THE STRUCTURAL WALL OF SEPARATION AND
THE ERRONEOUS CLAIM OF ANTI-CATHOLIC
DISCRIMINATION
Robert D. Goldstein*
...... 174
INTRODUCTION..................................
177
............................
I. A WALL IS A STRUCTURE
............ 177
A. The Constitution'sSeparation. ........
........... 179
B. The StructuralElements of Separation.............
.........
180
i. Democratic Legitimacy..................
ii. Non-Delegation: Limiting Power, Liberating
182
...............................
Governance
....... 184
iii. Polity and Anti-Balkanization ...........
...... 185
iv. Countervailing Powers in Civil Society ......
v. Rational Deliberation and the Mystery............................187
II. INVOKING EQUAL PROTECTION AND LOWERING THE WALL.. 191
III. JUSTICE THOMAS' MARTYROLOGY: ANTI-CATHOLICISM,
195
195
....................... ......
The Charge of Prejudice
Separation:An Anti-BalkaniZation Technique............................. 198
The Wages of an Established Church........ .............
199
..... 204
The Politics of the UltramontaneCatholic Church......
i. Political Ideology: Establishment vs. Liberal
Democracy..........................
204
ii. Centralization of Papal Authority in Europe ................. 208
iii. Political Relations with Authoritarian and Fascist
Regimes .................................
210
iv. Did Americans Know and Care About Rome?.............215
ANTI-PAPISM, AND ANTI-CLERICALISM....
A.
B.
C.
D.
IV.
...............
VATICAN II AND THE OVERLAPPING CONSENSUS......................
A.
Religious Schools: Civic Education..
226
...................... 229
* Professor Robert D. Goldstein, UCLA School of Law. I would like to thank Sam Bray,
Joshua Dienstag, William Forbath, Clyde Spillenger, and Adam Winkler for their suggestions.
Margaret Manning, Gregory Maestri, Emma Sanford, and David Shelton provided excellent
research assistance, under the always extraordinary supervision of UCLA Librarians Elyse Meyers, Linda O'Connor and Cheryl Fischer. Thanks to Mac Fernandez, Rusty Klibaner and Tal
Grietzer for their assistance in preparing this manuscript. Dean Rachel Moran provided research support. My first teacher of this subject was Harold K. Goldstein.
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B.
[Vol. 13:173
Religious Schools: Liberal Democratic Education..............231
....... 242
...........................................
CONCLUSION
243
APPENDIX: THE JURISDICTIONAL CLAIM................................
INTRODUCTION
"All things visible and invisible," in the words of the Nicene
Creed,' is the domain. There in its visible realm rises the Wall of Separation. On this side, the state. On the far still-visible side, civil society's
institutions of churches, true and false, and less choate manifestations
of the religious. There religious speech, spreading the good news, and
religiously motivated public discourse have always filled the agora, the
forum, the commons, the public square.2
The state, some differentiated regime attending to the day to day
coordination of persons in sustaining communities, is essential to all religions that aspire to an enduring form.' Indeed, the word "secular" etymologically connotes such duration of human time on earth. Believers
and beliefs necessarily rely on institutions that eventually take legal
form in order to organize against false prophets and false messiahs and
their revelations, the heretic, apostate and schismatic, secret books and
secret knowledge, and forecasts of the imminent end of time.4 Only
the millenarian or the suicidal (Reverend Jim Jones or the suicide
bomber) can afford to face eternity without an organized secular world
that stands against the eschatological bent of the religious mind. Only
some such separation into two spheres allows one to begin to make
sense of the religious injunction to "render unto Caesar that which is
I Nicean Council, First Ecumenical Council, Nicene Creed (325) (quoting Colossians 1:16)
available at http://www.usccb.org/beliefs-and-teachings/what-we-believe.
2 In its most consistently endorsed and longest standing religion cases, the Supreme Court
has jealously guarded evangelizing and proselytizing in the public forum. See, e.g., Cantwell v.
Connecticut, 310 U.S. 296 (1940). This strong protection of religious speech in the public
square contrasts with European, especially French, rules protecting a secular public space of
citizenship that derive from the hard fought struggles for disestablishment, including struggles
to establish that public space. See, e.g., CULTURE WARS: SECULAR-CATHOLIC CONFLICT IN
NINETEENTH-CENTURY EUROPE (Christopher Clark & Wolfram Kaiser eds., 2003) (discussing,
inter alia, 19th century struggles involving religious pageants and pilgrimages).
