Unreasonable Observers

The Supreme Court and Religion in American Life
by James Hitchcock
Princeton University Press
Vol. I: The Odyssey of the Religion Clauses.
232 pp. $29.95.
Vol. II: From “Higher Law” to “Sectarian Scruples.”
272 pp. $35.

In the sport of religion jurisprudence, the cats sometimes catch the mice. In October 1997, for example, federal district judge Ira DeMent issued an injunction forbidding religious activities in and around public schools in Alabama. Forbidden activities included “Bible and religious devotional or scriptural readings; distribution of religious materials, texts, or announcements; and discussions of a devotional or inspirational nature, regardless of whether the activity is initiated, led by, or engaged in by students.” The injunction set up a system of monitors to enter classrooms, visit athletic events, and observe activities”in order to collect complaints and verify compliance. Public schools were commanded to conduct mandatory “in-service training” sessions, designed to educate school officials in “the general contours of Establishment Clause and Free Exercise principles as the court has explained them.”

For the next four years, the injunction would occupy the attention of the Eleventh Circuit Court of Appeals, which eventually weakened it considerably. Even the federal bench could eventually see that there are more mice than cats and that the mice have clever lawyers.

The DeMent injunction is a token of the sometimes comical plight of the federal judiciary on religious matters. How did the august judicial branch of the American government find itself goaded by teenagers with religious tracts, swamped in litigation that would boggle even the sharpest exegetes, and forced into applying “tests” that seem implausible, contradictory, and, what is worse, contemptible for their weakness? How did it happen that members of the Supreme Court could routinely refer to one another’s opinions as “totally incorrect,” “unsound,” “courting anarchy,” “laying waste venerable customs,” “inherently ethnocentric,” “outright perverse,” “ridiculous,” “pure fantasy,” “pernicious,” “absurd and offensive,” bordering “on paranoia,” and an “Orwellian rewriting of history”?

James Hitchcock’s new study, The Supreme Court and Religion in American Life , provides for the general reader a useful road map through the history and case law. The first of the two volumes tells the history rather comprehensively, with a minimum of interpretive overlay. The second tries to understand the story.

Hitchcock’s work is especially valuable for his extensive coverage of the Court’s religion jurisprudence before the deluge”that is, before the 1940s, when the Court deliberately made itself a tribunal of the nation’s religious disputes. For the first century and a half of the nation’s history, the Court diligently avoided expanding the scope of the religion clauses of the Constitution. Although from time to time the executive and legislative branches (as well as some states) experimented with “separation ism””attempting even to constitutionalize the doctrine”the Court kept its hands clean. It decided cases, but it was not a purveyor of “doctrine.”

One reason is that religious disputes rarely reached the Court under the rubric of the religion clauses of the First Amendment. As Hitchcock shows, the earliest and most persistent religious issues involved property: land grants, inheritance, trusts and bequests, division of property in parishes and national denominations, legal enforcement of contracts and religious vows to surrender personal property to a religious group, and the rights of foreign missionaries to acquire land.

In one of the earliest cases, Dartmouth College v. New Hampshire (1819), a state governor and legislature tried to dismiss a private college’s trustees in order to make the college a state school and emancipate it from its allegedly “medieval” religious mission. Justice Marshall ruled that the royal charter”which created the school to advance the spread of Christianity and piety”was binding and the state’s attempt to alter the institution was a breach of contract.

Although it usually protected the integrity of church polity, the Court typically did so by applying the ordinary law of contracts, trusts, and corporations. So strong was its reluctance to engage in speculative doctrine in cases touching upon religion that, when necessary, the Court consulted the positive law of foreign jurisdictions. It had to do so in the case of royal grants contested after the colonies became states. But it also did so in two of the era’s more complicated and fascinating pieces of litigation.

