CHAPTER SIX
In early 1958 John Courtney Murray wrote to his Jesuit superiors with news. Senator John F. Kennedy, the Catholic Democrat from Massachusetts, had written him asking for some guidance on what Murray characterized as “the perennially troublesome question.” Kennedy wanted to know, “Can a Catholic support, in principle, the religion clauses of the Constitution?”1
Kennedy was gearing up for a presidential run. His Catholicism seemed to offer both an opportunity and a problem. Given the increasing numbers and therefore electoral strength of Catholics in American life, Kennedy’s own Catholic faith afforded him a ready political base. But the ongoing sectarian division in public affairs and the conservatism of the Catholic hierarchy raised flags among Protestants, which meant that his Catholicism had the potential to turn off many non-Catholic voters.
Fortunately, Murray had been happy to advise. He wrote Kennedy back with assurances that a Catholic could support the religion clauses of the Constitution while remaining solidly within the parameters of Catholic doctrine. A politician could do so, he later wrote, because there was an American consensus that the government was built upon God.2
Kennedy only half-listened to Murray. He accepted the assurance that he could support the Constitution. But he was not likely to talk of a government built upon God. Pierre Salinger, Kennedy’s press secretary, later recalled that Kennedy was “determined to lean over backward to disprove the suspicion that he would be a Catholic president.”3
It turned out that Kennedy’s outreach to Murray was part of a larger effort to get ahead of the issue. His advisors also reached out to journalists. The thought was to get a friendly scribe willing to write an article that would reassure the non-Catholic public. Their efforts culminated in an interview, conducted by Fletcher Knebel and published in LOOK magazine. Kennedy came prepared. To Knebel’s repeated questions about the relationship of his faith to his public life, he responded with a consistent refrain that did not follow Murray’s advice.
“Whatever one’s religion in his private life may be,” Kennedy said, “for the officeholder, nothing takes precedence over his oath to uphold the Constitution and all its parts—including the First Amendment and the strict separation of church and state.” Later, reflecting on Kennedy’s answers, Knebel went further. “In a capsule,” Knebel wrote, “his theme is that religion is personal, politics are public, and the twain need never meet and conflict.”4
Kennedy’s position was essentially that of Robert H. Jackson: a negative secularism that privatized faith. He emphasized that the church remained subordinate to the state, that the officeholder owed allegiance to the state in standing by his oath, and that whatever private religious sensibilities he held would always remain out of view in the performance of his public duty. In that way he hoped to neutralize Protestant suspicion.
But Kennedy was so focused on pacifying Protestant suspicion that it never occurred to him that he might lose his Catholic base. He should have listened more carefully to Murray because, to many Catholics, Kennedy’s endorsement of the privatization of religion made him seem like an out-and-out secularist or like a quasi-Protestant, not like a Catholic communicant. Shortly after the interview, the hierarchy publicly disagreed with Kennedy in its Catholic Almanac. To Kennedy’s avowal that his faith would remain private, the bishops responded that there was no real way to separate one’s religion from public life. “The demands of integrity,” wrote the bishops, meant that the officeholder was “answerable to God for actions whether public or private.”5
Once the bishops spoke, Catholic journals from around the country piled on. They denounced Kennedy’s interview as pathetic and as mouthing the formulas of secularism while not really believing them. “We wish he had thought as much of his fellow Catholics as of his potential non-Catholic critics,” America wrote.6
Kennedy was surprised, unreasonably so. His knowledge of Catholic doctrine was limited, but he did not think he had stated anything terribly radical. He also did not think he was selling out to Protestant bigots. “Quite frankly,” Kennedy wrote to one critic, “I do not feel that I have made any compromises; and I certainly am not, as you suggest, attempting to placate any particular group, anti-Catholic or otherwise. I am merely trying to state in my own way what I consider to be orthodox principles regarding the relationship between a Christian politician and his beliefs.”7
His strategy also did not fulfill its original intent. Protestants remained suspicious of him. Once the Catholic bishops stated that his position did not accord with Catholic doctrine, many Protestants wondered if Kennedy would actually repudiate the position of the bishops?
“How do you feel about a Catholic for President?” LOOK magazine asked G. Bromley Oxnam after Kennedy’s interview. “Uneasy,” Oxnam answered.8
The unease continued to bedevil Kennedy throughout the campaign, even after he locked up the Democratic nomination. He did not want to invite more Catholic criticism of his position. But he needed to win over Protestants and secularists to secure the presidency. He eventually concluded that he would have to address the issue again.
This time, his advisors went big. They decided against using another friendly journalist. That had not done the trick last time. The public needed to hear his response to Protestants directly, so the campaign decided to have him stand before hostile ministers from the Greater Houston Ministerial Association. He would make a statement. They would ask questions. The exchange would be televised to maximize the effect.
Prior to the event, Kennedy asked Pierre Salinger, his press chief, “What’s the mood of the ministers?”
“They’re tired of being called bigots,” Salinger responded.9
In that somewhat tense atmosphere, Kennedy took the podium. He read his prepared five-page statement word for word, only furtively looking up so as not to lose his careful formulations. His message expressed an even starker vision of religious privatization than the one he had offered in his LOOK interview. “I believe in an America where the separation of church and state is absolute,” he told them, “where no Catholic prelate would tell the president, should he be Catholic, how to act, and no Protestant ministers would tell his parishioners for whom to vote.”10
The statement was just the beginning. In the question-and-answer that followed, the ministers repeatedly quoted from papal pronouncements that rejected freedom of conscience, church–state separation, and the right of non-Catholic faiths to propagate themselves. Kennedy was, again, in a difficult position. He responded by referencing the 1948 statement American bishops made after McCollum that, he incorrectly claimed, endorsed church–state separation. But the ministers kept pushing him with statement after statement from the church that contradicted his views and that corrected his understanding. They seemed to know more about Catholic doctrine than he did. When backed into a corner, he finally admitted that he lacked theological, philosophical, or sociological expertise. But he remained firm in his commitment to the privatization of religious faith and to the supremacy of his oath of office over any other declaration of conscience.11
It was, in the end, enough. He adequately satisfied Protestants’ questions, and a sufficient number of Catholics stuck with him in spite of his efforts. He won the 1960 presidential election. And when he took office in early 1961 he found himself watching a secular expansion that accorded with his vision. But like other developments in American secularism, the action did not begin in the executive branch. It began in the Supreme Court.
