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Ellery's Protest: Lessons from History

Did Liberal, Activist Justices Kick God Out of the Public Schools?

That's what the religious Right and many conservative politicians have been saying for decades. But is it true? In fact, the historical record does not support this charge. The American people themselves removed most religion from the public schools in order to avoid sectarian conflict in a nation that grew ever more religiously diverse. And three out of the four conservative justices on the Court in 1963 agreed that organized prayer and Bible reading violated the First Amendment.

Read this excerpt from Ellery's Protest to find out more. The book provides an extensive discussion.

From Chapter One:

Justice Tom Clark (left) wrote the Court's opinion in the Schempp case. Justice William Brennan, Jr. published a concurring opinion. (Photograph from the Collection of the Supreme Court of the United States.)Schempp has become one of the decisions most often cited by political conservatives and the religious Right as an example of the activist legacy of the Warren Court and as a decision that warrants reversal either by the Court itself or by constitutional amendment. It has remained a target of Christian conservatives and many politicians who have argued that America's public schools have become havens of secularism.

History, though, does not support the constant rhetoric that the Supreme Court tossed God out of the public schools. In fact, as the story told in this book makes clear, the American people themselves accomplished most of that through voluntary agreement among themselves. Schools in the American colonies began as private institutions whose mission was to teach children to read so that they could study Scripture. That mission worked well enough in colonies that boasted mostly homogenous populations of Anglicans and Congregationalists. Children spent most of their day in essentially religious learning, as teachers drilled them in prayer and in the catechism, the Bible, and the Ten Commandments. They used readers and textbooks dominated by religious references, and often their teachers were ministers.

The nation's growing religious diversity changed all of that in a gradual process that stretched over several centuries. A religious curriculum could not last for long under the stress of an increasingly pluralistic nation and the conversion of the schools into public institutions. The Anglican and Congregationalist monopolies melted away into an increasingly diverse society. Scores of new Protestant denominations flourished in the United States—Baptists and Methodists and Presbyterians and others—the result both of immigration and the spontaneous splintering of existing churches into wholly new ones. Unable anymore to teach the dogma of any one denomination, Protestants settled among themselves on a common public school that taught a common Protestantism, centered on Bible reading and recitation of the Lord's Prayer.

Even that compromise was doomed to collapse as the ships docking on American shores brought Roman Catholics, Jews and eventually millions more people of non-Christian persuasions. Riots in Philadelphia heralded religious strife in many large cities as Catholics rebelled against the exposure of their children to the Protestant King James Bible. Many school systems dropped their Protestantism so that people of diverse backgrounds could live together without conflict, and others compromised by allowing religious minorities to excuse their children from participation. Americans themselves negotiated an end of most religion in the public schools because they wanted to do so. They judged that living peaceably with their neighbors was important and that what religion they removed from the schools could be taught at home and in houses of worship. By the early 1960s, what religious practices in the schools were left for the Supreme Court to consider? Many schools still held holiday celebrations. But the most significant remnant of the past, by then practiced in less than half the public schools in the country, was a five-minute devotional exercise at the beginning of the school day—readings from the Protestant King James Bible and recitation of the Lord's Prayer.

The choice of which Bible and which prayers to use in the public schools involved government in the kind of sectarian conflict that the Framers of the First Amendment wished to avoid. Although it was a distant cousin to the sectarian bloodletting in Europe over more than a millennium, Americans suffered more than a century of riots, prejudice, and persecution relating to the choice of religious material in the public schools. Whose version of the Bible should be read? Whose prayers should be recited? If it was school boards and principals making the choice for public school pupils, then the government was in fact endorsing one tradition over another and forcing children of minority religions to either join in the majority's devotionals or to find the strength—unusual in a schoolchild—to resist the gravitational force of peer pressure. The conservative Justice Felix Frankfurter, concurring in McCollum v. Board of Education, wrote that any devotional activity that –sharpens the consciousness of religious differences— among children in the public schools causes –precisely the consequences against which the Constitution was directed when it prohibited the government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages.

An important fact seems lost in the history of the last half-century. Schempp was not a difficult decision—at least not among the eight justices who voted to ban Bible reading and prayer as a violation of the First Amendment. Among them were three of the four conservative justices then sitting on the Court—John Harlan, Tom Clark, and Byron White. Clark himself, a Democrat from Texas who served as U.S. Attorney General under President Truman, was the author of the Court's opinion. Justice Harlan, a conservative intellectual leader on the Court for many years, voted to take prayer and Bible reading out of the schools. His personal notes, on file at the Library of Congress, indicate his strong personal support of the decision. Harlan even joined a concurrence by Arthur Goldberg, a liberal, in which the two of them said that the government had involved itself in divisive sectarian practices. In that judgment Harlan was following the precedent of leading conservatives before him, such as Felix Frankfurter and Robert Jackson, both of whom strongly endorsed church-state separation in earlier cases.

All of these justices, in the decades leading up to and including Schempp, recognized the dangers of excessive religious zeal in the most religiously diverse nation on Earth, one that had dedicated itself to respecting each individual's freedom of conscience. As a matter of law, however, none of the justices could act until plaintiffs brought cases before them, braving anger and retaliations within their own community. Ellery Frank Schempp, sixteen years old, was one of those plaintiffs.

Copyright by Stephen D. Solomon. No use of this material is permitted without prior consent of the author.