One case came out of Louisiana, where it was contended that one of the claimants to a will was illegitimate because his parents contracted a marriage by mere consent when the area was still under Spanish jurisdiction. Although Catholic canon law did not countenance such unions after 1563, it turned out that Spanish colonial law had incorporated the pre-Tridentine canons, according to which the marriage was valid. In a similar case, where a priest had declared a marriage bigamous, the Court discovered that ecclesiastical investigations into bigamy required the permission of Spanish royal courts, and, such permission not having been obtained, the claimant to the will was deemed legitimate. The Court refused to posit historical ruptures in the organic law.

All of this stood in marked contrast to the treatment of church polity and property in Europe, where ecclesiastical institutions were submitted to various Kulturkämpfen supervised by government authorities. Interestingly, the Court had several opportunities to play the role of their European counterparts. In Vidal v. Girard’s Executors (1844), a philanthropist’s descendants sought to overturn his will because it endowed a boys school in Pennsylvania with the strict provision that no clergyman should ever teach there. Daniel Webster argued before the Court that the will embodied the anti-clerical ideas of Thomas Paine, and thus violated the common law strictures against blasphemy. Here, the Court might have succumbed to the temptation to weigh the relative merits of religion and secularism in education; instead, it affirmed that Christianity is part of the state’s common law, and then ruled narrowly that Girard intended no such insult in his will.

Then, in Permoli v. New Orleans (1845), the Court had a chance to extend the scope of the free-exercise provision of the First Amendment. A Catholic priest was convicted of violating a municipal statute forbidding funerals in churches rather than in cemeteries. He argued that the ban breached the First Amendment, the Northwest Ordinance of 1787, which protected religious liberty in the territories, and the state constitution of Louisiana. What better chance to give judicial force to a great principle of liberty? The Court, however, ruled that the Northwest Ordinance ceased to bind Louisiana once it became a state in 1812, and that the Constitution protects religious liberty against Congress, not the states. In the Holy Trinity case (1892), the Court had to consider a Congressional act that limited religious liberty. After Congress passed a law forbidding importation of foreigners to work in the United States, a suit was brought by an Episcopal parish in New York City that wished to hire a British rector. The Court ruled that the law was wrongly applied. Justice Brewer reasoned that because the United States was a “Christian nation” that had no public practices deliberately hostile to religion, Congress could not have intended to forbid the reception of foreign nationals as ministers.

One of the best chapters in Hitchcock’s study is “The Faiths of the Justices,” in which he examines the religious affiliations and ideas of Supreme Court justices from John Marshall to Stephen Breyer. Interestingly, until the 1940s, the religion of the individual justices provides almost no clue to how they will rule on cases involving religion. Justice Bradley”who abhorred religious doctrines, held that the Jewish scriptures are full of “crudities,” and believed that Paul perverted the primitive message of Jesus”not only defended the role of traditional religion in common law, but went so far as to uphold sabbatarian laws by citing ancient Jewish observances. Justice Brewer, a staunch Congregationalist, gave as evidence that the United States is a “Christian nation” the voyages of Christopher Columbus at the behest of “their Catholic majesties, Ferdinand and Isabella.” The second Catholic on the Court, Joseph McKenna, upheld a contract requiring the teaching of Calvinism in a school founded by missionaries in Hawaii. Justice McReynolds, who was vociferously anti-German, and who was deemed one of the most bigoted and racist members of the Court, upheld the rights of parochial schools in Meyer (1923) and Pierce (1925), even though in the Meyer case the issue turned on the teaching of German. Justice Hughes, who led a fight to eliminate Baptist requirements at his alma mater, Brown University, and who had little use for Catholics, upheld the legal enforceability of the monastic vow of poverty insofar as it affected incomes earned by royalties.

But beginning in the 1940s, the personal faith of justices began to influence how they would rule in cases. “In 1947,” Hitchcock writes, “for probably the first time in its history, the Court was composed of a majority who were alienated from the religions of their youth, men who had come to believe that the faiths in which they had been raised were to some extent false and even pernicious.” More, a new philosophy of civil rights and liberties was emerging worldwide, in response to the dictatorships and the war. Religion became an occasion for the more aggressive doctrine of civil liberties. In a seven-year period, from 1940 to 1947, both religion provisions of the First Amendment were “incorporated” against the states through the Fourteenth Amendment.

