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The Law and the Constitution

James Hitchcock

Religious believers, rather than seeking to extend their influence in American society, have been reduced to protecting what seems like a steadily diminishing area in which they are allowed to have any influence at all. Today liberals who glory in the clash of "pluralistic" opinions in the political realm and who continuously seek to expand the scope of freedom of expression simultaneously want to restrict religious freedom as narrowly as possible.

AS NOTED, America has, from the beginning, had a somewhat ambivalent attitude towards religion in public life. This stemmed from the fact that some of the Founding Fathers were essentially Deists, in the eighteenth-century sense, and some were believing Christians. Both streams helped to shape the American political system. It is possible to find precedent for both a rigid and a more permissive understanding of the principle of separation of church and state. Thomas Jefferson's personal suspicion of formal religion did not altogether prevail. Many customs grew up which demonstrate the esteem placed on religious faith: meetings of Congress are opened with a prayer and congressional chaplains appointed; the government commissions clergymen to serve as chaplains in the armed forces; the motto “In God We Trust” adorns official currency. Though the public schools eventually came to be the chief battleground between believers and secularizers, until at least World War II and longer in some places, the public schools frequently had a strongly religious character. Clergymen often served as teachers. The Bible was read. Prayers were recited every day. When the first Catholic schools were established in the mid-nineteenth century, it was not because the public schools were secular but because they were too Protestant.

Prior to World War II, there were few cases involving serious issues of religious freedom or separation of church and state that came before the Supreme Court. A loose, but comfortable, working relationship between religion and the public order was accepted by almost everybody. Perhaps the two major exceptions were an 1878 case (Reynolds v. United States) in which Utah Mormons were forbidden to practice polygamy and a 1925 case (Pierce v. Society of Sisters) in which the Court ruled that children could not be forced to attend public schools if suitable parochial schools were available.

At the opening of World War II, there were a spate of major court cases involving the right of conscientious objection to military service and the right not to salute the American flag if this violated an individual's religious convictions. The Jehovah's Witnesses were involved in these cases, and the Court essentially upheld their rights.

Beginning in 1947, however, and continuing unabated until the present, there have been an enormous number of court cases involving questions of religious freedom and separation of church and state. The number of such cases during these thirty-five years has far outstripped the number brought to court in the previous more than 150 years of the country's history. They have also raised all kinds of new issues, and the end result can justly be said to be a kind of revolution in the relationship between religion and American life.

Between 1948 and 1963, in a series of decisions, the Supreme Court essentially ruled that no religious exercise of any kind — readings from the Bible, general and non-denominational prayers — can be permitted in the public schools. Between 1947 and 1977, the Court banned most forms of public aid to religiously affiliated private schools, although it made a major exception in the case of colleges and universities. In effect, the Court established that public education must be secular. There was little opposition to permit government aid for private education for the children of those citizens who find this secularism unacceptable.

Many people have protested these decisions and decried their long-range impact on the country. The standard reply is always that, whatever hardships or seeming inequities they may impose on religious believers, such decrees are necessary in order to uphold the clear meaning of the First Amendment. To this is usually added the claim that religious believers should welcome such decrees, because their own religious freedom depends on the continued maintenance of strict separation of church and state.

The most obvious refutation of this claim has been noted. Throughout most of American history, arrangements existed which were not deemed violation of the Constitution. There has been a genuine revolution in judicial thinking since World War II. Furthermore, where public aid to religious schools is concerned, a number of countries comparable to the United States — Canada, Australia, the Netherlands — provide this aid equally to all religious schools, without suffering any unhappy political results.

If courts prior to 1947 did not generally think in these terms, what brought the revolution about? The simplest and best answer is that pressure groups organized themselves after the war precisely to bring it about. They had a vision of a secularized America, and they planned and executed a judicial and legal strategy to have that vision enshrined in law.

