On June 24, 1992 the Supreme Court handed down Lee v. Weisman, a decision that declares officially sponsored prayer at the graduation exercises of government schools to be unconstitutional. The following article is the previously unpublished text of an address given by Father John Courtney Murray (1904–1967) on May 3, 1948, to an audience of Catholics and non-Catholics in Wilmington, Delaware. On page 32 is a public statement issued shortly thereafter (June 17) by some of the most influential Protestant leaders in America. The latter statement emerged from a meeting in New York City that was addressed by both Murray and Reinhold Niebuhr (1892–1971) of Union Theological Seminary.
Both statements could not be more pressingly pertinent to church-state disputes today. Although made in response to Court rulings of the late 1940s (Everson v. Board of Education [1947] and McCollum v. Board of Education [1948]), they directly join the arguments of the current Weisman decision. The Court has been going over and over the same territory for forty-five years. In Weisman a narrow five-to-four majority (Blackmun, Kennedy, O’Connor, Souter, and Stevens) prolonged the conventional wisdom of the Everson decision. As the vigorous dissent by Rehnquist, Scalia, Thomas, and White makes clear, however, the conventional wisdom of “strict separationism” is under heavy attack. A change of only one vote would retire the weary argument that the separation of church and state means the separation of religion from public life. That one vote may soon be available. Blackmun and Stevens are considered the most likely members of the Court to be replaced in the near future, and O’Connor, while joining in the Weisman majority, has indicated her dissatisfaction with existing church-state doctrine. (Souter, in a long and somewhat confusing concurring opinion in Weisman, presents himself as the strictest of separationists on the Court.)
In the 1948 Wilmington address, John Courtney Murray, who was the chief architect of the Second Vatican Council’s “Declaration on Religious Freedom,” is stunningly prescient on a number of scores, not least in his recognition of the inherent difficulties in accommodating religion within a unitary public school system. His concluding challenge in that connection is today answered by the growing movement toward “school choice” that would empower parents to decide the values by which their children should be educated (see John Coons, “School Choice as Simple Justice,” FT, April). It might also be noted that the statement by Protestant leaders reflects the role of “mainline” Protestantism at that time. Both they and Father Murray assumed that they had a singular responsibility for the religio-cultural well-being of the society. Almost half-a-century later, mainline/oldline Protestantism appears to be more given to applauding the secularization that the Niebuhrs et al. protested in 1948. Views analogous to those of the liberal Protestants of that day are today advanced almost exclusively by those who are called evangelicals or fundamentalists. This change is of much more than merely historical interest.
We had thought to publish a thorough editorial critique of the Weisman decision. But these two statements say it better than we could. We are grateful to Father Joseph Komonchak of Catholic University who discovered them in the archives of the university and brought them to our attention.
—The Editors
I
In order to understand the issues raised by the [McCollum] decision, we must have in mind at least an outline of the facts of the case.
First, the Champaign, Illinois [religious education] plan [that gave rise to the case] had its origin in a social problem—an alarming rise in juvenile delinquency within the communities of the county, about the year 1940. This situation was of concern both to the State and to the churches within the region. This fact first suggested the idea that some cooperation between church and state would be desirable in the interests of a solution of the problem. It was thought that a program of religious education, in which the local schools and the local churches would cooperate, would be a helpful instrument in meeting the social situation.
Secondly, the Champaign plan was an instance of wholly voluntary cooperation, from beginning to end. There was voluntary cooperation among the religious bodies in forming the Champaign Council on Religious Education, a board composed of representatives of all the local churches who wished representation; none were excluded. This board selected the religion teachers and paid them, and exercised some supervision over the teaching materials to insure that they would not arouse religious controversy of an undesirable kind. Again, the school board, when approached by the Council, gave its voluntary cooperation. This chiefly consisted in permission to use the school buildings for the religion classes. The reasons for the permission were the convenience and safety of the children, lest they be obliged to go off to their several churches, with consequent loss of time and some danger. For the rest, the school personnel cooperated by issuing and collecting “Parents’ Request Cards.” On these cards the parents requested the school to permit their child to attend the particular religion class of the parents’ choice. Note, in this respect, how the school considered itself, as it should, simply the agent of the parents’ wishes. Note, too, that the school’s cooperation was given in the interests of the community.