Incorporation of these clauses removed the old firewall that had allowed justices to treat religious disputes without regard to the First Amendment. Religion in public life now became a fully constitutional issue. Having little case law to guide the new judicial endeavor, the Court had to construct a “doctrine.” One leg of that doctrine was that the Founding Fathers were separationists”a false legend that proved to be a dead end for legal reasoning; it allowed critics to hoist the doctrine of separation on its own “historical” petard.

Hitchcock argues that the new jurisprudence was in search not of a historically grounded position but of a doctrine that made acts of establishment “intolerable in themselves.” In the Flast decision (1968), the Court threw open the gates of litigation by adopting the principle that standing to sue (for violations of the establishment clause) depends not on a showing of injury but solely on one’s status as a taxpayer. Under the Court’s insistence that establishment includes, as Justice Black put it, “religion in general,” huge tracts of territory came open for law suits: not merely churches and specific theological doctrines, but moments of silence, Christmas trees, soup kitchens, and an indefinite array of animate and inanimate things.

Hitchcock shows how the quest for a new, comprehensive First Amendment doctrine destroyed the obvious, inherited foundations: strong historical continuity with the founding era and subsequent case law, civil religion, and the idea of a “higher law.” Aware of the free-floating nature of the project, the Court in the 1970s attempted to translate the big doctrine into little ones, spelled out in “tests.” The Lemon decision (1971), for instance, held that state actions must avoid unnecessary entanglement with religion, must have a predominately secular purpose, and must have a primary effect that neither advances nor inhibits religion.

This presupposed, however, that the Court would be able to pick out, non-arbitrarily, what counts as “secular” or “religious” in entanglements, purposes, and effects. Beginning with the Lynch decision (1984), justices endeavored to apply yet another “test””the reasonable-observer test, in which the Court would decide whether a hypothetical person would detect the presence or absence of forbidden religious “effects” in public places. This test, in turn, led the justices to distinguish between a “reasonable person” and a “casual passerby.”

All of this, despite the Court’s insistence that religion is essentially subjective or tribal. According to Justice Brennan, the Court itself can be blinded by “ethnocentric” interpretations of religion. “It can hardly be doubted,” averred Justice Blackmun, that secular things “take on a religious nature” when promoted theologically by “religious figures.” The perspective of some observers renders the “effect” religious.

In short order, religion jurisprudence became just what John Courtney Murray had warned against: “articles of faith” masquerading as “articles of peace.” In Allegheny (1989), Justice Blackmun asserted that it is the “purpose” of the Establishment Clause to protect “the logic of secular liberty.” What about religious liberty? In his discussion of the McCollum decision (1948), Felix Frankfurter asserted, “In this country, the church is subordinate to the state.” This premise would have been acceptable to many nineteenth-century European regimes, but the struggle over subordination is precisely what the Court avoided in its first century and a half. Hitchcock concludes: “The modern Court sees religious liberty as a conditional freedom only, not merely in the obvious sense that society cannot tolerate everything done in the name of religion but in the sense that believers may claim freedom for themselves only to the extent that they adhere to the separationist understanding.”

In Everson (1947), Justice Rutledge insisted that religious believers must be the ones to retreat from any conflict. “Like St. Paul’s freedom, religious liberty with a great price must be bought. And for those who exercise it most fully, by insisting upon religious education for their children mixed with secular, by the terms of our Constitution the price is greater than for others.” Hitchcock wryly notes that Rutledge, the son of a Baptist minister, must have known that in Acts 22:28 Paul answered a similar charge with the claim: “But I was born free.” This passage illuminates the hapless work of Judge DeMent, who tried to make the teachers and teenage students in Alabama submit to First Amendment “values.” A reasonable observer would no doubt conclude that the First Amendment was not meant to be a platform for ritually reenacting Paul’s colloquy with the Roman magistrate.

Russell Hittinger is the Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.