Church and State – The Real Issues

January 20, 1963
Rochester

Sermon Series: Our Judeo-Christian Heritage
17. Church and State – The Real Issues

In our country, churches exist side by side in relative harmony, even though a world of differences may exist between their unlike assumptions as to the source of truth and their widely differing interpretations of religious experience. But one controversy seems fated for continuing acrimony: the serious cleavage of opinion about the “wall of separation between Church and State,” to use Jefferson’s immortal phrase.

That religious institutions should divide us so bitterly on the many facets of this central issue is regrettable, but the issues are serious, not trivial. In King Henry V (sc. 1, act iv.), Shakespeare has the king say just before battle,

“There is some soul of goodness in things evil,
would men observingly distill it out.”

Church-state controversies frequently are pitched on bitter exchanges of hostile argument, and that may be bad, but there is always the opportunity in such confrontations to distill out goodness or wisdom, to clarify one’s convictions and even dissolve prejudices if discourse can be kept on the level of mutual goodwill.

Church-state relationships represent a wide spectrum of differences, some routine, some dramatic. The use of the Bible as the sanction for court testimony, the saluting of the flag in public schools, the compulsory nature of school attendance, chaplains in the armed services and Congress – all these and many more touch lightly or heavily on the church-state controversy.

But in our country at least, the most far-reaching of present church-state issues involves the public schools. For this reason I would confine my sermon today to aspects of this significant struggle.

Although the matter of public aid to parochial schools seems the most crucial issue, there are many other practices in the public schools which are attacked by many of us as transgressions of the wall of separation and defended by many others as inseparable from our “American way of life.”

The issues are not only controversial, but also confusing. We are all aware that the New York State Regents’ Prayer was declared unconstitutional some months ago. However, should you be a public school teacher in Arkansas, Alabama, Delaware, Florida, Georgia, Idaho, Kentucky, Maine, Massachusetts, New Jersey, or Tennessee, you are required by statute to read the Bible in public school classes. But if you moved to Illinois, Louisiana, Nebraska, South Dakota, Washington, or Wisconsin, you would be informed that state courts had ruled in specific instances that Bible reading was unconstitutional. If your teaching location should be Arizona, California, New Mexico, Nevada, Oregon or Vermont, you would find no instances where state courts had declared Bible reading unconstitutional, but you would find that the Attorney General had issued the opinion that Bible reading might be found unconstitutional.

Here in New York, and Colorado, Maryland, Michigan, Minnesota, Ohio and Texas, you would discover that the state courts had upheld the constitutionality of Bible reading, even though no statute exists in these states to require the practice.

Other states – Indiana, Kansas, North Dakota and Oklahoma do not require a teacher to read the Bible, but they permit him to do so. One state, Mississippi, has a constitutional prohibition forbidding the “exclusion of the Holy Bible.” (One wonders how loudly the Mississippians read Acts, 17/26, “And (God) hath made of one blood all nations of men to dwell upon all the face of the earth.”)

Other states have varieties of degrees of permissiveness for recital of the Lord’s Prayer and the Ten Commandments. (See SRL summary, 11/17/62, quoting the July 1962 issue of “SCHOOL LIFE.”)

There is common agreement that the disputed issue of permitting public assistance to parochial schools was one of considerable influence in preventing the passage of a Federal Aid to Education bill in the last Congress. The prevailing opinion is that this same condition will prevail in the present Congress. Congressional opinion is sufficiently divided so that either defenders or opponents of Federal aid to parochial schools can prevent legislation if their wishes are denied. There are of course other considerations in the passage or defeat of a Federal Aid to Education bill, but the emotional pitch generated by the possibility of including aid to parochial schools is the most intense.

There are fundamental issues underlying the whole structure of church-state disputes. The basic controversies can be divided as follows: constitutional, cultural, control.

First consider how frequently in the last few decades the U.S. Supreme Court has ruled on cases involving religion and the state.

The jurisdictional right of the U.S. Supreme Court in matters involving education is still disputed by some because education is the prerogative of the several states, not the federal government. But the First Amendment has been held to apply to state educational matters through the Fourteenth Amendment.

