I start by making it clear that I do not countenance any person’s failing to comply with a lawful court order. Second, I do not believe that either Judge Myron Thompson or the Eleventh Circuit Court of Appeals panel had any choice but to render the decisions that they did in view of the controlling precedents of the Supreme Court of the United States. I also find no fault in the decision of the Alabama Court of the Judiciary to remove Alabama chief justice Roy Moore from office. While I agree with some of his statements on how the law has developed, I feel that his methods have been a distraction from the real issue.
I do not know whether Judge Moore is a demagogue or merely a West Point graduate who has accepted the ACLU’s challenge. I do know that the ACLU helped create his celebrity and his political platform by its nit-picking. It chose to have relatively disinterested parties make an issue of newly elected circuit judge Moore’s placement at his bench of a small Ten Commandments plaque that he had personally crafted. The rest, as they say, is history.
I am continually intrigued by the fact that so little attention is paid to how the so-called law of separation of church and state has been developed. As is often the case, court decisions based upon result orientation, not the language of the Constitution, are accepted without further examination of the methods by which the decisions are reached. The September/October 1998 issue of Liberty published my article called “Ku Klux Icon,” in which I stated that much of the law in this area was fashioned by Supreme Court justice Hugo Black, for whom my federal courthouse in Birmingham, Alabama, is named. I suggested that his Ku Klux Klan background was an example of the political expedience that prevailed in his career, and that his membership in that organization likely influenced his opinion in Everson v. Board of Education, which redefined (or rewrote) the First Amendment term “establishment.”
Black purported to rely on the Fourteenth Amendment’s “incorporation” of the First Amendment’s establishment clause in writing his opinion in Everson. His Everson opinion reflected the typical historical inaccuracies and selectivity that have governed in this area. In the earlier article I mentioned the law review articles of two Stanford University law professors, one a Pulitzer Prize winner who, in 1949 when some objectivity still existed, charged Black with distorting history in order to read into the Constitution provisions he thought ought to be there. I also noted that the present interpretation of the establishment clause began in the 1930s as part of the “secularization hypothesis” of the intellectual elite.
For the rest of the “Story,” we can go back to 1833. There is probably no Supreme Court justice who is more widely recognized for his jurisprudential scholarship than Justice Joseph Story. If not one of the Founders, he was a “founding” Supreme Court justice. Justice Story was relied upon by John Marshall to render scholarly expositions of the law. Story was a Massachusetts-born, committed supporter of the Jeffersonian Democratic-Republican party. He was appointed to the Supreme Court in 1811 by Madison. Jefferson had urged Madison to appoint a member of his party to offset the Marshall-led Federalists on the Court. Jefferson opposed Story’s appointment, but primarily because Story had opposed Jefferson’s ill-advised Embargo Act. Story became “devoted to a liberal and Nationalistic interpretation of the Constitution and to the maintenance of National Supremacy” (Charles Warren, The Supreme Court in United States History [1928], vol. 1, p. 419).
In his Book of Legal Lists (1997), professor Bernard Schwartz demonstrated that he generally had little regard for those who have questioned the recent establishment clause law. He condemned Judge Hand’s Jaffree v. Board of School Commissioners opinion as being the second-worst non-Supreme Court opinion of all time. He elevated Justice Black to the eighth greatest Supreme Court justice of all time. On the other hand, Schwartz was compelled by history to rank Justice Story as the fourth greatest Supreme Court justice of all time. Not only did Schwartz rank Story highly as a Supreme Court justice; he ranked Story’s Commentaries on the Constitution of the United States (1833) as the third -best law book of all time. We seldom see, however, a discussion of this great justice’s views of the establishment clause.
One of the key points that Story makes is that the governmental fostering of religion had never been considered to be against the “principles” of “republican liberty.” This recognition flies in the face of the recent Supreme Court holdings that the Fourteenth Amendment due process “liberty” clause creates a high and impregnable wall of separation between church and state. This is significant because Black and others have relied on the liberty clause to justify their revised establishment law.
A few quotes from Justice Story’s great Commentaries will illustrate the true picture:
“Indeed, the right of society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to him for all our actions, founded upon moral freedom and accountability; a further state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues;—these never can be a matter of indifference in any well ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them” (§ 1863).
“Now, there will probably be found few persons in this, or any other Christian country, who would deliberately contend, that it was unreasonable, or unjust to foster and encourage the Christian religion generally, as a matter of sound policy, as well as of revealed truth. In fact, every American colony, from its foundation down to the revolution, with the exception of Rhode Island, (if, indeed, that state be an exception,) did openly, by the whole course of its laws and institutions, support and sustain, in some form, the Christian religion; and almost invariably gave a peculiar sanction to some of its fundamental doctrines. And this has continued to be the case in some of the states down to the present period, without the slightest suspicion, that it was against the principles of public law, or republican liberty” (§ 1867). (Emphasis added.)
“Probably at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, ‘that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship.’ An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation” (§1868).
“It yet remains a problem to be solved in human affairs, whether any free government can be permanent, where the public worship of God, and the support of religion, constitute no part of the policy or duty of the state in an assignable shape” (§1869).
“The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government.” (Emphasis added) (§1871).