The three principal groups were the American Civil Liberties Union, probably the most important force for legal secularization and largely made up of people with a dogmatic belief in it; the American Jewish Congress principally motivated by the estimation that Jews fare better in a secular than in a religious society; and Protestants and Other Americans United for Separation of Church and State, a group which at first simply opposed government aid to Catholic schools, but later changed its name to Americans United for Separation of Church and State and joined in the general secularist pressure. These three groups, as well as others, raised issues the courts had never before considered and challenged practices which had always been tolerated. As important as the specific rulings they obtained was the fact that for the entire post-war era they have kept religion on the defensive in the American legal system through relentless pressure for secularization. Religious believers, rather than seeking to extend their influence in American society, have been reduced to protecting what seems like a steadily diminishing area in which they are allowed to have any influence at all.

Secularizers insist that the meaning of the First Amendment is plain and the decisions they seek are virtually incontestable. However, the personal beliefs of both plaintiffs and judges in such cases play an important role in explaining why sometimes extreme separationist attitudes have been accepted by the courts.

Probably the most successful lawyer arguing church-state separation cases since World War II has been Leo Pfeffer of the American Jewish Congress. Rather than a disinterested devotion to the Constitution, Pfeffer has confessed that he has a strong dislike of parochial schools. He argues plausibly that court decisions have brought about a “triumph of Secular Humanism.” In one case brought by the American Civil Liberties Union, the plaintiff was a woman who believed that religious education deforms children's minds.

William 0. Douglas was one of the most influential Supreme Court justices in American history. From just before World War II until the late 1970s, he played a key role in a number of cases. Douglas was a thorough Secular Humanist who had little use for organized religion. Equally influential with Douglas during the same period was Justice Hugo Black, who thought only “hypocrites” attend church and that good men do not need to attend.

Modern Supreme Court decisions strongly reflect the assumptions of eighteenth-century rationalists, especially in their suspicion of religion as a divisive force in public life. For example, the phrase “wall of separation of church and state,” now treated as part of the Constitution itself, was a private metaphor of Thomas Jefferson and received almost no recognition by the Supreme Court until 1947.) Often they have referred to religious bodies as “sects”, a word tending to imply narrowness and fanaticism. Justice Black, in a 1952 case (Zorach v. Clauson), stated explicitly that the Founding Fathers wanted to guard against a situation in which religious believers “would sometimes torture, maim, and kill those they branded `heretics,' `atheists,' or `agnostics.'” In a 1971 case (Lemon v. Kurtzman), Chief Justice Warren F. Burger wrote that, while political disagreement was generally a good thing, political division along religious lines is an evil which the courts must protect against.

Such opinions represent not careful judicial thought but the prejudices of the judges. These prejudices have now been enshrined in court decisions. (Not all the judges or lawyers who subscribe to such opinions are necessarily secularists themselves. Many religious believers have naively allowed themselves to be persuaded to accept the modern judicial revolution as expressing the true meaning of the Constitution.) Religion, guaranteed its liberty by the same First Amendment which forbids union of church and state, is now treated in law as a stepchild. Liberals who glory in the clash of “pluralistic” opinions in the political realm and who continuously seek to expand the scope of freedom of expression simultaneously want to restrict religious freedom as narrowly as possible. Such a desire, which can scarcely be defended logically, appears to stem from a belief that religion is of its nature a dangerous and destructive force. It is a feeling held by people who are personally comfortable only in a society where they sense that religion has no influence.

There have been blatant attempts to restrict religious freedom in the name of church-state separation. For example, in the mid-1970s Congress began forbidding the use of tax money to finance abortions. Suit was brought to undo that prohibition (McRae v. Galzfano, later McRae v. Harris) on the grounds that it reflected the concerns of religious believers, especially Catholics who were “imposing” their religious beliefs on others. Testimony in the case involved prying into the private lives of congressmen to determine their religious practices. The Supreme Court rejected the claim, but only by a 5-4 vote. Had one man voted differently, religious believers would, in effect, have been prohibited from politics, and only those people motivated by purely secular concerns would be allowed to influence public policy.

In a 1981 case (Chess v. Widmar), the Court ruled that a state university could not prohibit a student Bible-study group from meeting on campus if it granted meeting space to other groups. A university which granted meeting facilities to Marxists, homosexuals, and all kinds of other student organizations spent thousands of tax dollars to defend an attempt to suppress religious liberty. In another case (Dittman v. Western Washington University, 198O), presumably overturned by the Supreme Court's Chess ruling, a court held that a state university could impose restrictions on religious groups which it did not impose on other groups, because religious groups pose “a clear and present” to separation of church and state.

