Dispatches from the Culture Wars

The focus is almost obsessively on Hugo Black because, having been a member of the Ku Klux Klan as a young man before becoming a respected Supreme Court justice, he is easy to tar. The basic argument goes like this: Black, like all KKK members, hated Catholics. Black supported separation of church and state; therefore, separation of church and state is grounded in anti-Catholic bigotry. The second argument that is made, as Bradfield did a couple weeks ago, is that the court in Everson pulled the concept of separation of church and state out of thin air. Both arguments are patently absurd.

Let's do away with the second one first. Listening to the religious right, one would think that the concept of separation of church and state was created out of whole cloth in 1947, having been completely unknown prior to that not only in Supreme Court jurisprudence but in every aspect of American history. Nathan Bradfield absurdly goes so far as to claim that the phrase "separation of church and state" itself, as well as the concept, were "fabricated" by Leo Pfeffer in arguing Everson:

This concept and these particular words were fabricated by an ACLU attorney named Leo Pfeffer in 1947 in the Supreme Court case of Everson versus Board of Education of Ewing Township. That liberal supreme court imposed it on the nation by a 5 to 4 vote...Many young people today are not aware of the fact that this concept is an ACLU invention, and that it is a concept our founding fathers would have been appalled at.

There's a reason why many young people are unaware of that: because hardly a word of it is true. First of all, Pfeffer was not the attorney in Everson, Edward Burke was. But believe it or not, Bradfield's statement isn't the dumbest thing said about Pfeffer and Everson; look at this page, which claims:

Actually, ACLU lawyer Leo Pfeffer wrote the decision for the Everson case inserting the words, "separation of church and state."

That will certainly come as quite a surprise to, well, anyone with a few active brain cells, this notion that an ACLU attorney actually wrote the Court's ruling, especially in a case he didn't even argue (he did argue Torcaso v Watkins and many other cases). Nor was Pfeffer an ACLU attorney; he was in fact with the American Jewish Congress. And if you do a google search on Pfeffer and Everson, you'll find that Bradfield's absurd statement appears word for word on hundreds of religious right websites.

All of this is a myth, of course, designed to obscure the real history of separation of church and state, which begins not in 1947 but in the 17th century with Roger Williams and continues with several of our founding fathers, most obviously Jefferson and Madison. The phrase, and variations of it, were used repeatedly by Jefferson and Madison as a description of the purpose and scope of the first amendment. And Everson was not the first case to cite it, not by a long shot; it was cited in US v Reynolds in 1879. In that case, a unanimous court cited Jefferson's use of this phrase and notes:

"Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the [First] amendment thus secured."

Thus, this notion that the use of this description of the first amendment's religion clauses began with the court in Everson is absolutely false (and the notion that it was written in by Pfeffer is monumentally idiotic).

Now on to the first argument, the claim that Hugo Black was motivated by anti-Catholic bigotry and that therefore the concept of separation of church and state is....well, what? None of the critics of Everson actually spell out the implications of this argument. It seems to be a pure ad hominem, intended only to muddy the waters and tar the decision with the taint of the KKK. Thankfully, the facts of the case show that, regardless of implication, the claim itself simply is not true.

Boston points out many of the things that I've pointed out in the past about this claim. First of all, why is the focus so obsessively on Hugo Black and not on the other justices? Why is the focus not on Justice Frank Murphy, who was himself a Roman Catholic who was in the majority with Black? Was he motivated by anti-Catholic bias too? Obviously not, which reveals this obsession with Black to be the ad hominem that it is.

Indeed, one of the things that the critics of Everson never tell you (frankly because most of them are too ignorant to know it, as they've only cribbed their arguments from other religious right sources) is that the court was unanimous in its endorsement of separation of church and state. It was a 5-4 decision, but both sides agreed on the importance of that concept. The only argument was whether the state had violated it by providing busses for parochial schools.

And the irony is that Black's majority decision upheld that state law and said that it did not violate separation of church and state. Surely if Black was motivated by anti-Catholic animus, he would not have voted to continue using tax dollars to bus kids to Catholic schools. And because it was a 5-4 decision with the other side agreeing on the wall of separation but arguing that the law violated it, Black could have made the very same argument and struck down that use of tax dollars to help Catholic schools. Clearly, there is no factual support for this absurd argument.

The other thing that they don't ever tell you is that Hugo Black thoroughly repudiated his KKK views, voting numerous times in support of civil rights for blacks and in other church/state cases to support the position of Catholics and Jews. Boston notes:

More relevant is Black's behavior on the court. He not only approved bus aid for parochial school students, but in the 1948 case McCollum v. Board of Education wrote a strong opinion that helped end the de facto establishment of generic Protestantism in public schools.

Fifteen years later, in the school prayer cases of 1962 and '63, Black again ruled in a manner that favored Catholic and Jewish students in public schools. Many of these students were being compelled to take part in generally Protestant worship exercises in the schools; the high court's rulings freed them from unwanted religious coercion.

Black wrote the lead opinion in Engel v. Vitale, the 1962 case banning mandatory recitation of government-written school prayers. In several footnotes, Black points out the discrimination against Catholics that was common in colonial America where Protestant sects were established by law.

In the majority opinion, Black states, "The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs."

He also voted in favor of civil rights for blacks and against segregation, most obviously in Brown v Board of Education, for which the KKK burned him in effigy in his home state of Alabama. Does this really sound like a guy who was intent on putting KKK ideology into practice? This is just an absurd argument on numerous levels. That will not, of course, stop the religious right from repeating it endlessly.