3 Religions differ to the extent they have developed their own specialized departments that
help regulate such day-to-day business, and thus differ in the extent to which they rely on a differentiated state.
4 See Matthew 24:4, 11-12. Legal forms also permit a priestly class to assert doctrinal control against the faithful's beliefs, personal choices and syncretic practices.
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THE STRUCTURAL WALL
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Caesar's and to God that which is God's."
A much greater differentiation, the American Wall of Separation,
resulted from both the complex history of church and state in Europe
and home-grown experiences in North America.' Having recourse to a
metaphor launched by Roger Williams, the founder of one of the thirteen colonies, our third President, Jefferson, who importantly characterized so much about America, named it. The U.S. Constitution instantiated it and the First Amendment reaffirmed it as a positive right.
This essay focuses on the American Wall of Separation and consists of two very different parts joined by an interme.Zo, all premised on
a recognition that the separation of church and state entails fundamental structural principles that organize a liberal democratic regime. Section I discusses the U.S. Constitution of 1789 and the First Amendment and identifies five key structural elements of its Wall of
s Matthew 22:21.
6 The recent emphasis concerning American exceptionalism has the potential salutary effect of insisting upon a methodological necessity: to look beyond the shores of America. Not
an article of faith or an identity, American exceptionalism necessarily poses an historical inquiry-what can be learned about America from other, especially European, comparisons; it insists that no historical or originalist inquiry can be complete without a comparative perspective.
But qf Richard Lowry & Ramesh Ponnuru, An ExceptionalDebate: The Obama Administration'sAssault on American Identity, NAT'L REV., Mar. 8, 2010, at 31 (treating American exceptionalism not
as a historical analytic question but a fact of identity).
Some accounts of the Establishment Clause would confine the historical setting in which
it is to be understood to the American colonial experience alone. Those accounts adopt a
pleasant narrative in which, outside of seventeenth century New England persecutions of heretics, the primary, though not exclusive, story was one of growing toleration due to the plurality
of sects. They would remove from this historical trajectory not only episodic religious persecution in the United States, but, equally important, the exceedingly hard and bitterly fought political struggles in Europe against established churches for disestablishment, and the ensuing
Kulturkampf These European traumas led to massive immigration that implanted this experience in the historical consciousness of the people of the United States (at the founding of the
colonies and the pre-Constitutional years, as well as preceding the adoption of the Fourteenth
Amendment and then during the period of absorption of the First Amendment in the Due
Process Clause). See Palko v. Connecticut, 302 U.S. 319 (1937); Everson v. Bd. of Educ. of
Ewing Twp., 330 U.S. 1 (1947). Among other matters, this produced a broad awareness (as
exemplified in the Federalist Papers) of the impact of religious wars on the stability of nation
states.
As the second justice Harlan wrote about the meaning of liberty and due process: "The
balance of which I speak is the balance struck by this country, having regard to what history
teaches are the traditions from which it developed as well as the traditions from which it broke."
Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting) (emphasis added).
7 See, e.g., THE DECLARATION OF INDEPENDENCE (U.S. 1776); THOMAS JEFFERSON, NOTES
ON THE STATE OF VIRGINIA (1810).
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Separation: democratic legitimacy; non-delegation: limiting power, liberating governance; polity and an anti-balkanization principle; countervailing powers in civil society; and rational deliberation. The intermeZo,
Section II, identifies recent moves by some commentators and justices
to offer an account that minimizes these structural features in favor of
alternatives, especially equal protection concerns that emphasize formal
neutrality or instead discriminatory intent and effect. Section III begins
with Justice Thomas' plurality opinion in Mitchell v. Helms,' facilitating
direct aid to religious schools by proposing a wall-lowering equalprotection-inflected interpretation of the Establishment Clause, while
linking some elements of a structural understanding of that clause, as it
limits aid to religious schools, to anti-Catholic animus. Section III rejects this historical claim that the politics and doctrine implementing
the American Wall of Separation originate primarily in anti-Catholic animus (a claim made by Professor Hamburger for example). This claim
mistakenly characterizes much of the evidence as irrational prejudice
against individuals and their religion, rather than as a popular constitutional commitment to liberal democracy; that commitment involved
opposition to the goals of the ultramontane Church, which linked its
establishment and authority as the one true church to its anti-liberal and
anti-democratic politics. Though the two sections involve quite different enterprises, Section I complements Section III because it provides
the basis or baseline for an answer to the Church's claim of being unfairly and discriminatorily treated, which it made in response to its disestablishment in Europe (including the transfer of primary responsibility for education to the state) and the denial of religious aid to its school
system in the U.S. The answer Section I affords is: what may be experienced as hostile treatment is the impact of a liberal constitutional
structure of separation, which affects different religions differently. In
contrast to this emphasis on the ultramontane Church's anti-liberal and
anti-democratic politics, a coda, Section IV, traces the Catholic
Church's acceptance in Vatican II of liberal democracy and a separation
of church and state that it entails. This identifies the historical context
in which the Supreme Court eventually authorized aid to religious
schools; by the time of Helms, some justices could believe that many religious schools can, consistent with their free exercise of religion, offer
secular value not only in providing a civic but also a liberal democratic
8 530 U.S. 793 (2000).