In 1925, a far-reaching decision was handed down in “Pierce vs. Society of Sisters.” Oregon had a state policy compelling all children to attend public schools. The U.S. Supreme Court decided unanimously that the Oregon law was unconstitutional. Mr. Justice McReynolds wrote the opinion, concluding, “The fundamental theory of liberty upon which all governments in this union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

The Everson case was the first of far-reaching decisions in recent years. This dispute involved reimbursement from public funds to parents for bus transportation of children to schools, including those whose children attended Catholic parochial schools. Mr. Justice Black delivered the majority opinion, concluding that the wall of separation between church and state was not breached by the township paying for such bus transportation.

The dissenting opinion of the minority in the decision was closely argued by Mr. Justice Rutledge, Justices Frankfurter, Jackson, and Burton agreeing.

The decision in the McCollum case in 1948 raised a storm. In Illinois, private religious groups had been permitted to come into the public schools during regular teaching hours and conduct religious classes. This practice was declared unconstitutional. Reverberations from this decision may still be heard.

A few years later (1952), the Zorach case recorded a majority of the Supreme Court Justices ruling that the released time for public school students was constitutional when the religious classes were held in locations removed from the school buildings and school grounds.

Mr, Justice Douglas in the majority opinion said in the next-to-last paragraph, “The (government) may not coerce anyone to attend church, to observe a religious holiday or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship and instruction, no more than that is undertaken here....”

In a strongly-worded dissent, Mr. Justice Black said in part, “Here the sole question is whether New York can use its compulsory education laws to help religious sects get attendants presumably too unenthusiastic to go unless moved to do so by the pressure of this state machinery.”

Last Summer, the Supreme Court ruled that the New York Regents’ Prayer was a violation of the First Amendment.

We are probably too close to these events to ascertain whether a consistent policy is being established by the different decisions. If the Supreme Court seemed to be erecting a higher wall in the McCollum and Regents’ Prayer decisions, so it might also be said they were weakening the wall of separation between church and state in the Everson and Zorach cases.

We may know more of the emerging pattern this year, for the U.S. Supreme Court has agreed to decide two cases of great significance. The Court will review a 4/3 decision by the Court of Appeals of Maryland which upheld Bible verses and the recitation of the Lord’s Prayer in the Baltimore Public Schools. In another case, state officers have appealed a federal court ruling in Pennsylvania that Bible reading exercise in public schools is unconstitutional.

I am one who believes that a strong wall is as necessary a bulwark between church and state as other provisions in the Bill of Rights insure other freedoms. Therefore, I devoutly trust that the Court will follow the McCollum and Regents’ Prayer precedents, rather than the Everson and Zorach precedents.

Secondly, when taking this position advocating the strictest possible separation between church and state, one must confront the argument from culture. This contention usually goes something like this, “This is a Christian nation; religion is part of our American way of life; to take it out of public schools is to rob us of an essential part of our heritage; the effect of such decisions as rendered in the McCollum and Regents’ Prayer cases is to make our culture secular where it was always the intent of our Founding Fathers that this nation should be a religious nation.”

This may seem a persuasive argument when stated in attractive generalizations, but serious flaws are revealed when the case is examined more closely.

Our heritage discloses that Christianity is not one religion, but many. There are religions of ecclesiastical authority and religions of individual intuition; there are religions of reason and religions of revelation; there are Christian religions pre-occupied with theology and Christian religions emphasizing liturgical traditions; there are Christian religions devoted to the sacraments and Christian religions where the preaching of the “word of God” is central.

When one narrows down to Protestantism, then there are four main divisions, each with sub-groups, Lutheranism, Anglicanism, Calvinism and the free churches of which there are at least 250 recognized denominations in our country today.

It is far more accurate to say we are a nation of many religions than a religious nation, for the former is the authentic cultural condition. Furthermore, the atheist or agnostic has no limitations on his citizenship or civil rights and has a right not to have a religion associated with his citizenship.

Jefferson and Madison were primary in the securing of religious freedom in the United States. Jefferson’s proposal to the Virginia [legislature] passed after seven years of opposition and consideration.