Such cases result directly from what can be called the momentum of judicial secularism. As a result of thirty-five years of such cases, courts tend now to rule automatically against religious organizations and practices. Fanatic secularizers are encouraged to bring more and more outrageous cases. Not only do they show themselves at best indifferent to matters of religious liberty, their aim is obviously to restrict religion to private practice only. Every vestige of religious influence is to be expunged from public life, and religious believers are to be allowed a public voice only to the degree that they accept the secularist consensus. Even the private practice of religion is not completely secure. Some secularizers admit their desire to tax church property, which would probably have the effect of forcing many churches out of existence.

Largely in response to the enforced secularization of public schools, many Evangelical Protestants began establishing their own schools in the 1970s. This followed an example set earlier by Catholics, Lutherans, Christian Reformed, and some Jews. Such schools have been subject to a great deal of harassment from state agencies, in terms of academic accreditation, building codes, etc. The Federal government has tried to deny such schools tax exemption on the grounds that they are racially segregated. Only determined political action and expensive court cases have prevented many of these schools from being stifled at birth by hostile government officials.

While the courts have been extremely vigilant against the least signs of religious “entanglement” in politics, they have largely ignored the possibility that certain of their decisions may be giving unfair advantage to secularist groups. (One of the plaintiffs in the earliest post-war separationist case, McCollum v. Board of Education, later became president of the American Humanist Association and a signer of Humanist Manifesto II.)

Most people think of religion as belief in a personal God and, usually, membership in a church. For separationist purposes the courts think in the same way. Their strictures against “entanglement” generally apply only to organized religion in the traditional sense. However, where religious liberty is concerned, they have extended their definition as broadly as possible. In a decision concerning conscientious objection from military service (Torcaso v. Watkins, 1964), the Supreme Court explicitly listed Secular Humanism as a religion qualifying young men for such exemption. In a similar case (United States v. Seeger, 1965), the Court held that religion merely requires some belief that is the “equivalent” to belief in a Supreme Being, which could include almost anything.

This being the case, religious believers are entitled to wonder whether Secular Humanism, or some other non-theistic “religion,” is now being given a privileged place in American society. Such a claim, so far, the courts have refused even to consider seriously. Far from being neutral, the American government is now in the position of favoring unbelief over belief and irreligion over religion, although the First Amendment merely requires that the government favor no particular church over other churches.

The issue becomes particularly explosive in the public schools. Many Christian parents believe their children are being exposed to Secular Humanist ideas under the guise of neutrality. By now practically all public schools have compulsory sex-education classes, taught in a variety of ways. Some parents object to these in principle, believing that sex education is a parental responsibility. Other parents would support such classes, but only if they included strong moral guidance as well as mere information. However, the moral principles of neither group are currently respected, except in cases where parents are able to bring pressure to bear on school officials. Thus students are often exposed to instruction which is morally repugnant to the parents and which tends to undermine parental teaching and authority. In the McCollum case the Court ruled against religious instruction on public-school property during school hours, even though children were not required to attend such classes, in part so that the children who did not attend might not be to embarrassment and harassment. However, the courts have shown no disposition to make a similar ruling in favor of children and parents with regard to sex-education classes. The long range effect of court decisions has been to protect nonbelievers from religious influence in the public schools, while denying believers' rights to be protected from irreligious influences.

Some of the sex education in public schools undermines religious belief about sexuality in a passive way. It treats sex merely as a technical function and imparts information without any moral guidance as to its use. Increasingly, however, sex education is explicitly anti-religious. The leading “experts” in the field (such men as Lester Kirkendall and Sol Gordon, signers of Humanist Manifesto II) state bluntly that their purpose is to help students “get over their hangups.” These are precisely the moral principles they learn from their parents or their church. The aim of sex education is now to help young people become “sexually active” in any way they choose, without moral scruple. This guilt-free hedonism is deemed necessary to a psychologically healthy existence. Parents who object strongly to such programs are nonetheless required to support them with their taxes and to allow their children to be part of them. This is a blatant violation of the rights of conscience that courts choose not to notice.