Thirdly, the whole plan was carried on under full respect for the rights of conscience, and for the equality of all religious faiths before the law of the State. This point was fully explored in the Supreme Court of Illinois, and no fault was found, or could be found, with the plan in this respect.
Fourthly, the operation of the plan approved itself to the conscience of the community during all the time of its operation. Everybody was satisfied with it. Everybody, that is, except a certain Mrs. Vashti McCollum, an avowed atheist, daughter of a prominent and very articulate, if not always respectfully articulate, freethinker. (Recently, at an interview in New York, she maintained that she was not an atheist, but a “humanist”; her earlier protestations of her atheism had won for her considerable unfavorable publicity.) She objected to the embarrassment to which her son, James Terry, … was subjected because he happened to be the only child in his class who took no religious instruction. She maintained, in sum, that the Champaign plan was a violation of religious freedom, as guaranteed by the State and Federal Constitution. And she wanted it stopped. In effect, she wanted not only to end the released-time religious instruction, but also to
ban every form of teaching which suggests or recognizes that there is a God. She would ban all teaching of the Scriptures. She especially mentioned as an example of invasion of her rights “having pupils learn and recite such statements as, ‘The Lord is my shepherd, I shall not want.’ ” And she objects to teaching that the King James version of the Bible is the “Christian’s guide book, the Holy Writ, and Word of God,” and many other similar matters (quoted from [Mr. Justice] Jackson’s decision).
In a word, she made perhaps the strongest and most sweeping plea ever made in American history for the banishing of all religion from the public school.
It is not definitely known how far Mrs. McCollum was the instrument of antireligious forces. At all events, she appears as something of a symbol. And the thing she symbolizes is not pleasant to contemplate—a growing body of American citizenry that is actively opposed to traditional religion, and anxious to translate its opposition into law.
The whole case would probably have died after the Illinois Supreme Court decided that the Champaign plan was entirely constitutional had not the U.S. Supreme Court in the meantime handed down its decision in the Everson case, based on the new principle that “aid to religion” was a violation of the “establishment of religion” clause of the First Amendment. (The question of “establishment of religion” had not been raised in the lower courts.) In the light of this new development, the McCollum case was appealed to the U.S. Supreme Court, and was decided by it on March 8.
(I leave to the lawyers the nice question of whether the U.S. Supreme Court really had jurisdiction in the case, since—as Mr. Justice Jackson pointed out—it involved no violation of a personal liberty or a property right.)
The Champaign plan was struck down as unconstitutional—contrary to the “establishment” clause of the First Amendment—on two grounds. First, [because] it involved “use of tax supported property for religious instruction”; and secondly, because it involved “close cooperation between school authorities and the religious council in promoting religious education.” To these two specific reasons Mr. Justice Black added, at the end of his opinion, a more generalized and very ominous reason, when he stated that it is unconstitutional to make “use of the State’s compulsory education machinery to provide pupils for religious classes.”
Mr. Black’s opinion has astonished lawyers by its brevity; there is no appeal to legal argument or to history. The lengthy historical and legal argument advanced by the counsel for the Champaign County school board is curtly dismissed. Mr. Black simply says that the Court made a rule of constitutional law in the Everson case and we appeal to it now in striking down the Champaign plan. The interesting thing is that when the rule of law was made in the Everson case, no argument was advanced to support it. And it was a new rule of law. It gave a developed meaning to the First Amendment that the First Amendment never before was thought to bear within it.
Historically, the First Amendment forbade a national establishment of religion, a State Church in the accepted meaning of the term, as one sees it today in Norway and Sweden (where the Lutheran Church is established by law), or in Spain (where the Catholic Church is established). Essentially, the First Amendment forbade our national government to prefer one religion above another, or make observance or support of it obligatory by law. Our new constitutional law, as laid down in the Everson case and reaffirmed in the McCollum case, forbids much more than this. It states that “Neither (State or Federal government) can pass laws which aid one religion, aid all religions, or prefer one religion over another.” In other words, to the notion of “no establishment of religion” has been added the notion of “no aid to religion.” Our original constitutional doctrine simply affirmed the equality of all religious faiths before the law of the land; our new constitutional doctrine affirms something much more radical and sweeping—it affirms the so-called principle of the “absolute separation of church and state.” And on grounds of this principle it forbids “cooperation between school authorities and a religious council in promoting religious education,” as this cooperation appears in the Champaign plan.