The moment had been coming for some time. Although the court consistently declined to take another establishment clause case after Zorach, in other ways it had been active, especially after the appointment of Earl Warren as chief justice in 1953. Warren had been a moderate Republican governor of California before joining the court. Behind his moderate veneer was a commitment to substantive liberalism waiting to manifest itself. The year after Warren joined the court, he led the other justices in a decision to strike down educational segregation in Brown v. Board of Education. That substantive liberalism continued to grow throughout the decade. By the time Kennedy entered office in 1961 the court had signaled a broad willingness to defend rights in a variety of ways, including addressing the question of religion.
The court’s return to establishment clause cases began a few months after Kennedy assumed office but it did not immediately yield a secular revolution. The first case involved Sunday closing laws in Maryland, where employees at a discount department store sold floor wax, a loose-leaf notebook, a stapler and staples, and a toy to customers on Sunday. Maryland law allowed only a few items to be sold on the Lord’s Day—drugs, tobacco, newspapers, some food. After the employees were convicted and fined, they appealed their conviction all the way to the Supreme Court. They alleged that the law violated the First Amendment.12
The case was challenging to the justices. Labor groups supported the law because it allowed a day of rest to workers. And business groups supported the law because it allowed them to shut their doors without having to fear the competition. But the Sunday closing laws in Maryland dated back to colonial times, when Maryland was a Catholic colony. Maryland state code had many remnants of its religious history on its books, including a provision to protect the Lord’s Day from secular desecration. In agreeing to hear the case, the court had to decide whether the explicitly religious origin of the law invalidated it in a later era.13
During conference, Warren led off the discussion with a frank presumption of the Christian character of American life. It was simply obvious to him that everyone should have one day of rest per week. That was why both labor and business supported the law. And if one day a week could be set aside, why not Sunday? “Picking Sunday only conformed to the usages and habit of most people,” Warren said, “and this does not mean an invasion of religious beliefs or a preference for one particular belief.”14
Nearly all of the other justices agreed, hardly seeing anything to discuss. The one outlier was, surprisingly, William O. Douglas, who had written the majority opinion in Zorach. In intervening years Douglas had come to regret his decision. He now saw that the solicitousness toward religion in American life nearly always meant the perpetuation of Christian privilege. That was especially apparent in the case of Sunday Laws.
“None of these statutes comports with the First Amendment,” he told the other justices. “I think that we are entitled to our religious scruples, but I don’t see how we can make everyone else attune to them. I can’t be required to goose step because eighty or ninety percent goose step.”15
But Douglas’s efforts failed to persuade the others. When the court handed down its 8–1 opinion, Chief Justice Warren, writing for the majority, laid out the case in simple terms. He admitted that the laws began as a way to encourage or to compel church attendance. But he thought that the laws had acquired a secular purpose over time to protect the health and well-being of workers. That they originated in religious purpose and that they continued to comport with dominant religious ideals did not undermine the secular effect of the laws.16
To Douglas, the court was simply disingenuous in its argument. Unlike his own opinion in Zorach, which unapologetically acknowledged state support for religion, the court now sought to obscure its support behind a cloak of secularism. Douglas’s dissent was accordingly blunt. “The question is not whether one day out of seven can be imposed by a State as a day of rest,” he wrote. “The question is whether a State can impose criminal sanctions on those who, unlike the Christian majority that makes up our society, worship on a different day or do not share the religious scruples of the majority.” He thought Sunday laws were an obvious example of religious groups using the power of the ostensibly secular state to compel religious observance.17
But, as usual when it came to the subject of religion and secularism, the court soon faced other questions. A few years earlier Leo Pfeffer had been looking for a case that he could take to the court. He came across a story in the Religious News Service about a man name Roy Torcaso who had been denied a license to be a notary public by the State of Maryland because he was an atheist. Maryland law required all officeholders, including notaries, to swear their belief in God. After Torcaso was denied his license, he retained the firm of Sickles and Sickles in Washington to represent him in a lawsuit.18
Pfeffer thought he had found his case. He reached out to Torcaso offering help. When Torcaso agreed, Pfeffer worked with Sickles to refine the brief. In the original version Sickles emphasized that Maryland’s law violated the establishment clause because it constituted an official endorsement of theism. But Pfeffer, having been burned in the Zorach opinion, made Sickles rewrite it to demonstrate that the law violated the equal protection clause as well, since it privileged theists over nontheists, and to argue that it violated the constitutional prohibition of a religious test for office.19
Pfeffer pursued the case all the way to the Supreme Court. This time his attempt was successful. When the court handed down its opinion, in a unanimous decision written by Black, the justices agreed with Pfeffer entirely. There was, again, historical evasion in the court’s opinion. Maryland law was typical of many state laws dating back to the nineteenth century that required a person to affirm the existence of God in order to appear before a court, to assume public office, and to perform a wide variety of civic functions in several states. But Black ignored the ubiquity of these laws and instead portrayed the United States as historically capacious in its embrace of many religious traditions. Those included nontheistic traditions such as Buddhism, Daoism, and secular humanism, so requiring an affirmation of God’s existence both violated the Constitution and ran against the diversity of American religion.20
Black’s opinion was relatively uncontroversial in the wider public. Protestant liberals, in an indication of their increasingly direct defense of individual rights, hailed the decision as, in the words of the Christian Century, “a reaffirmation of a basic American principle of pluralism.” But it was hard to square the decision with the court’s upholding of Sunday Laws, handed down a month earlier, or even with the Zorach opinion’s declaration that “we are a religious people whose institutions presuppose a Supreme Being.”21
The case, in that way, was confusing. The court was prepared to confront outright discrimination in the name of pluralism as it understood it. But it was not fully prepared to roll back mainstream Christian power and privilege, as it showed in the Sunday Laws case. And it was especially reluctant to do anything that would make it seem antireligious, which is part of the reason it listed secular humanism as a religion even though many secular humanists would reject the label. The effect of the court’s ruling in Torcaso was to secularize law, even though the rhetoric was couched in a protection for religion.