The § 1871 commentary is absolutely consistent with a letter from Thomas Jefferson to Samuel Miller quoted in my earlier article. The Miller letter is seldom mentioned by those who quote Jefferson. The emphasis has been on a selective quote from Jefferson’s letter to the Danbury Baptists. In the minds of many, Justice Black’s language has replaced the actual language of the establishment clause, which reads, “Congress shall make no law respecting an establishment of religion.” We seldom see the word “establishment” used in more recent cases, other than as a designation of the title of the clause. It is never mentioned that “establishment” was intended to apply to “a church recognized by law as the official church of a nation or state” (Merriam-Webster’s Collegiate Dictionary, Eleventh Edition, defining “established church”. The clause, as written, refers to Congress and not to any individual public official. It refers to making a law and not to the individual acts of public officials. The word “respecting” was included because the writers of the Bill of Rights not only did not want the national government to establish a religion; they did not want the national government to have anything to do with the subject. Since the de jure word “establishment” created problems for the separatist philosophy advocates, they now use the du jure words “entanglement and endorsement.” The only words of the establishment clause that are left are “shall make … no … an … of religion.”
Since my 1998 article, two distinguished professors have written books, the combination of which supports all that I wrote in my article regarding the career of Justice Black and his misinterpretation and misapplication of the establishment clause and, of course, has added much more. The two books are Separation of Church and State, by Philip Hamburger, University of Chicago professor of Law (educated at Princeton and Yale), published by Harvard University Press in 2002; and Thomas Jefferson and the Wall of Separation Between Church and State, by Daniel Dreisbach, an American University professor (educated at the University of Virginia and Oxford University), published by New York University Press in 2002.
Here are just a few of the many facts that might stimulate the truly interested to read the two books:
1. Justice Black was a member of the Ku Klux Klan and was effectively elected U.S. senator by the Klan in 1926.
2. While in the Klan he “became Kladd of his Klavern, the officer who initiated new members by administering the oath about ‘white supremacy’ and ‘separation of church and state’” (Hamburger, p. 425).
3. In 1947 he became the first U.S. Supreme Court justice to use the phrase “high and impregnable wall of separation of church and state” to replace the establishment clause.
4. Not being able to find his “high and impregnable wall of separation of church and state” language in the Constitution, Black selectively quoted language from a letter by Thomas Jefferson, who was out of the country when the Constitution and Bill of Rights were written, and ignored other writings of Jefferson stating that the establishment clause applied only to the “national” government and not to the states. As Justice Story stated, establishments of churches by the states were not considered violations of fundamental liberties so as to later implicate the due process liberty clause of the Fourteenth Amendment.
5. Professor Dreisbach states that by “extending its prohibitions to state and local jurisdictions, Black turned the First Amendment as ratified in 1791, on its head. Incorporation, in short, destroyed a vital purpose for which the First Amendment (and Jefferson’s ‘wall’) had been written” (pp. 125, 126). Professor Dreisbach asserts that even Jefferson viewed the establishment clause as being designed to protect the state-established churches.
6. An admiring biographer of Justice Black has stated that “a more formally irreligious man would have been hard to find” (Roger K. Newman, Hugo Black: A Biography [Pantheon Books, 1994], p. 521).
7. The Fourteenth Amendment was ratified in 1868. Justice Black premised his “separation” philosophy as to the states on that amendment. Recognizing, however, that the Fourteenth Amendment had not dealt with the issue of church and state, “in the 1870s and 1880s anti-Christian secularists organized a national campaign to obtain a constitutional amendment guaranteeing a separation of church and state. In their constitutional objectives the Liberals failed spectacularly, but they contributed to the development of the separation of church and state in ways still evident in American culture and law” (Hamburger, p. 287).
“Believing that American constitutions did not fully guarantee the separation of church and state, the Liberals argued that the U.S. Constitution needed amendment” (ibid., p. 296).
Their proposed amendment included:
“Section 2. No State shall make any law respecting an establishment of religion” (ibid., p. 296).
“Such an amendment was necessary because, according to Liberals the U.S. Constitution had not guaranteed a separation of church and state” (ibid., p. 300).
The Blaine Amendment proposed to Congress in 1875-1876 would have applied an establishment clause to the states. It failed to pass.
“Although during the mid-1880s Liberal newspapers and organizations continued to demand a constitutional amendment ensuring separation of church and state, the heady days of 1876, when an amendment seemed a real possibility, were long past” (ibid., p. 334).
“After the failure of the Liberal and Protestant proposals for a constitutional amendment, advocates of separation focused on constitutional interpretation. They quickly forgot about arguments that an amendment was necessary and claimed instead that American constitutions had already, since their inception, fully guaranteed a separation of church and state” (ibid., p. 335).
Their efforts culminated in 1947 with Justice Black’s judicial “amendment.” The sophists would have been proud.
I urge the readers of this magazine to read Justice Story’s Commentaries and the two books. I realize that the Black doctrine has been accepted by all the “intellectuals” and many others who wish to be judged as being chicly progressive. As the apostle Paul recognized at Athens, there is little chance to persuade the intellectuals. I do have hope for others. We should not be blinded as to the real issue by an unacceptable decision to violate a court order.
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Robert B. Propst is senior United States district court judge, Northern District of Alabama, Anniston, Alabama.
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Judge Propst presents elemental aspects of the church-state debate. In defying federal law, Judge Roy Moore showed a willingness to advance a states’ rights argument that predates the Civil War and that arguably does include an original allowance for the states to protect their severally favored churches. But surely federalism has gained the day, and any such early allowance was a recognition of the obstinacy of the states on the topic. We have much evidence, though, of the clear intent of the framers of the Constitution to keep religious institutions at arm’s length and to keep the state out of church business.
However, Judge Propst is touching on the truism that empowers some who would sweep away all vestiges of the wall of separation: the new republic was a profoundly religious society and presumed to remain that way. There was no antagonism to religion in the Founders and in the state documents. Editor.
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