There is our constitutional situation, as of the moment. There we are. The interesting thing is that everybody is asking: “Where are we?” The exact meaning and full implications of the McCollum decision, and of the rule of constitutional [law] on which it is based, are by no means clear. The “principle of separation of church and state,” says Mr. Frankfurter, is a “spacious conception,” whose meaning “is unfolded as appeal is made to the principle from case to case.” It is not a “full-blown principle, nor one having the definiteness of a surveyor’s metes and bounds.” Indeed not. It is quite obvious to the citizen that the Supreme Court has given to the principle of separation of church and state a “spaciousness” it never had before; and we have no way of knowing whether the principle is going in the future to be made to cover more ground than it did in the McCollum decision. The Supreme Court has blown up the principle to an already rather terrifying size. And no one knows how much more blowing they are prepared to do, in order to bring the principle to full-blown size.
As a matter of fact, many citizens are asking themselves: Has the conception of separation of church and state been already made too spacious? Has it been blown too big? Or—to change the metaphor—is Jefferson’s famous “wall of separation between church and state” on the way to becoming an impenetrable barrier to cooperation between these two forces in society upon which the good of society depends?
Jefferson said: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof.’ ” All of us in turn contemplate with equally sovereign reverence that same act of the whole American people—our First Amendment. We reverence it because it was prompted by sound ethical and political principles—chiefly the principle, as Jefferson put it, that “the legislative powers of government reach actions only, not opinions.”
The difficulty is that the rule of constitutional law laid down in the McCollum decision is not the “act of the whole American people.” There is, in fact, a large body of American citizens who view it with alarm; reactions in the press of the country have been widely unfavorable to it. Among those who do not recognize it as their act are a host of thoughtful Protestants and Jews as well as Catholics; with them, too, are men of no religious affiliation, but of some religious and civic feeling. Among all these men are lawyers, educators, men and women interested in public affairs and civic problems, fathers and mothers of American children. They do not feel that the Supreme Court is acting in their name. Nor do they consider that the new doctrine of absolute separation of church and state rests on the same simple ethical and political principles that underlay the First Amendment in its historic meaning. The premises of the new doctrine seem to them dubious, and the doctrine itself troubles them; they are worried about its validity, and concerned about its possible implications in many directions.
I am not therefore speaking simply for myself—nor only for my fellow Catholics—when I lay down this proposition with regard to the McCollum decision: that it cannot be approved first by the civic conscience, and secondly, by the religious conscience. It cannot be approved by the civic conscience because it is a radical departure from our Federal constitutional tradition. And it cannot be approved by the religious conscience because it is, in effect, a legal victory for secularism. These are the two topics on which I want to offer you an argument.
II
In proving my first point I shall make use of the argumentation very clearly and soberly presented by Mr. Justice Reed, the lone dissenter in the case, whose opinion, I hope, may one day be looked back on as one of the great dissents of our times. He says: “I am convinced that [the] interpretation of the First Amendment [given by the majority] is erroneous.” With this I agree and many others agree.
I should accept, with Mr. Reed, the fact that there is an original meaning of the First Amendment and a developed meaning. In its original meaning, the First Amendment forbade simply a State Church; it protected the citizens of the U.S. from the imposition on them by law of a national faith and mode of worship. “Passing years, however,” says Mr. Reed, “have brought about acceptance of a broader meaning.” In this meaning, he says, the First Amendment forbids government, State or Federal, not merely to prefer one religion over another, but also “to aid any or all religions.”
However, he goes on, this broader meaning (“no aid to religion”) cannot immediately be made into a rule of law that will cover all cases. [Here,] two very necessary distinctions must first be made. They must be made because Thomas Jefferson himself made them, and because they have become “so much a part of our tradition and culture that they are accepted without more ado.”