The court would not be able to rely on such prevarication for much longer. Having indicated that it was willing to hear cases again, the challengers would soon materialize, this time around the far more explosive issue of school prayer.
The problem was an old one. Going back to the beginning of public schooling, prayers had been recited in schools, often by the teacher, sometimes by the principal, occasionally by local ministers, and frequently through rote prayers, such as the Lord’s Prayer, said by everyone. In New York the Board of Regents of the New York public-school system decided to compose a prayer that would, as the board later explained, teach children “that Almighty God is their Creator and that by Him, they have been endowed with the inalienable rights of life, liberty and the pursuit of happiness.”22
The prayer itself was fairly anodyne, by design. After the pledge of allegiance, the children were instructed to say, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country. Amen.”23
As the prayer was rolled out in New York schools, it ran into the increasing religious diversity of American life. That diversity had already caused strife. In Nassau County in Long Island, the tension was the result of an influx of newer residents, many of them liberal and nonreligious Jews. The older residents, now often with grown children, were Protestant and Catholic. They had built up a variety of Christian practices in the schools that included Christmas pageants, clergy-offered prayers, and other Christian rites. The Jewish arrivals resented the Christian privilege embedded in the school calendar and in the school day. The older residents resented the influx of children, the need to build new schools, and the refusal to conform to the latently Christian forms of public religion in the area.24
The rollout of the Regents’ Prayer in Nassau County was the last straw for those who objected to the public role of Christianity. A couple of Jewish parents decided to sue. The ACLU got involved and offered to sponsor the litigation. Jewish residents were verbally attacked by outraged Christian neighbors. Eventually the litigants were joined by others so that the case went forward with five sets of parents: two families of religious Jews, one family of Ethical Culturists, one Unitarian family, and one family with no religious affiliation.25
Pfeffer was not convinced that the prayer was obviously sectarian. He also disliked the fact that so many of the parents were Jewish, nonbelievers, or freethinkers of one kind or another. And after getting burned in the Zorach case, he wanted to approach the Supreme Court with litigation he was absolutely confident he could win. Pfeffer kept the AJC from explicit support, but he did write an amicus brief for the Synagogue Council of America, whose religious identification helped him affirm the notion that his position was not irreligious. The other major Jewish organizations also shied away from the case because of the obvious anti-Semitic dynamics of the controversy.26
The parents’ position was straightforward. They asserted that the Regents’ Prayer was sectarian because it was theistic; that it was inherently coercive because it made a person self-identify as a nonconformist and therefore violated the privacy of religious belief; and that it involved state support for religion in violation of the establishment clause. The Board of Regents, supported by nineteen state attorneys general, held that the prayer was nonsectarian and entirely in keeping with past educational practices.27
During oral argument the justices actively interrogated both sides. They asked the plaintiff’s lawyer about the many religious rituals that were ubiquitous in American public life: the use of “under God” in the pledge, Bible reading in schools, prayers before legislatures. The lawyer for the parents, William J. Butler, sidestepped these other practices while pressing the point that the Regents’ Prayer was obviously religious and sectarian.
“The reason why this prayer is said every day in the public schools is to inculcate into the children our love for God and a respect for the Almighty,” he told the justices.
“Is that a bad thing?” John Marshall Harlan asked.
“I want to make it absolutely clear before this Court that I come here not as an antagonist of religion,” Butler responded. “We come here in the firm belief that the best safety of religion in the United States and freedom of religion is to keep religion out of our public life and not to confound . . . the civil with the religious.”28
The Board of Regents, by contrast, tried to deemphasize the religious quality of the prayer without entirely denying it. Rather than propagating religiousness, their lawyer Bertram B. Daiker said, the prayer assumed religiousness. The people were religious, so the daily practices of the school would reflect that attitude without an attempt at propagating belief by the state.
“You say it isn’t teaching religion to take for granted that which underlies our whole national life,” Frankfurter suggested. “You don’t promote the air which you breathe.”
“That’s correct, sir,” Daiker responded. “This is an affirmation of all that we have learned since we were youngsters.” He pointed out that it was the same thing that happened when the Supreme Court crier said, “God save the United States and this honorable Court.”
Earl Warren was not persuaded. “Would [there] be any difference in your mind,” he asked, “if we were to require every litigant and every lawyer who comes into this Court, before he receives any recognition from this Court, to deliver the prayer that your children in the schools have delivered?”
Daiker responded that the prayer was not compulsory. This was not a case involving, in his characterization, “a captive child.”29
But Warren was not so sure. Back in conference he confronted the issue head on. “It is practically conceded that this is religious instruction, and is so intended,” he said. As such, the court had no choice. “It is a violation of the church–state rule under the First Amendment. . . . [It] is the camel’s head under the tent,” Warren concluded.