Madison was effective in two basic ways. In the Virginia Assembly of 1784-85, he presented his famous “Memorial and Remonstrance to the Religious Rights of Man.” This was an attack on a bill which would “establish a provision for teachers of the Christian religion.” Later on in the career of this great American, he was responsible for including the right of freedom of religion in the First Amendment of the Bill of Rights.

It is important to remember that these founders of religious freedom would not have pleased those persons who today exhort us to adhere to our heritage as a “Christian” or even monotheistic nation.

When Jefferson said “free,” he meant free, as attested by his “Notes on Virginia,” “The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbors to say there are twenty gods or no God.” Jefferson asserted that to compel outward conformity to any religion would force neighbors to be hypocrites. (See CORNERSTONES OF RELIGIOUS FREEDOM IN AMERICA, Joseph L. Blau, Beacon Press, p. 72 ff.)

Many if not most of our Founding Fathers were immediately inspired by the Rationalists of the Enlightenment and by the humanitarian goals of the American and French revolutions. “My mind is my church,” said Thomas Paine. To find strong influences on the American Revolution immediately flowing from the organized churches of the time is no easy task. I see more influence from the Deists, Franklin, Washington, the Adamses, Jefferson, Madison, Paine, than the organized churches of the time.

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Supplementary Note: In a [post]-sermon conversation, a qualification or correction was made which I accept. By stating the case as I did, it could be implied that Colonial America comprised two groups: Christian orthodox and “unbelievers” or “Agnostics.” This was not true, for there were many who defended the position of religious freedom who did not fit either category.

The Jewish settlers would be a notable example. Their Hebrew scriptures were adopted or appropriated by the Christian orthodox as the “Old Testament.” Furthermore, Jewish immigrants, particularly in the New Amsterdam Colony, had achieved certain religious freedoms long before the Revolution.

The majority joined the Colonial movement, and their ideals and goals strengthened and assisted the Revolution by military service and financing and the establishment of the Republic.

I would certainly affirm the continuity of the “Judeo” portion of our Judeo-Christian heritage as well as later Christian developments.

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Church historian, Wilhelm Pauck, makes the point, “one of the great achievements of the democratic state is the establishment of religious tolerance, or the freedom of religion. This fact confronts the Church with an opportunity that it has not yet fully realized. It still has to perform important tasks in connection with religious liberty. This is due mainly to the fact that it was by political and not ecclesiastical action that the practice of tolerance was secured. To be sure, the fathers of American democracy were influenced by Christian ideas and movements when they provided for the freedom of religion, but these represented radical minorities within Christendom, and not the larger churches. Indeed, the major impetus toward tolerance came as a reaction against the practice of persecution of religious minorities by majorities, and it was inspired by a view of religion that was critical of the traditional religious and social reasons for intolerance.” (THE HERITAGE OF THE REFORMATION, The Free Press of Glencoe, p. 251).

If we are depriving our young people in the public school by not teaching religion, the mistake is in not teaching ABOUT religion. Our heritage is too diverse to attempt to teach A religion. when taught by public school teachers properly qualified, academically, I can envision considerable value in teaching young people the history of religions and the story of the religions of the world; instructing them not only about the contribution of Christian saints but also the debt we owe agnostic seers; not only the power of ecclesiastical authority but also of the strength of the free religious mind; not only what people world-wide have believed about prayer, but also pointing to the central core of ethical conviction found in all the world’s great religions.

I have no confidence that this proposal would be at all to the liking of those who want “religion” taught in the public schools, but I am sure such a broad and inquiring point of view is more in keeping with the spirit and actions of the Founding Fathers, who cherished reason, knowledge, and freedom.

Thirdly, and most important of all the basic propositions I ask you to consider today, is the necessity that the citizenry control public education. Other religions operate private parochial schools, as well as the Roman Catholic Church, but the millions of children enrolled in Catholic schools, compared to the small numbers in all others, make the primary issue one involving the educational philosophy of the Roman Catholic Church. As Mr. Justice Jackson said in his dissent on the Everson case, the “whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies.” (THE SUPREME COURT AND EDUCATION, edited by David Fellman, Columbia University Press, p. 19).