There is, first, the distinction between the relations of government to religion, to the church as such—its faith, its worship, its strictly ecclesiastical functions—and the relations of government to religious education. The distinction clearly appears in the conduct of Jefferson as Rector of the University of Virginia. Jefferson did want a wall of separation between government and the church as such; but he did not think it necessary—in fact, he thought it very undesirable—that there should be a wall of separation between government and religious education. And he freely lent the cooperation of the University he founded to “instruction in religious opinion and duties” by the various sects of his State. Neither he nor James Madison considered that this was any violation of U.S. constitutional requirements. As Reed puts it: “The difference between the generality of his statements on separation of church and state and the specificity of his conclusions on education are considerable. A rule of law should not be drawn from a figure of speech.”
Here precisely is the first place in which the majority opinion shows up as unhistorical, arbitrary, far too cut-and-thrust: it takes Jefferson’s metaphor, “wall of separation,” and applies it slam-bang to an education situation, failing to consider, as Jefferson considered, that the field of education is a special field, in which church and state meet on common ground, [where] rules of law cannot be drawn from figures of speech, but [must] be carefully formulated, in a reasonable, realistic way, under due regard for the facts and the special requirements of an educational situation. In a word, Mr. Reed suggests, governmental cooperation with programs of religious instruction, carried on with due regard for religious freedom, is not immediately outlawed by the metaphor, “wall of separation.”
The Court’s failure to make this first distinction leads it to overlook a second vital distinction—a distinction in the concept, “aid to religion.” What the developed meaning of the First Amendment forbids, Mr. Reed well says, is “purposeful assistance directly to the church itself or to some religious group or organization doing religious work of such a character that it may fairly be said to be performing ecclesiastical functions.” So, for instance, government could not appropriate money to build churches, pay ministers to serve them, furnish transportation to parishioners, print Missals or hymn books or propaganda literature, etc. However, the “aid to religion” forbidden by the Constitution does not forbid, Reed goes on, “those incidental advantages that religious bodies, with other groups similarly situated, obtain as a by-product of organized society.”
Mr. Reed finds this distinction embedded in the “well-recognized and long-established practice” of our legislatures. On grounds of it, he explains the unchallenged constitutionality of tax exemption for church property, bus transportation for church-school pupils and free nonreligious textbooks and lunches for them, aid to hospitals under religious auspices, chaplains in legislatures and the armed forces, the G.I. Bill of Rights, religious activities at West Point and Annapolis, and the cooperation of public school authorities in various forms of released-time religious instruction.
All of these governmental practices involve some manner of “aid to religion,” but in the form of incidental advantage that the churches derive as a by-product of the government’s organizing activity. Mr. Reed seems to suggest that the basic reason why long-standing practices of government have freely granted these incidental advantages is this: that “recognition of the interest of our nation in religion,” as an important element in organized American society, has traditionally been considered as binding on government.
For instance, when government organizes an army, it recognizes that the men it organizes into an army are religious men; their religion is as vital to them as their citizenship, and more so. Consequently, as part of its organization of an army, it organizes a chaplains’ corps, thus recognizing the fact that its soldiers are not only citizens but religious men, whose religion must be effectively recognized by government as a social fact and need quite as imperative, surely, as the soldier’s need for services to his health. From the process the churches do indeed derive aid, but not the kind of aid that falls under constitutional ban.
Apply this traditional conception to the field of education. Government now organizes a school system; the children whom it compels to attend these schools are children of religious parents. Is government to be forbidden to recognize this fact …? Or the further fact that parents may wish the school somehow to cooperate with them and with their church in the religious education of their children? Is all such cooperation to be banned forthwith, as contrary to a doctrinaire conception of separation of church and state, as somehow implying a constitutionally forbidden “aid to religion”? This is not, I think, a reasonable, nor an historical, nor even a socially desirable construction of the First Amendment. There are indeed constitutional limitations on such cooperation; but Mr. Justice Jackson indicated them adequately when he said that “a Federal Court may interfere with local school authorities only when they invade either a personal liberty or a property right protected by the Federal Constitution.” It is the high function of the Court to defend the American order of rights and liberties, as these have been traditionally conceived, and as they must be given clearer formulation in the light of changing conditions. But the Court debases its own high function in American society when it acts counter to a central tradition in American society—the tradition of voluntary and reasonable cooperation, under respect for religious and civic rights, between government and religious forces in education. If this cooperation results in “incidental advantages” to religion, it is not the kind of “aid to religion” that was outlawed by “that act of the whole American people,” which all of us “contemplate with sovereign reverence” as the First Amendment to the Constitution.