Everyone agreed but Potter Stewart. “I am still in doubt and not at rest,” he told his colleagues.30
The case presented a conundrum given the court’s historically naïve and frankly convoluted reasoning in earlier cases. But if the justices saw the dilemma, it was not apparent in the resulting 6–1 opinion written by Black. The court found that the prayer was obviously religious and that the establishment clause prohibited the government from composing prayers for anyone. Black offered his usual history lesson about why Madison and Jefferson had thought it necessary to avoid governmental entanglement with religion, which he claimed had characterized American practice. And he defended the court from accusations that it was antireligious. “It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers,” Black wrote, “and leave that purely religious function to the people themselves and to those the people choose to look for guidance.”31
Black’s opinion was relatively restrained and borderline disingenuous. By shrouding his opinion in a historical lecture on Madison’s and Jefferson’s thoughts on church and state, he rhetorically made the court into the conservator of American heritage rather than a modernizing force bringing about secular change.
Douglas, writing in concurrence, dispensed with the disingenuous rhetoric. The real issue before the court, in his opinion, was whether or not the state could finance or mandate a religious exercise. “Our system at the federal and state levels is presently honeycombed with such financing,” he wrote. He referenced the prayer uttered by the Supreme Court crier, the legislative prayers at both the state and the federal levels, the prayer in schools all over the nation. He would strike them all. “I think it is an unconstitutional undertaking whatever form it takes,” he said.32
Stewart, writing in a lone dissent, protested the damage being done to “the spiritual heritage of our Nation.” He pointed out, like Douglas, that the religious notions embedded in the Regents’ Prayer were mirrored in other institutions of American life. They were either all valid or all invalid. Stewart thought they must all be valid.33
In spite of Douglas’s and Stewart’s provocations, the majority of the court had tried hard to avoid taking a stand on other public religious practices. They were really unsure of their direction. But regardless of the avoidance, as the New York Times pointed out, “the clear implication of the ruling,” which Douglas had simply articulated, was that any religious ceremony sponsored by the state “would be suspect.”34
Others saw the implication as well. Public reaction to the decision was immediate and visceral, though it betrayed the usual sectarian split. Some religious groups voiced support. The New York Board of Rabbis praised the decision as correct because prayer in schools was “not in conformity with the spirit of the American concept of the separation of church and state.” Dean M. Kelly of the National Council of Churches, the liberal Protestant group, said that Christians should support a decision that obviously “protects the religious rights of minorities.” Thirteen prominent Unitarian Universalist ministers issued a statement defending the holding as “sound in respect to principle” and “in the interest of religion.”35
Many other religious leaders expressed opposition. Catholic bishops were incensed. Cardinal McIntyre of Los Angeles denounced the opinion as “positively shocking and scandalizing.” “It is not a decision according to law,” he continued, “but a decision of license.” Cardinal Cushing of Boston said the court’s ruling was a vehicle for communism. “It is ridiculous to have a motto like ‘In God We Trust’ on our coins and to begin legislative sessions with a chaplain’s prayer and at the same time prevent children from opening classes with public school prayer,” he said. Cardinal Spellman pronounced himself shocked. A few days later he had more to say. He called the decision “a tragic misreading of the prayerfully weighed words of our founding fathers.” He also noted that the church endorsed the prayer. The Vatican itself soon weighed in, supporting Spellman’s statements.36
Conservative Protestant figures piled on. The evangelist Billy Graham announced that he was disappointed because the court’s decision was “another step toward secularism in the United States.” Stanley Mooneyham, the director of information for the National Association of Evangelicals (NAE), complained about the focus on minorities. “The only way left for the majority to express their opinion on this matter,” he said, “is to have the majority push for a Constitutional amendment.”37
Former presidents denounced the decision. Herbert Hoover objected to the ruling as “a disintegration of a sacred American heritage.” Dwight Eisenhower complained that the court misunderstood history. “I always thought that this nation was essentially a religious one,” he said. Of the living ex-presidents, only Harry S. Truman sought to reinforce the court’s authority. He reminded everyone that the Supreme Court was “the interpreter of the Constitution.”38
Congress was apoplectic. In the days after the decision legislative business came to a standstill as one after another congressman rose to deplore the court’s ruling. The rhetoric was strident and biting. Representative Frank J. Becker, a Republican of Nassau County, called the decision “the most tragic in the history of the United States.” Representative John Bell Williams, a Mississippi Democrat, condemned the decision as “a deliberate and carefully planned conspiracy to substitute materialism for spiritual values.” Senator Eugene J. McCarthy, a Democrat from Minnesota, said the ruling was part of a trend toward “not just a secularized Government but a secularized society.” Representative L. Mendel Rivers, a Democrat from South Carolina, said that the court had “now officially stated its disbelief in God Almighty.” To Rivers, it had shown its true colors in more ways than one. The justices on the court, Rivers said, were “legislating—they never adjudicate—with one eye on the Kremlin and the other on the National Association for the Advancement of Colored People.”39
The outrage got ugly fast. Representative George Andrews, a Democrat from Alabama, complained that the court “put Negroes in the schools and [has] now taken God out.” Many of the Jewish plaintiffs were threatened. Lawrence Roth, one of the parents, was bombarded with messages calling him a “Communist kike” and telling him to “go back to Russia.” Frances Roth, his wife, told Newsweek, “I have a feeling of sadness because these are so-called godly people. If their God teaches them to wish my kids get polio and my house be bombed, then I think he hasn’t done a very good job with them.”40
Inevitably, the press began to report on the religious affiliations of the justices in an attempt to suss out their personal attitude toward religion. Black and Warren were Baptists, reporters announced. Clark, Harlan, and Douglas were Presbyterians (Clark had been a Presbyterian elder for many years; Douglas was a minister’s son). White and Stewart were Episcopalians. Brennan was the sole Roman Catholic. Frankfurter, the lone Jew, responded “No comment” whenever asked about his religious affiliation.41
Two days after the ruling, with the public still irate, President Kennedy addressed the issue in a press conference.
