introduced in response to Engel in 1962 by Senator Robert Byrd (D-W.V.), but it doesn’t receive a vote. He would as late as 2006 introduce school prayer amendments. In 1964, Rep. Frank J. Becker (R-N.Y.), who called the 1962 decision “the most tragic in the history of the United States”, pushes another such amendment for allowing “non-denominational prayer” in schools (Laats). However, this proposal doesn’t get a vote after hearings in which there is disagreement among religious leaders as to what would constitute “non-denominational prayer”. This is a dispute that would impact future considerations of the amendment.
Congressional conservatives were finally able to get a vote in 1966, when Minority Leader Everett Dirksen (R-Ill.) proposed an amendment permitting school-led voluntary non-denominational school prayer. He condemned religious organizations and leaders who opposed school prayer, calling for the wrath of God to fall upon them for opposing it and stated “I think of the children, the millions whose souls need the spiritual rehearsal of prayer. Imagine the Chicago Bears football team, made up of green, inexperienced, unpracticed and unrehearsed players, undertaking a game against the Cleveland Browns. It would be unthinkable because they have not been disciplined by practice…Mr. President, the soul needs practice, too. It needs rehearsal” (Kenworthy).The amendment, however, fell nine votes short of adoption on September 21st, with it being rejected 49-37 (D 22-34, R 27-3). A key dissenter, who helps bring other Democrats against the amendment, is Sam Ervin (D-N.C.), who had as a state legislator in North Carolina in the 1920s opposed legislation providing for the teaching of creationism. The American population was 67% Protestant and 25% Catholic at the time.
Conservatives Try Again with Wylie School Prayer Amendment
Conservatives made another push for the school prayer amendment in 1971 despite the opposition of Judiciary Committee Chairman Emanuel Celler (D-N.Y.) and counterpart William McCulloch (R-Ohio). Sponsored by Rep. Chalmers Wylie (R-Ohio), who was motivated by the Prayer Campaign Committee, this amendment stated, “Nothing contained in this Constitution shall abridge the right of persons lawfully assembled, in any public building which is supported in whole or in part through expenditure of public funds, to participate in nondenominational prayer” (Hunter). A debate that plagues this amendment as it did past versions of it regards what the nation’s religions would agree upon as a “nondenominational prayer”. Social conservatives attempt to pass the amendment in the House, but it once again falls short 240-163 (D 102-137, R 138-26) on November 8, 1971. There are also some converts against school prayer, such as Rep. John B. Anderson (R-Ill.), who had previously sponsored a proposed school prayer amendment and would in 1980 run for president as an Independent who would siphon votes from Jimmy Carter. Minority Leader and future President Gerald Ford (R-Mich.), however, votes for. The American population is 63% Protestant and 26% Catholic at this time.
That year, the Supreme Court issued another ruling in an effort to define what constituted a violation of the Establishment Clause in Lemon v. Kurtzman (1971). The Lemon decision struck down laws in Pennsylvania and Rhode Island allowing state aid to financially troubled church-affiliated schools. This decision also established what is known as the “Lemon Test”. This was a three-part test to determine violations of the Establishment Clause that used three prior Supreme Court decisions on the matter. These were,
“The secular purpose doctrine” – Does the law have a secular purpose?
“The principal or primary effects doctrine” – Does the law’s principal or primary effect serve to further religious practice?
“The excessive entanglement test” – Does the state get excessively entangled with religious institutions?
This test continues to exist although there has been questioning of it by some justices and proposals for alternative tests.
Conservatives Try Yet Again with Baker School Prayer Amendment, Gain Republican Foes
1984 seems like a good time for a school prayer amendment. After all, the Senate is Republican and the amendment has the support of President Reagan and polling at the time puts support for such a proposal at 80% (Tolchin). Although the amendment, sponsored by Majority Leader Howard Baker Jr. (R-Tenn.), has Democratic supporters primarily in the South, this is countered by increasing Republican opposition, and this time around they got a shocking foe in none other than Senator Barry Goldwater (R-Ariz.). His candidacy twenty years before had focused on issues both economic and social and part of this campaign was pushing back against the deemphasis on God. The amendment read, ”Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. Neither the United States nor any state shall compose the words of prayers to be said in the public schools” (Tolchin). This was defeated 56-44 on March 20th, and sixteen other Senate Republicans vote against, more than countering any gains in Democratic support. Future presidential candidate Bob Dole (R-Kan.) votes for this amendment. However, the Equal Acess Act was passed instead which protects religious student groups from unequal treatment in public schools and ironically has been used as a core protective law for LGBT student groups. The American population is 57% Protestant, 28% Catholic, and Mormons figure at 2% in 1984.
One More Time: The Istook School Prayer Amendment
As part of the Republican Congress under Speaker Newt Gingrich (R-Ga.), many conservative issues were pushed, and school prayer wasn’t forgotten. In 1998, Rep. Ernest J. Istook (R-Okla.) proposed another school prayer amendment. However, the Democratic Party is far more socially liberal in 1998 than it was in 1971 and 1984, and the amendment fails on June 4, 1998, 224-203 (R 197-28, D 27-174). Future presidential candidates Ron Paul (R-Texas) and Bernie Sanders (I-Vt.) vote against while future candidates John Kasich (R-Ohio) and Lindsey Graham (R-S.C.) vote for.The amendment was also a bit more expansive than previous ones as it would also acknowledge God in the Constitution and permit the government to fund religiously affiliated groups and programs (Eilperin). Although Istook tries again in 2001 and sponsors another such measure with Sanford Bishop (D-Ga.) in 2003, neither get a vote. In 1998, the American population was 58% Protestant, 27% Catholic, and 2% Mormon.
The school prayer amendment has not had a vote in Congress for 25 years, but perhaps if “Christian Nationalism” makes more moves than rhetoric nationally perhaps it will be back for a vote. After all, if liberals are trying to ratify the ERA from where it stood from its 1970s efforts instead of starting over with state ratifications, why shouldn’t the “Christian Nationalist” conservatives push a school prayer amendment? One issue is declining numbers of people of a Christian faith. In 2022, 34% of Americans identified as Protestant, 23% as Catholic, and 2% as Mormon. While this still is a majority of the nation as Christian, there seems to be a major crisis of faith among Protestants, as they are the group that is by far the most in decline. Although Engel has been upheld and reinforced numerous times, notably in Wallace v. Jaffree (1985), Lee v. Weisman (1992), and Santa Fe Independent School District v. Doe (2000) (Hudson). There has been some recent movement towards prayer in the 2022 Kennedy v. Bremerton decision, but if the school prayer amendment could not pass in a nation that was over 90% Christian, the odds, while not impossible, are downright daunting that it will be adopted in a more heterogenous society. Also, given that minority groups, be they racial, religious, or whatnot, are far more activist than they used to be, getting that through will be a headache but it may be one Christians find worthwhile.
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