A vital distinction has been here overlooked. And the result has been an erroneous interpretation of the First Amendment—a “rigid interpretation,” as Mr. Reed well says, “that conflicts with accepted habits of our people.” That is why the interpretation is erroneous—because it is rigid, ruthless, sweeping. It insists, in Mr. Justice Frankfurter’s words, that separation of church and state in the U.S. is “absolute.” The history of our country proves that this is not so. And the people of our country as a whole do not want it so. They will, I think, agree with Mr. Reed that our constitutional separation of church and state “is not an absolute prohibition against every conceivable situation in which the two may work together, any more than the other provisions of the First Amendment—free speech, free press—are absolutes.”
The word “absolute” in the opinion of the Court is the word that does the damage. It brings the new constitutional doctrine that does the damage. It brings the new constitutional doctrine squarely into conflict, as Mr. Reed suggests, with “practices embedded in our society by many years of experience.” These practices illustrate a central American tradition of cooperation of church and state. The new constitutional doctrine, in pushing separation of church and state to unhistorical extremes, not warranted by the Constitution itself, strikes at this tradition of cooperation.
And this, in brief, is why I say, simply as a citizen, that the McCollum decision, and the rigid, sweeping doctrine of separation of church and state on which it is based, cannot be approved by the civic conscience.
III
My second point is that the McCollum decision cannot be approved by the religious conscience, because it is a legal victory for secularism, especially in our public school system. It is, in effect, an act hostile to the interests of religion in American society.
Understand me exactly. I am by no means imputing to the Supreme Court bench the intention of acting in the interests of secularism. Mr. Justice Black was at pains to say in his opinion that the decision does not “manifest a governmental hostility to religion or religious teachings.” I accept this disclaimer as quite sincerely made. Nevertheless, I maintain my proposition; for I am looking to the effect of his decision, to its tendency, to the use that will be made of it. In the light of these things our newly rigid law of separation of church and state must be judged by the religious conscience (not in the light of the intentions of the judges who made the law). A law is a form of social pressure; it bears on the shape and spirit of social institutions, and it moves society in one direction or another. As a citizen and a religious man, one may therefore ask: In what direction will this decision press and push and move American society, especially the institution of the school? And I answer: In the direction of secularism.
Let me pause here a moment to clear up a fundamental confusion that has crept into the opinions of both Mr. Black and Mr. Frankfurter, as an echo of Mr. Rutledge’s dissent in the Everson case. Mr. Frankfurter quotes Mr. Rutledge: “We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion.” This is a piece of bad history, muddy political theory, and bad judicial thinking. First, we have not staked the existence of our country, as a political democracy, on any “faith,” but simply on a set of rational political principles, rather pragmatic in character; one of them is embedded in the First Amendment—the equality of all religions before the law, and the immunity of the religious conscience from governmental coercion. In the minds of the Founding Fathers, the First Amendment embodied no “faith,” but a hard-headed piece of ethical common sense combined [with] a prudent and practical theory of government, as concerned only with the secular aspects of man’s life, not with his religious opinions. Let us resist any attempt to turn the First Amendment into a bit of religious mysticism.
The bad judicial thinking comes in when the Supreme Court presumes to decide “what is best for religion.” I know Mr. Rutledge was implicitly citing James Madison, in one of Madison’s lapses. As a statesman, Madison’s function was to decide what is best for the state, and only that. What was best for religion was quite flatly none of Mr. Madison’s business; and it is none of Mr. Rutledge’s, or Mr. Frankfurter’s, or Mr. Black’s. What is best for religion is a matter for judgment on the part of those who have the care of religion, not of officials of government—especially a government which is “separate” from religion. I, for one, do not like to see written into a Supreme Court opinion the dictum that separation of church and state is best for religion; it may be or it may not be, but judgment on the question is not within the province of the Supreme Court. When they begin judging what is best for religion, they are themselves violating the principle of separation of church and state!