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THE STRUCTURAL WALL
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education. An Appendix, pertinent to Section I, criticizes Justice
Thomas' federal-jurisdictional view of the Establishment Clause, which
would empty the Establishment Clause of substantive meaning.
I.
A.
A WALL Is A STRUCTURE
The Constitution'sSeparation
The Constitution of 1789 instantiated the separation of church
and state by granting no powers to Congress, and by implication no
powers to the Executive or Judiciary,' regarding religion. The Constitution's pervading silence provided no affirmative role for religion in
governance. It omitted any invocation or acknowledgement of God in
the Preamble. It provided no role for religion or the clergy in the organs of government. While the Constitution's anti-aristocratic thrust is
often noted, for example in the prohibition of titles of nobility and the
minimal requirements for serving in Congress or as President,'o it
equally merits attention that the Framers provided no organs of representation for clergy or churches, though state establishments there
were; and the methods of election and representation precluded that.
Comparison with representation in the ancien regime of France, our closest ally in our Revolution (or in England, our enemy) is instructive: in
1787 the French clergy as the first estate found representation administratively and in the parliamentary Estates General." The U.S. Constitution went much further than omitting formal representation of the clergy: the no-religious test clause opened up national governance to all
persons regardless of faith and removed restrictions that would place
any part of the government in the hands of any particular religious persuasion.12 Furthermore, no Article III jurisdiction was granted over (or
9 While residual common law torts survived under the diversity jurisdiction in 1789, criminal laws regarding blasphemy, for example, would have had to depend on congressional power.
10See AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 70-72 (2005) (arguing
that high presidential age limits reduced the likelihood of elected dynasties).
1 Cfq 1 JOHN MCMANNERS, CHURCH AND SOCIETY IN EIGHTEENTH CENTURY FRANCE:
THE CLERICAL ESTABLISHMENT AND ITS SOCIAL RAMIFICATIONS (1998) (discussing the interconnectedness of church and state in France). Further, Great Britain's House of Lords was
comprised of the Lords Spiritual and Temporal, thus including representation by the bishops of
the established Church of England.
12 See, e.g., Daniel Dreisbach, Defining and Testing the Prohibitionson Reigious Establishmentsin the
Early Republic, in No ESTABLISHMENT OF RELIGION: AMERICA'S ORIGINAL CONTRIBUTION TO
RELIGIOUS LIBERTY 252, 254-57 (T. Jeremy Gunn & John Witte, Jr. eds.) (2012) (hereinafter
Gunn & Witte).
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[Vol.
other courts created for) subjects traditionally exercised by ecclesiastical
courts.
The Federalists explained that this non-delegation sufficed in their
response to the demands of the Anti-Federalists: no Bill of Rights was
needed because no power was granted. Madison reasonably feared that
any specification would imply a power where none existed, but he
yielded. The non-delegation was followed within several years by the
First Amendment's affirmative specification of no power regarding
laws respecting an establishment. Churches, especially the Virginia
Baptists, were key in insisting upon such an amendment during the ratification debates of 1787-88 and in electing to Congress Madison, the
co-author and chief political leader of the Virginia Wall of Separation,
including its no-aid principle. As a representative he would lead Congress in proposing the Bill of Rights. In 1791, the Establishment
Clause gave positive expression to the Wall of Separation principle.