Sex education manifests the double standard which now affects public policy. In many schools representatives of Planned Parenthood or similar organizations are allowed to conduct programs. These organizations actively promote abortion, contraception, and, implicitly, extra-marital sex. Efforts to ban these groups from the schools have largely been unsuccessful, though spokesmen for religious groups which might counteract this propaganda are banned. Sometimes representatives even of non-religious organizations promoting chastity are excluded. (The plaintiffs in the McRae case, including groups like the American Civil Liberties Union, argued that the personal religious affiliations of Congressmen are relevant to their political activities. Yet the same people do not deem relevant the official Humanist connections of the people who plan and promote sex-education programs in the schools.)

While sex education is the most sensitive, it is not the only area where values collide in the public schools. Religiously conservative parents are often accused of being “book burners.” Yet the law forbids the use of religious books in the classroom, and some schools even exclude them from the libraries. At the same time, schools may employ books with an anti-religious bias or which otherwise deeply affront parental values.

Increasingly controversial is the employment of the techniques of “values clarification” in the schools. Although ostensibly “neutral” with regard to values, this technique in fact undermines values children have learned from their parents or from the church. It is a system in which children are encouraged to regard all questions of belief as “open” matters of opinion. Students who appear to be firm in their beliefs are encouraged to call them into question. The ultimate end of such programs is to instill the idea that all values are relative, the result of mere personal choice.

When criticized, Humanists insist piously that they are committed to no particular position with regard to moral values. Their only desire is to see to it that all beliefs obtain a fair hearing. The myth of neutrality, accepted even by many Christians is the most useful weapon secularists have in dominating public institutions. No policy decision, no matter how apparently innocuous, is devoid of assumptions about values. The determination of what courses should be in a school curriculum, how they should be taught, what textbooks should be used, how teachers should be trained and recruited, what kind of discipline should exist in the school, and a host of other things all give moral tone and direction to the school. There is no such thing as neutrality. Those who assert that there is are, consciously or unconsciously, using that idea to promote their own favored values.

Among other things, the courts have refused to recognize that banning all manifestations of religion from the public schools is itself a value judgment. Even if teachers are scrupulous in refraining from any even implicit anti-religious stance (not all are), the absence of religion from the school itself conveys a powerful message to students. The modern school has undertaken to instruct students in everything society deems important, from science and foreign languages to first aid and the skills of driving. If religion is absent, it is reasonable to assume, it is because society regards it either as unimportant or false. Throughout history, in all cultures of the world, religion has played a profoundly important part in the lives of people, permeating every aspect of existence. When public schools ignore religion they are doing violence to reality itself and giving their students an inadequate education.

The standard secularist reply is that students should learn religion at home or in church. That is begging the question. Schools are set up, and children required to attend them, precisely because it is believed that parents are incapable of giving them all the education they need; this is the standard argument for sex education. Many devout parents lack the ability to educate their children in religion in any systematic way. Sunday school or other church-sponsored religious education lasts only at best a few hours a week and cannot compete with five full days of religionless education. Americans increasingly grow up religiously illiterate, often possessing inchoate religious feelings which they have difficulty expressing or understanding.

When various groups go to court to fight even the blandest and most innocuous prayers in the public schools, or to protest nativity scenes set up in public at Christmas time, they affirm the importance of those symbols. In effect, they argue that such symbols are powerful and have a negative effect on non-believers. But these same secularizers also argue that such symbols are mere tokens which do no good, hence that religious believers should acquiesce in their banishment. Negative symbolism is as powerful as positive. When young people in particular learn that it is forbidden to pray or read the Bible in school, to mention the name of God, or to sing Christmas carols, they cannot help but receive the impression that their society regards religion as something dangerous or unwholesome.

Many secularists are hypocritical on this issue. They proclaim a neutrality in which all groups have equal rights and none enjoys any privileges. In fact, they have created a situation in which their own godless viewpoint is established by law. Privately, many of them are quite aware of the negative effects these decisions have on religion. They consciously make use of public policy to damage religion, especially among the younger generation. Since the time of the Enlightenment there has always been an opinion in the West that deplores the authority which parents and churches have to form young minds. Now secularists manipulate the law to suppress that influence as much as possible.