Let me now return to my argument; the McCollum decision is, in effect (though not in the intention of the Court), a legal victory for secularism.
The first indication that this is so will come to light if I ask this question: Who are the men who claim this decision as a victory for themselves? Certainly not the thoughtful, religious men—Catholic and Protestant and Jewish. Their sober judgment looks upon the decision as a defeat. And they are clearly disturbed by it, and by its possible implications. Those who claim it as a victory are the secularists—those who in greater or lesser degree share the views of Mrs. McCollum—whether they call themselves atheists, agnostics, humanists, or what you will. Press reports already indicate that efforts to call into question other forms of released-time religious instruction will be made by such groups as the Freethinkers of America. These are the men who are rejoicing over the decision. Making common cause with them are a few, a very few, radical Protestants, who have given their names to that curious organization known as Protestants and Other Americans United for Separation of Church and State. To the distress of their more temperate fellow Protestants, they have seen fit to join a dubiously holy alliance with a strange assortment of Masons and secularist educators in order to launch a campaign of political action, along religious lines, against the Catholic Church. All men are their friends who consider the Catholic Church as “the enemy.” But they themselves are the friends neither of religion nor of democracy.
Turn, now, from the secularist forces that have acclaimed this decision to the secularizing effects inherent in the decision itself.
I think it may be fairly said that one important effect of this decision is to alter the spirit of the First Amendment. In its original conception, the spirit of the First Amendment was the spirit of a friendly separation between church and state. It was a friendly separation because it allowed latitude for cooperation between church and state in many matters, and notably in the field of education.… Cooperation in matters of common concern is the fruit of friendship. But the interpretation of the First Amendment that we now have makes separation of church and state less friendly than it was before; for it diminishes the possibility of cooperation between these two agencies that, each in its own way, serve the public welfare. Church and state now stand farther apart than ever in American history—at a time when the crisis of our times demands that, especially in what concerns the religious upbringing of our youth, they should stand closer together, not indeed confusing their different functions, but cooperating with one another in a common cause, in full loyalty to the First Amendment, but to the First Amendment as interpreted (as Mr. Reed says) in the light of the “precedents, customs, and practices” of the American people, and not in the light of doctrinaire assumptions.
Another effect of the decision is this: in consequence of our newly rigid separation of church and state, religion is less free in America today than it was yesterday. On the face of it, the Champaign Council on Religious Education is no longer free to cooperate with the public school system in carrying out the wishes of parents with regard to the religious instruction of their children. I could reconcile myself to this loss of freedom on the part of religious forces if I could persuade myself that it is a constitutional necessity. But in the light of Mr. Reed’s argument and of other considerations I cannot so persuade myself.… What religion has lost in freedom, secularism has gained.
And at this point, I want to consider an argument advanced by Mr. Justice Frankfurter. He says: “Religious education so conducted on school time and property is patently woven into the working scheme of the school. The Champaign arrangement thus presents powerful elements of inherent pressure by the school system in the interest of religious sects.” The school, he adds, somehow puts “constraint,” “obvious pressure upon the children to attend” religious instruction. “The momentum of the whole school atmosphere and school planning is presumably put behind religious instruction.” And this is an “intrusion of religious instruction into the public school system.” This is bad, says Mr. Frankfurter—this “pressure” on the child to be religious. This, in fact, seems to be his main reason for [arguing] the unconstitutionality of this particular form of released-time instruction.
I admit that there is a difficult problem here. It is the whole problem of the public school. By its historical evolution the public school has got itself involved in a contradiction. It exists, supposedly, in order to promote democracy. Yet it is constitutionally forbidden to promote those religious beliefs which are the foundation of democracy. I do not know what the solution of this problem is; a host of serious men are perplexed by it. But I do know this: that Mr. Frankfurter has hopelessly simplified the problem. He wants to relieve the public school child of all “pressure” in the direction of religious belief, to “eliminate the operation of influence by the school in matters sacred to conscience and outside the school’s domain.” I do not, of course, concede that his argument is founded in fact. The keynote of the Champaign plan was its wholly voluntary character; to say that the school exerted pressure on the child is to misconceive the situation. Whatever pressures there were on the child came from the parents—and this manner of pressure has not yet, I hope, become unconstitutional. But take his argument—it illustrates a common fallacy today. Does he suppose that in removing from the child pressure toward religion, he has removed all pressure from the child? Has he created a vacuum? And rendered the child immune from antireligious pressures? He does not want the “momentum of the whole school atmosphere” put behind religious instruction; has he thereby deprived the school atmosphere of all momentum—brought it, as it were, to a standstill, so that it no longer “moves” the child in any direction?