“Mr. President, in the furor over the Supreme Court’s decision on prayer in the schools, some members in Congress have been introducing legislation for constitutional amendments,” a reporter told him by way of preface. “Can you give us your opinion of the decision itself and of these moves of the Congress to circumvent it?”42
Kennedy was quick in his response. He acknowledged that he had not seen the language of the proposed amendments, but he thought that the Supreme Court decision ought to be supported, even if people disagreed with it. That was especially true of a subject like prayer. “We have in this case a very easy remedy,” Kennedy said, “and that is to pray ourselves. . . . I would think that it would be a welcome reminder to every American family that we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of all our children.”43
But Kennedy’s response served to inflame the controversy. Private prayer only advanced the secularizing thrust that so many people decried. The issue, in that way, was not really about the specifics of the Regents’ Prayer or the ability of the state to compose prayers for its children. The controversy was symbolic of a wider set of social transformations that some religious people lamented. “What many observers saw last week as an erosion of deep-seated religious traditions,” Newsweek said, “was actually another sign of America’s continuing transition from a primarily Protestant country to an essentially pluralistic one.”44
Oddly, given that the ruling did not apply to the parochial school system, Catholics were the ones most upset. Many bishops could not let it go. Several months after the decision, Spellman was still criticizing the court. His position had conspiratorial and somewhat hysterical overtones. He saw the court’s decision as part of a wider movement, as he put it, “to take God out of the public school and to force the child out of the private school.” The result would be “the establishment of a new religion of secularism.”45
The Jesuits over at America thought they understood the leaders of the movement: Jews. America had expressed distrust about the Jewish position on church and state for some time. Back in 1953, after the Zorach decision, the magazine had run an editorial admonishing the AJC for abandoning “the Christian, and traditionally American, position” that religion was essential to society. “Christians have learned from history that absolute separatism is the slogan of anti-religious government,” America wrote, “the USSR’s use of it being the most alarming example today.”46
A month after Spellman’s comments, America returned to the issue in an editorial entitled “To Our Jewish Friends.” It was an oddly twisting performance. The magazine began by lamenting the spike in anti-Semitism that had occurred since the prayer decision. It took pains to point out that it was not seeking to contribute to that anti-Semitism. But the magazine thought that Jews needed to consider their course carefully. There was a movement to eradicate religion from public life. “Along with the well-publicized Jewish spokesman, Leo Pfeffer, and such organizations as the American Jewish Congress,” America explained, “responsibility for the concerted opposition to the New York prayer—and to other forms of religious practice in the public schools and in public life—belongs to the American Civil Liberties Union, the Ethical Culture Society, the Humanist Associations, some Unitarians, many atheists and certain other groups with doctrinaire views on the meaning and application of the principle of separation of Church and State.”47
The problem, as America saw it, was that Pfeffer and other prominent spokesmen were pursuing a strategy of secularization that invited backlash. Pfeffer and his allies sought to manipulate public opinion to pressure the court to adopt their absolutist vision. Even moderate Jewish groups sought to create a climate of opinion to further the separation of church and state, which people then blamed on Jews as a whole. The editors thought that “responsible Jewish spokesmen” ought to disavow Pfeffer and other secularizers. They had to think about their self-preservation. “What will have been accomplished if our Jewish friends win all the legal immunities they seek,” America asked, “but thereby paint themselves into a corner of social and cultural alienation?”48
Jewish leaders were inevitably distressed. Pfeffer later explained, with barely concealed disgust, what it was like to be name-checked by the Jesuits at America. “In singling me out as the arch villain who exercises Svengalian influence on all the Jewish organizations, rabbinical, congregational, and secular,” Pfeffer wrote, “the editors of America manifested surprising ignorance of American Jewry.” The anti-Semitism of the piece was obvious to Pfeffer and was confirmed by America’s decision not to mention two of the more likely villains: the court and the plaintiffs. At the time, Pfeffer decided that the best course was to stay silent.49
The burden of response fell on the American Jewish Committee, who wrote the magazine to protest the editorial. The committee pointed out that America’s open letter was, in effect, a story of Jewish conspiracy (a classic anti-Semitic trope) dressed up as a warning against anti-Semitism. It demanded that Jews abandon their position on the First Amendment and implied that they were themselves to blame for anti-Semitism if they did not. But if the editors of America were actually disturbed by anti-Semitism, they could have warned their readers about the entrance of bigotry into public debate. “Your warning, instead, is issued to Jews,” the committee wrote. The effect of America’s editorial was to advance the anti-Semitism that its editors supposedly decried.50
Christian Century spoke more plainly. Noting the controversy, the magazine denounced America’s “thinly veiled threat” issued behind an expression of care. “The purpose of the piece seems to be to frighten Jews into deserting Protestants and other Americans who support the Supreme Court’s ruling,” Christian Century noted. “Do the editors of America mean to imply that the only way Jews will be able to forestall anti-Semitic attacks is to maintain silence on issues involving constitutional liberties of all citizens, including Jews?”51
America responded, with a certain defensiveness, that the editorial was either misunderstood or misrepresented. They sought only to question Pfeffer’s ability to speak for all Jews. Catholic readers had understood the point, they thought, as evidenced by the many Catholic journals that echoed America’s call for Jews to take a stand against secularization. Critics had accused them of the anti-Semitism that they were warning against. It was like shouting to a friend about an oncoming truck, they said, and then having the friend turn on you and accuse you of driving the truck.52