Not all secularists are opposed to the authority of the family, but many are. It is inevitable that militant secularists will attack that authority, because it is the chief means by which religious belief is handed down. Just as there are humanistic psychologists who define religion as a sickness, so there are humanistic psychologists who define family life as essentially a pathology (for example, the Englishman David Cooper, in his book, The Death of the Family).

Just as court cases have steadily whittled away at the authority of organized religion, so they now whittle away at the authority of families. In Planned Parenthood v. Danforth (1976) the Supreme Court ruled that minor children may receive abortions without parental knowledge or consent. Public agencies now routinely distribute contraceptives to minors without parental knowledge, a process in which the schools often cooperate. The rationale for this is that adolescents are now “sexually active” anyway, and it is necessary that they be protected against pregnancy. But those who use this argument never ask whether sex-education programs are not themselves a major cause of this sexual “activeness.” Furthermore, while such activity is referred to as though it were a regrettable fact of life, some people in sensitive positions actually regard it as a positive good. They want to exclude parents from the process precisely because they fear parents would be a restraining force on their children's behavior.

Although it is presently imprudent to say so publicly, many secularists regard it as equally regrettable that parents have the opportunity to inculcate religious beliefs in their children from an early age. The determined secularization of the public schools and the active discouragement of private religious schools aim to minimize that influence as much as possible. Some secularists eagerly look forward to the day when a universal system of government sponsored day-care centers will take responsibility for children's upbringing soon after they leave the cradle.

To date, there have been few legal challenges to parental authority in matters of religion. However, in a case involving the refusal of Amish parents to send their children to public schools (Wisconsin v. Yoder, 1972), Justice Douglas wondered whether parents have the right to “impose” their own religious beliefs on their children. The Court ruled in favor of the Amish, but there is little doubt that Douglas's speculations represent the thinking of at least some secularists.

To date, there have also been only a few tentative attacks by secularists on the authority which churches have over their members. One reason for fearing the proposed Equal Rights Amendment to the Constitution, however, is that if it were enacted some women would undoubtedly go to court to demand their “right” to become clergy in denominations which do not permit this. Although in general the courts have refrained from intruding into the internal affairs of religious groups, there is no guarantee that future courts would not reverse that practice. Where homosexual-rights laws have been passed in some cities, attempts have been made to force religious schools to hire homosexual teachers. Court rulings on this question, because confined to the local level, have been inconsistent.

The secularists' political and judicial onslaught since 1947 would not have been possible except for the inattention and passivity of religious believers. As each new case has been handed down, there have been cries of anguish and outrage but little more. Aside from a few unsuccessful attempts to pass legislation to reverse court decisions, religious believers remained politically uninvolved. Many of them were and are largely oblivious to what was and is happening around them.

The Supreme Court's decision recognizing abortion as a woman's constitutional “right” (Roe v. Wade, 1973, written by Harry Blackmun) probably woke the sleeping religious giant. The various anti-abortion movements have been far more successful than anyone could have predicted in 1973. In addition, concern for the abortion issue has directly stimulated political action on a host of other questions. The systematic pattern of denial of religious values in public life is now becoming apparent even to previously complacent people.

Most Christians probably find combative political action distasteful. It is also true that the kingdom of God is not achieved by political means. Nonetheless, political activity on behalf of religious values is essential merely to protect those values from being trampled and to insure the continuation of religious liberty. The cries of outrage directed at Christian political-action groups once again indicate that such groups are effective. For the first time in years, secularists are beginning to feel that not everything is going as they would like.


Hitchcock, James. "The Law and the Constitution." Chapter 7 in What is Secular Humanism. (Ann Arbor, MI: Servant Books, 1982), 99-113.

Reprinted by permission of the author.


James Hitchcock is a widely published author on many topics and Professor of History at St. Louis University. James Hitchcock is a member of the Advisory Board of The Catholic Educator's Resource Center.

Copyright © 1982 James Hitchcock



Copyright © 2004 Victor Claveau. All Rights Reserved