In recent years, Justice Thomas has suggested that the Establishment Clause is without substantive content, constituting only a jurisdictional or federalism provision designed solely to protect state establishments from Federal regulation or preemption, apparently a gift to
New England Congregationalists from antiestablishment Virginia Baptists.13
While mistaken on his constricted interpretation of the Establishment Clause, I believe, Thomas is correct when he characterizes it as a
structural provision.14
See infra APPENDIX at p. 243.
14 Carl Esbeck has long been arguing cogently for a deeper structural reading of the Establishment Clause, and has clearly explained certain of its doctrinal aspects in light of this. See Carl
H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV.
1 (1998); Carl H. Esbeck, The Establishment Clause as a Structural Restraint: Validations and Ramifications, 18 J.L. & POL. 445 (2002).
For other descriptions of the Establishment Clause as implementing a structural principle,
13
see JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 94 (1980)
("[C]hurch and the government gave each other breathing space: the provision thus performs a
structural or separation of powers function."); Christopher L. Eisgruber, Madison's IWager: Religious Libery in the Constitutional Order, 89 Nw. U. L. REV. 347, 378 (1995) ("The constitutional
order treats religious liberty principally by structural means . . . ."); Mary Ann Glendon & Raul
F. Yanes, StructuralFree Exenise, 90 MICH. L. REV. 477 (1991) (offering a structural approach but
focusing primarily on associational autonomy); Abner S. Greene, The Political Balance of the Religion Clauses, 102 YALE L.J. 1611 (1993); Ira C. Lupu, To Control Faction and Protect Liberty: A General Theory of the Re/igion Clauses, 7 J. CONTEMP. LEGAL ISSUES 357, 361 (1996) (discussing effectiveness of "structural arrangements" at federal, state and local levels); Ira C. Lupu, The Lingening
Death ofSeparationism, 62 GEO. WASH. L. REV. 230, 235 n. 31 (1993) [hereinafter Lupu, The Lin-
THE STRUCTURAL WALL
2014]
B.
179
The StructuralElements of Separation
Like the principle of federalism dividing spheres of authority in the
nation vertically, and the principle of separation of powers dividing
powers horizontally among the branches of government, the Wall of
Separation separates the religious and the state into separate spheres.
These three structural principles create high and impregnable walls" in
some matters but more open passages negotiated and maintained
through balancing of interests in others. These three structural principles, constructed and implemented over time by the political branches,
are superintended by the Supreme Court.
Such structural principles are designed, it is often said, to protect
liberty and autonomy. Thus, most persons ascribe to the religion clauses of the First Amendment a core principle of freedom of conscience
or religious liberty. But even when conceived as a means of protecting
liberty, a structural principle cannot be reduced to a principle of liberty;
it must be enforced structurally to have, over the long-haul, the intended liberty-enhancing effect. Furthermore, even structural principles
that protect liberty serve equally (or in certain contexts more) important
other goals: to further democracy, to control faction, to promote good
governance, and to aid rational thought and deliberation.
The link between separation of powers and separation of church
and state is not word play: both are part of the liberal strategy of building walls between different social spheres. As the political theorist Michael Walzer explains, such walls enhance the development of different
spheres of society and the development of the virtues of each sphere;
they enhance liberty within each sphere; and they protect a complex
equality by preventing power in one sphere from enhancing the power
of some in another. 6 He writes:
gering Death]; Kathleen M. Sullivan, Rehgion and LiberalDemocray, 59 U. CHI. L. REv. 195 (1992)
(providing the best succinct statement of the Establishment Clause as a political settlement); f
AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998) (illuminating wonderfully a structural reading of the Bill of Rights, even as he minimizes the depth of the
structural nature of the Establishment Clause).
15 See Printz v. United States, 521 U.S. 898 (1997) (no balancing in separation of powers
case); but c Michael Walzer, Liberalism and the Art of Separation, in THINKING POLITICALLY:
ESSAYS IN POLITICAL THEORY 64-66 (David Miller ed., 2007) [hereinafter Walzer, The Art of
Separation] (arguing that outside the realm of specifically defined rights, the maintenance of walls
and separations is a democratic not judicial task).
16 MICHAEL WALZER, SPHERES OF JUSTICE: A DEFENSE OF PLURALISM AND EQUALITY
(1983).
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.