As the fallout from the school-prayer decision continued, the next bomb was already in the air. In Philadelphia a young Unitarian named Ellery Schempp began a program of silent protest over the school’s daily practice of saying the Lord’s Prayer and Bible reading. Rather than standing with the rest of the class, he sat silently and read from the Koran. “My homeroom teacher told me I would have to pay attention,” he later said. “I replied that in conscience, I didn’t think I could.” Eventually his teacher excused him from class, allowing him to read elsewhere.53
The next year, his senior year, the principal made him come back to the classroom because, he told Ellery, Pennsylvania state law required students to participate in religious exercises. Schempp responded by contacting the ACLU, which eventually agreed to represent him.54
Other challenges were also forming. The state of Maryland was experiencing controversy begun by a divorcee named Madalyn Murray. Though she had earlier been somewhat religious, by the 1950s Murray had rejected her earlier religious belief, embraced a somewhat militant form of philosophical anarchism, and had two sons by two men, neither of whom was her husband. In spite of her personal heterodoxy, she kept her irreligious beliefs largely to herself until her eldest son refused to participate in the required religious exercises in school.55
The consequences were immediate. He was beaten up repeatedly—Murray alleged over one hundred times—by his Catholic classmates. The torment was so severe that her son was later placed in psychiatric care. But the abuse was not limited to her son. She received constant threatening phone calls. One morning she found her cat strangled and hanging from a tree in the yard. The family received a voluminous stream of hate mail, which she collected and curated. Her idea was to generate a trail should a threat be acted upon. She also had the idea that she might publish the lot under the title Letters from Christians. Eventually she decided to sue Baltimore City Schools for requiring the religious exercises that led to the bullying.56
If conservative religious leaders could invent an antireligious zealot to lead the secularist cause, that person would be Madalyn Murray. In explaining to city officials her resistance to religious instruction, she told them, “I believe that the Virgin Mary probably played around as much as I did and certainly was capable of orgasm.” She later said her ultimate goal was not merely to find a little freedom for herself and her son. She wanted, in her words, “social revolution.” “I don’t want to die before I have made a revolution in America,” she told the journalist Robert Anton Wilson.57
As the combined Schempp and Murray cases made their way through the court system, conservative Protestants began to speak out. The evangelical magazine Christianity Today referred darkly to the “atheistic and naturalistic forces . . . seeking to foist their partisan prejudices upon our national institutions.” It warned that the United States was facing a declension away from God and “into the service of anti-Christ.” It predicted that should Murray succeed, the public-school system would become an irreligious vehicle of “widespread skepticism about everything sacred and holy.”58
During oral argument some of the justices agonized about the same thing. Murray’s lawyer, Leonard J. Kerpelman, told the court, “What we have here is a religious ceremony . . . which is sectarian.” Baltimore’s arrangements amounted to an establishment of religion in which Murray’s rights of conscience as well as those of her son were nullified.
Justice Potter Stewart, who was visibly disturbed by Kerpelman’s statement, asked whether striking down the practice would not nullify the religious rights of others who wanted it.
Kerpelman responded that one could not establish a religion and call it free exercise. State support for religion was state support for religion. Free exercise involved the individual’s right to arrive at his or her own religious ideas, free of state interference. To explain what he meant, he pointed out that although he was Jewish, his young daughter, who attended public schools, believed that Jesus was the son of God. She had gotten the idea through the religious exercises at her school. “I’m not too worried,” he told the court. “I think she’ll get over it, but I would rather she had never come to this belief.”59
Thomas B. Finan, the attorney general of Maryland, said in response that the school system was caught in a dilemma. If you ban theism, he said, then you establish atheism. Neutrality was not possible. So what Maryland tried to do was to recognize the long-standing Christian heritage of the country, while excusing any student who wished not to participate. It adopted a religious system that accommodated the irreligious or the religiously different. It did not adopt a secular system.60
Similar issues came up during oral argument in the Schempp case, which was scheduled just after Murray’s. Ellery Schempp was no longer a plaintiff. During the appellate process he graduated from high school, and the state of Pennsylvania modified its law without doing away with the exercises. Schempp’s case became moot. ACLU lawyers switched to his younger siblings as plaintiffs. Their attorney, a Unitarian named Henry W. Sawyer III, told the court that Pennsylvania’s practice of prayer and Bible reading was obviously sectarian and so ought to be prohibited.61
In response, the deputy attorney general for Pennsylvania, John D. Killian III, stated that the removal of Bible reading from the schools would indicate hostility to religion. It would also “open a Pandora’s box of litigation which could serve to remove from American public life every vestige of our religious heritage.” But in an indication of the tortuous weakness of the state’s position, Killian further proposed that prayer and Bible reading were not really religious. As the school practiced it, he told the court, prayer or Bible reading consisted of “a secular exercise with a secular, that is, moral purpose.”62
During conference, all the justices but Potter Stewart agreed that the practices were unconstitutional. They violated the establishment clause. Stewart, in response, tried to reframe the issue.
“All of our establishment clause cases are wrong, historically,” he said. They upheld the separation of church and state in a way that never existed in the past. Now, he said, the establishment clause had become obsolete. No one really talked about paying churches, which was his definition of an establishment. All the current cases were about governmental support or nonsupport of religion, which was about religious freedom.
What Stewart wanted to do was to have all the religion cases sent back to the states to allow them the opportunity to give every religious sect, including the atheists, their own exercises in the schools. “The state has an affirmative duty,” he told his colleagues, “to create a religious atmosphere in schools where anyone and everyone can pray and worship as he wishes.” His proposal would become enormously powerful in the future.63
But at the time, the others were not convinced. Arthur Goldberg pressed Stewart on the narrowness of his vision. Stewart clearly had not thought this through, Goldberg implied, and he had no real sense of the diversity of American life.