Mark Twain once said, “I have been educated to enmity toward everything that is Catholic, and sometimes in consequence of this, I find it much easier to discover Catholic faults than Catholic virtues.” (ON THE DAMNED HUMAN RACE, p. 159). While I have not been educated to enmity toward everything Catholic, I have been taught a critical view of the historical basis for the numerous claims for the religious supremacy of the Roman Catholic Church. It is fair to assume that a person who believes in the right of free judgment in a democratic church organization will have difficulties fully appreciating the feelings of the convinced believer of the authoritarian church. Nevertheless, when a religious institution insistently seeks public benefits, sanction is created for a person to question the claims people or churches make for special favors from public institutions while at the same time asserting loyalty to private religious institutions, attitudes, and spirit.

If it were only the right of the family to send children to a religious parochial school, one could have no present question about the legality. The Supreme Court’s unanimous decision in the Oregon case clearly defines such right.

It is also true that any family which invests a significant portion of its income in educational expenditures and reserves can appreciate the heavy financial burden carried by the family which is taxed by the state for the public schools, but whose children attend private religious schools because the rules of the religion require this. The plea is made that this is either double taxation or taxation for which they receive no benefit.

But this freedom to withhold children from the public school carried no additional right to claim public assistance or exemption for private religious reasons. Nor in recognizing the right of a church to operate a parochial school does the state also provide the financial means to ensure the quality and instruction that the parents and parochial system would like to have.

The cost of maintaining an enlarged public school system would increase greatly were the parochial schools to disband. Of course there would have to be immediate, large-scale re-adjustments should such an unlikely event occur.

But the withdrawals to parochial school are voluntary. If there were a return to the public school system, the public would have to provide the facilities and program.

In most of America, the public school is the responsibility of local school boards, functioning under state law in accordance with rulings from time to time by the U.S. Supreme Court. School boards are elected by that portion of the public willing to vote. Budgets must be responsible and adequate fiscally, curriculum and instruction must measure up, or the public can vote out the school board, which is the public authority over school administration.

There is no indication whatsoever that the parochial school system is similarly accountable to the public. The educational administration and policies are directed by the clergy; the Bishop is head of the Diocese, including the parochial educational system. In a debate in Boston a few years ago, Methodist Bishop G. Bromley Oxnam phrased the issue cogently when he said, “Public responsibility for support of education implies public responsibility for policies that are supported.”

Pope Pius XI, in an encyclical dated January 16, 1930, is quoted as saying, “for a school to be acceptable it is necessary that the whole teaching and organization of the school – namely the teachers, the curriculum, and the books – be governed by the Christian spirit, under the maternal direction and vigilance of the Church.” (“Public Aid to Parochial Education,” Harvard Law School Forum, 1951).

I do not question the right of the Pope to so direct the communicants of his faith in their educational procedures. But I see no legal or other justification for supporting such a sectarian school system with public taxes, either by direct support, or special tax exemptions for parents of parochial school children. Public monies should mean public control, the right to apply public taxes; make public appropriations; the right of political recall of school boards; and the obligation of public accountability by administrators and teachers.

The basic issues of church and state are constitutionality, the cultural meaning of freedom of religion as it was intended in the Bill of Rights and as it has been clarified by court decisions and the right of public control of school systems supported by public monies.

The issues will remain with us for a long time. I have no hesitancy in supporting the wall of separation of church and state. Our colonies were never united in one religion. Religious pluralism has always existed here. Memories of persecution were fresh in the [minds] of many revolutionists. The wisdom of Jefferson and Madison was not constructed of phantoms, but on the premise of religious freedom in a land where men and women of fervent faiths and men and women of little religious faith had to work together, fight together, sacrifice together and pledge their lives and honor to a system which would achieve both abundance and justice. The goals have not been fully achieved, but we have come a long way.

In the Zorach case, Mr. Justice Jackson, in a dissent, said this – and his words might well be engraved near the top of the principles we hold dear - “My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be collected and decided by Caesar.”