This is unrealistic. Thousands of religious men and educators have been crying out for a long time that the momentum of the whole public school atmosphere is now being put behind secularism; that the sheer omission of religion from public schools creates a pressure on the child against religion, and puts a constraint on him to believe that what is not important enough to be taught in school is not important at all. If there is to be talk of pressures and constraints, let this pressure and this constraint be considered; otherwise the problem is not honestly considered. It does not do to say that pressure in favor of religion is unconstitutional, but pressure against religion is constitutional. It does not do to forbid positive religious instruction in public schools, on grounds that it implies the “operation of influence by the school in matters sacred to conscience,” and then light-heartedly allow the school to use its enormous influence to favor what has been rightly called a “negative religious dogmatism,” as if somehow this influence, now being terrifically exerted by the public school system, did not itself impose a crushing weight on the delicate religious conscience of the child.
Again I say, I do not know the answer to the problem of religion in the public school. But I can make bold to say that the Supreme Court does not know it either. Hence I could perhaps, as a citizen, address to them this respectful request: that at least they should not render impossible a solution to this problem by laying down a rigid and sweeping constitutional doctrine of separation of church and state that unreasonably, and in a manner contrary to American precedent, limits legislative freedom, which is freedom of the people, to cope with this problem. The Court stands indeed as the last and most welcome and cherished defender of our American order of personal liberties and property rights. But perhaps it would not be disrespectful of a citizen to ask that it should heed the hinted admonition of one of its own members, Mr. Justice Jackson, who suggested that the Court should not “allow zeal for [its] own ideas of what is good in public instruction to induce [it] to accept the role of a super board of education for every school district in the nation.”
I think I have another request to make of it. In his opinion, in order to justify the Court’s application to public education of its rigid doctrine of separation of church and state, Mr. Frankfurter felt it necessary to suggest something of a philosophy of public education. What I understand of this philosophy I do not like. It seems to make public education too much, too exclusively a creature of government, and an instrument of government. To this extent, it seems to make the child too much a creature of government, too exclusively subject to governmental judgment on what is good for him in education. I find little room in this philosophy of public education for the rights of the parent over the child and his education; and little room for the subjection of government itself to the wishes of the parent. I suggest that a philosophy of education is dangerous that does not allow full room in it for the parent; it lacks the necessary balance wheel, the truly democratic element. And I should view with intense alarm the development of a philosophy of public education in which the principle of separation of church and state would somehow entail, as a consequence, the separation of the parent from the child. I suggest, therefore, that it is not within the province of the Supreme Court, by any of its dicta, to further the development of such a philosophy of public education.
There is another development which it is beyond the province of the Supreme Court to assist. I mean the development of the “religion of democracy” as the national religion of the U.S., by law established. This “religion of democracy” is our great contemporary myth. It is a secularist system of values, constructed without reference to God or to any human destiny beyond this world, that presents itself as a higher, more unifying religion than all “sectarianism.” It looks down with contempt upon the rivalries of sects, as somehow un-American. It wants all sectarian religion kept out of the public school, as divisive of the mystical unity of the American people, at the same time that it asserts itself to be the proper object of government support and promotion. Someone has called this “religion of democracy” the “public school sect.” It is truly a sectarian religion, with an orthodoxy and a vocabulary all its own. It is our contemporary nationalist myth, and it is a dangerous myth. Fundamentally, it is as dangerous as the myth of race against which we fought a war, or the myth of class with which we are now engaged in struggle that, please God, may find some other issue than war.… It matters not whether the idol one worships is compounded of blood and soil, or made of seeming gold; it is none the less an idol. And the worship of idols is sacrilegious, and leads to enslavement. I am concerned about the rising religion of democracy, whose church would be the public school. The Supreme Court exists in order to protect the U.S. citizen from any establishment of religion in our democracy; it would be a curious irony if it somehow assisted the establishment of the religion of democracy.