“Schools can’t be opened to every sect,” Goldberg told Stewart. “How about Black Muslims? How about screwball groups? You can’t draw a line that is a viable one. It would mean drawing lines that would interfere with free exercise.” The act of drawing a line itself would negate some people’s religious beliefs. The way to respect the massive diversity of American religious life was to remove the state from promoting religion in any way.64
The resulting 8–1 opinion, written by Tom Clark, said as much, though the court tried to blunt the message. Once the two cases were combined, Murray’s lawsuit should have been the controlling opinion. It had been filed first. But the justices instead put the Schempp case at the head, and Tom Clark’s opinion made repeated reference to the Schempps as an intact Unitarian family, in implicit contrast to the atheistic and libertine Murray.65
Clark also tried to downplay the transformative quality of the ruling. Rather than acknowledge that the court was overturning practices dating back to the beginning of public schooling in the United States, Clark again portrayed the Pennsylvania arrangement as aberrant. To the district’s contention that Bible reading was not really religious, Clark noted that school officials read from multiple versions of the Bible—the Catholic Douay, the Protestant King James, and what the court called “the Jewish Holy Scriptures.” In using alternate versions, the school district implicitly acknowledged the sectarian implications of its practice and the deeply religious, rather than secular, import of Bible reading and prayer.66
But Clark did acknowledge that the wall of separation metaphor did not really help much in deciding these cases. So he offered a new standard to determine when a practice violated the establishment clause. His test was twofold. Legislation must have (1) a secular purpose (2) whose primary effect neither promoted nor inhibited religion. The state must be neutral. On that test, prayer and Bible reading in schools were unconstitutional because they did not have a secular purpose and because they promoted religion.
The other justices, though, did not quite agree with Clark’s reasoning, an indication of the issue’s touchiness. They were slowly beginning to wake up to how far their jurisprudence was pushing them. As a result, they fractured, filing three concurrences. William J. Brennan Jr., the court’s sole Roman Catholic, tried to reframe the issue to confront what he called “an increasingly troublesome First Amendment paradox.”67
What the court should have seen, Brennan said, was that there was a logical interrelationship between the free-exercise clause and the establishment clause. The two clauses were so connected that allowing free exercise, such as prayer in schools, could be said to create an establishment. Alternatively, striking down the establishment could be said to limit the free religious exercise of those who wish to pray in school. It had not been a problem in the past, Brennan declared without evidence, but it had now become one because of the many religious groups with vastly divergent sensibilities that inhabited the United States. To solve the problem, Brennan began to articulate a doctrine of religious privacy as the only effective solution to the pluralized nature of public schools. That meant, in effect, the expulsion of religion from the public schools, though Brennan did not quite say so. At the same time, he allowed that in other aspects of life there might be some kind of cooperation or accommodation between religion and the government. But given the delicate subject of the education of children, he wrote, religious privatization was the only clean response to the situation.
Goldberg, joined by Harlan, also agreed with the court’s conclusion that prayer and Bible reading had to go, but he rejected the test proposed by Clark. It implied, in Goldberg’s words, “a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” Goldberg’s desire was to avoid the French model of secularism in which the government took no cognizance of religion. So although he agreed with the decision, he, like Brennan, wanted it known that the goal was not a thoroughgoing removal of religion from public life, which is where he thought Clark’s test would go.68
Douglas, like the others, agreed with the court’s conclusion, but he rejected the pose of moderation struck by the court and the further limitation of the decision proposed by the other concurrences. True freedom from religion required not merely striking down prayer and Bible reading in schools but also much more. He declined to specify any limits whatsoever, which tacitly embraced a sweeping sort of secularism that all the other justices would reject.
That left only Stewart to dissent from the actual holding. Again, like Douglas, he pointed out that the government and religion interacted in countless ways. Like Brennan, he predicted that a doctrinaire reading of the establishment clause would violate the free-exercise clause. He had objected to the wall-of-separation language in the past, and he now objected to the attempt by the court to offer a more nuanced test. The problem with the majority was that it always ended in a muddle. The choice really was between Douglas’s approach and his, he thought. There was either a thoroughgoing secularism or there was the embrace of religion in public life supported by the state. Either a person rejected religion from public life or a person allowed it and nurtured it so long as it was not coercive. There was no in-between.
The case was, in that way, revealing. In spite of the 8–1 majority the court was at odds with itself and unclear about the secularism that it was unfolding. The court’s negative secularism, with the thinness of its liberal commitments, always threatened to tip into other directions or to unravel entirely.
But the justices’ disagreement did not matter in the short term, given the core of their agreements. Reporters immediately pointed out the far-reaching effect of the case. The ruling would require changes in 41 percent of school districts in thirty-seven states. Policies requiring prayer and Bible reading were especially common in large districts, and thus the ruling probably affected the majority of American schools and the vast majority of American schoolchildren.69
In the aftermath of the decision, Ellery Schempp talked about the case and the hate calls his family received. “They all found in us an example of some group they had a prejudice against,” he said. “They’d ask: ‘What are you—Jews?’ or if we were Catholics, Polish, Arabians. Each person saw in us something he hates.”70
Catholics and conservative Protestants deplored the decision. The NAE said the ruling “augments the trend toward complete secularization” and “veers away from our national heritage of reverence.” Harold Ockenga, a prominent evangelical leader and president of Fuller Seminary, rejected what he saw as the court’s evasive reasoning. “A neutral or secular state,” he said, “while preserving the nation from dominion by a denomination, leaves America in the same position as Communist Russia.”71
Cardinal McIntyre of Los Angeles echoed Ockenga. The decision, he said, “can only mean that our American heritage of philosophy, of religion, and of freedom are [sic] being abandoned in imitation of Soviet philosophy, of Soviet materialism, and of Soviet-regimented liberty.” Cardinal Cushing of Boston said simply, “The Communists are enjoying this day.” Cardinal Spellman of New York said, thunderously, in a sermon, “No one who believes in God, and I say believes in God, can approve such a decision.”72
But Spellman’s homily was subverted by facts. Many religious groups did approve of the decision. The National Council of Churches, speaking for forty million church members, applauded the ruling as a reminder that “teaching for religious commitment is the responsibility of the home and the community of faith . . . rather than [of] the public schools.” Right Reverend Arthur Lichtenberger, presiding bishop of the Episcopal Church, affirmed the decision as being in line with the court’s “responsibility to assure freedom and equality to all groups of believers and non-believers.”73
The religious division stymied conservatives. Within a year the House held hearings on a constitutional amendment that would have allowed prayer and Bible reading in schools. During the first week many witnesses warned of moral decay, of a marching atheism of the Madalyn Murray variety, and of the denial of the nation’s religious heritage. But soon the committee leaders lost control. Liberal Protestant groups demanded that they be included. When they appeared before the panel, liberal leaders spoke against the amendment and affirmed instead that the court’s decision rightly acknowledged the diversity of American life. Seeing the religious disagreement, even some conservative groups dropped support for the plan because it might open the door for a scramble to control the school system that they could lose. A few months later the Senate also held hearings on a constitutional amendment to allow prayer and Bible reading back in schools. But by that point they had trouble finding any religious leaders who would support the cause.74
The following year Time marveled that church leaders now overwhelmingly agreed with the ruling. “Almost every Protestant denomination—ranging from the Seventh-day Adventists to the Episcopal National Council—has gone on record endorsing the decision,” the magazine noted. They were joined by virtually every Jewish organization. And even the Catholic bishops had begun to come around, going from visceral opposition to muted acceptance. Some were still staunchly and vocally opposed, notably the evangelicals and some of the Catholic hardliners, but they were outnumbered.75
Leo Pfeffer was ecstatic. “It is quite probable that the year 1963 will prove to have been the most momentous year not only in American church–state relations but in interreligious relationships as well since the First Amendment was added to the Constitution in 1791,” he wrote. The decisions were so historic because they heralded a true secularism in which, as he put it, “no particular religious faith may any longer impose its culture, its values, and its political and moral standards on the nation as a whole.”76
But if that was the goal, the court was continually surprised by it. The justices, not really clear about what they were doing, had declared a principle of church–state separation and then found themselves confronting the entire panoply of preferential treatment given to Christianity in American life. The result was a constant shock when confronted with challenges they had not foreseen and were unsure how to address.
Two years after the Schempp case the court was brought up short again when a group of pacifists led by Daniel Andrew Seeger claimed exemption from the military draft. None of the litigants belonged to an organized religious body, and none said their objections were explicitly derived from God, though they still avowed some kind of religious sensibility. Federal draft law allowed an exemption only when someone objected to war on the basis of the moral directives of a Supreme Being.
The court was confounded by what to do with the law.
“I have difficulty here,” Warren told his colleagues in conference. The justices did not want to strike down the law. But they also did not want to privilege certain religions over others that did not see a religious being. They decided to fudge the issue.77
In a unanimous opinion written by Clark, the court expanded religious freedom to include political, sociological, and philosophical reasoning. If a heterodox person could articulate a principled objection to war, then that person could be exempt from the draft. Douglas issued a concurring opinion to say the ruling was applicable to an explicitly irreligious person as well, even though that was not necessarily the case with the current plaintiffs and even though the court had not said as much.78
Soon the court heard another case that should have been an obvious application of its jurisprudence but that it was again surprised by. A few years earlier Estelle Griswold, the head of Planned Parenthood in Connecticut, opened a birth-control clinic with the Yale gynecologist C. Lee Buxton. The two women were soon arrested and convicted for violating a Connecticut law that banned contraception. The law was similar to other anticontraception laws around the country, though stricter than the norm. The pair appealed the case all the way to the Supreme Court, demanding that the law be struck down as unconstitutional.79
“I am bothered with this case,” Warren told his colleagues in conference.
“I am not at rest on it,” Black agreed. He thought the policy was bad, but he could not figure out how or whether to strike down the law.
Douglas had no such compunction. He thought the law was an obvious violation of personal rights. The case came “in the radiation of the 1st Amendment,” he said. It had been both passed and sustained as a result of Christian—especially Catholic—sentiment.
“I agree with Bill Douglas,” Clark said. “There is a right to marry, to have a home, and to have children.”
Black regarded the state as able to abolish marriage, so why, he asked Clark, could it not regulate the affairs of a family?
“This is an area where I have a right to be left alone,” Clark responded.80
The resulting 7–2 opinion, written by Douglas, followed Clark’s lead. It overturned the Connecticut law and sought to sum up the jurisprudence of the court. Douglas recounted the constitutional revolution created by the Fourteenth Amendment and the court’s subsequent decisions to incorporate aspects of the Bill of Rights into the Fourteenth Amendment. Many of those decisions went beyond the strict text of the Constitution, assuming that the Bill of Rights created “zones of privacy” where the individual was free from governmental scrutiny. The constitutional purpose, Douglas held, was to shield the individual from governmentally enforced moral sanction that would allow individuals to make free choices.81
Writing in a dissent joined by Stewart, Black rejected what he saw as the loose reasoning of the court. He could see no way to uphold a right to privacy within constitutional law, even if he was opposed to the legislation personally.
But Black’s dissent missed the obvious directionality of the court’s decisions. In a sense, the notion of a right to privacy was the logical terminus of the court’s rights revolution begun by Brandeis and Holmes nearly fifty years earlier. It involved the privatization both of religion and of formerly public moral norms so that individuals could make choices free from governmental pressure. The pluralization of American public life involved the multiplication of religious, moral, and intellectual authorities. That multiplication made it difficult to choose one over another without wading into a contested religious arena. To avoid religious disagreement and entanglement, the court declined to adjudicate between authorities. It left the decision about contraception to the individual in her or his private life. That still left many issues up for grabs and all the tensions of prior rulings in place.