That is why I am concerned when I see occurring in a Supreme Court opinion echoes of the vocabulary of this new religious myth. It is said, for instance, by Mr. Frankfurter, that the public school is “the symbol of our democracy.” It isn’t, except to devotees of the religion of democracy, who, in their most orthodox moments, profess their faith in the public school as the “only American school,” and who would wish to see the disappearance of all private schools, especially church-related schools, as somehow “divisive of our national unity.” Actually, the symbol of our democracy in the field of education is our dual system of schools—public and private, nonsectarian and religious. This is the true symbol of educational democracy, because it proclaims that [it is not] the American government [that] is … the educator of the American child, but the American parent. Any attack on this dual system of schools, any movement for a single-school system, can only proceed from an ideology that is incompatible with democracy. Against such an attack (which is now going on) we expect the Supreme Court to be our strong defender. I hope, then, that in the future it will keep its symbols straight.
IV
Let me conclude, first, with a word to those of you who are Catholics, and then with a word to those who are not, but who sense with us the gravity of the present situation.
One form of released-time religious instruction has been struck down; its distinctive feature was that the instruction was given on school premises. Attempts will be made to have other forms of released-time likewise struck down. Now, released-time religious instruction was not a Catholic inspiration; nevertheless, Catholics have cooperated in such programs in the 2,000 American towns where they are conducted. And among the 2,000,000 children who benefit by them are many Catholic children. We Catholics, therefore, stand ready to defend these programs when and where they are attacked. We stand together with our Protestant and Jewish fellow citizens in this coming legal battle. We have our special interest—the education of our own children in the faith of the Catholic Church. But we have, too, a wider interest—the defense of an American freedom traditional in our society. I mean the freedom of the local community to manage its educational affairs, within reasonable constitutional limits. We want what Mr. Jackson called “some flexibility to meet local conditions, some chance to progress by trial and error,” towards the solution of a major social and religious problem—the problem of religion in American education.
We are, as Catholics, committed in all sincerity to the constitutional principle of separation of church and state; Archbishop McNicholas, in the name of the American hierarchy, has recently stated our common loyalty to this wise and just provision. However, we believe, with Mr. Reed, that “devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with established habits of our people.” This is solid ground on which to stand; and it is common ground on which Protestant, Catholic, and Jew, and every man of good will can stand, to make common cause against a common enemy—secularism, which strikes not only at our respective religions, but at our common American freedom.
We, then, as Catholics are prepared to give our cooperation in this common cause—the defense of the “established habits” of our people, which are religious habits, and soundly democratic social habits, and habits of cooperation between church and state within the wise constitutional guarantees of personal liberties.… And it would be a great gain if every American Catholic were aware of this, our Catholic position, and prepared to notify his neighbor of his own good will in this matter.
To our non-Catholic friends, I shall say only this: You have a battle on your hands. And you have an obligation of leadership in this battle. In the defense of released-time against further attacks, you have a primary interest; our task can only be to cooperate in support of you. Moreover, in the general attack coming from many quarters against the genuine American concept of freedom of religion, which aims to substitute the destructive concept of freedom from religion, you again have a primary interest; for you are—here I mean Protestants—the largest religious force and the most powerful in this country. You boast of your primary contribution to the formation of American culture as a religious culture; then you cannot shrink from primary responsibility for the defense of this heritage. If the myth of democracy as a religion is triumphant, and achieves its “establishment” as our national religion, the triumph will be over you. Your God will have been supplanted by an idol. It is, then, for you to locate your enemy and measure his power. You will find that he is our enemy, too. And that discovery will be important for all of us.
John Courtney Murray, S.J., was the leading American Catholic expert on church-state relations in the postwar era. His arguments in support of religious freedom, at first highly controversial in Church circles, were fully endorsed in Vatican II’s statement on the subject, Dignitatis Humanae (1965). Murray’s fullest statement of the compatibility between the American proposition and Roman Catholic teaching is in We Hold These Truths (1960).