[Vol. 13:173
. a certain way of drawing the map of the social
and political world. The old, preiberal map showed a largely undifferentiated land mass, with rivers and mountains, cities and towns,
but no borders. "Every man is a piece of the continent," as John
Donne wrote-and the continent was all of a piece. Society was
conceived as an organic and integrated whole. It might be viewed
under the aspect of religion, or politics, or economy, or family, but
all these interpenetrated one another and constituted a single reality.
Church and state, church-state and university, civil society and political community, dynasty and government, office and property, public life and private life, home and shop: each pair was . . . two-inone, inseparable. Confronting this world, liberal theorists preached
and practiced an art of separation. They drew lines, marked off different realms and created the sociopolitical map with which we are
still familiar .... Liberalism is a world of walls, and each one creates
a new liberty.' 7
The cartographer of this new regime? "The state .
.
. is the agent
of separation and the defender of ... the social map."
The 1787 Constitution and 1791 Establishment and Free Exercise
Clauses draw the map, establishing a boundary between church and
state. In doing so they have come to advance" at least five important
structural concerns that separate religion and any ecclesiastical power
from the constitutionally-ordained United States and its branches of
government.
i.
Democratic Legitimacy
Separation advances the democraic legitimacy of the state, anchoring authority only in the consent of the governed and eliminating any
constitutional basis for the government's claim of divine sponsorship
or divine sovereignty.2 0 Those kinds of claims can only be made as the
personal speech of political leaders for which opinion they may be
17
Walzer, The Art of Separadon,supra note 15, at 53.
18 Id. at 64.
19 The five structural concerns have developed as the nation has constructed its understanding of the Constitution from text, structure, original understandings, normative commitments,
and growing political experience. See infra APPENDIX T 5, at 245.
20 The permissible scope of prayer opening legislative sessions (to "lend gravity," "reflect
upon shared ideals and common ends" and "acknowledge" religious heritage) does not extend
to making claims of divine sponsorship. See Town of Greece v. Galloway, 134 S. Ct. 1623
(2014).
2014]
THE STRUCTURAL WALL
181
judged, on a non-constitutional basis, by the electorate and God. 2' By
contrast, the Royal Coat of Arms of King George III, representing his
22
sovereign status, read "Dieu et mon Drvif>
which literally means "God
and my right," implying, whatever the exact translation, "by divine
right." When King Henry VIII separated the Church of England from
the Catholic Church, he did not neglect to make himself the head of his
Church, thus augmenting the motto's claim. Similarly, the Preamble of
the Constitution of the Confederate States of the United States, seeking
to insure "justice, insure domestic tranquility, and secure the blessings
of liberty" invoked, to no avail, "the favor and guidance of Almighty
God."2 3 By contrast, the U.S. President does not serve as the head of
an established church2 4 and his legitimacy, and that of his political program, derives only from the voters' appraisal of his leadership. An added benefit is that presidents cannot confer religious charismatic authority upon their offspring; and presidential dynastic succession has, except
in two instances, been avoided.25
The most important benefit arises in war. When they allocated
war-declaring and military-regulating powers to Congress, assigned
21 In contrast, reported remarks of Justice Scalia suggest that, in his reported view, the
state's claim of power to command obedience and to impose the death penalty derives from its
exercising power under divine providence, as recognized in the various invocations of God in
the nation's motto, the Supreme Court's call to order, etc. See Robert A. Connor, Justice Scalia
and the Death Penalty, THE TRUTH WILL MAKE You FREE: REFLECTIONS ON THE TEACHING OF
POPE JOHN PAUL II AND BENEDICT XVI (Nov. 18, 2009, 10:13 AM), http://robertaconnor.blo
gspot.com/2009/11/justice-scalia-and-death-penalty.html (discussing the adapted remarks by
Justice Scalia at a conference sponsored by the Pew Forum on Religion and Public Life at the
University of Chicago Divinity School in May 2002).
22 King Richard I used the motto in 1198 and it was formally adopted as a royal motto by
Henry VI. See Mandy Barrow, Motto and Royal Coat ofArms, PROJECT BRITAIN: BRITISH LIFE &
CULTURE, http://www.woodlands-junior.kent.sch.uk/customs/questions/motto.html (last visited June 24, 2011).
23 CONST. OF THE CONFEDERATE STATES OF AMERICA pmbl., reprintedin 1 JOURNAL OF THE
CONGRESS OF THE CONFEDERATE STATES OF AMERICA, 1861-1865, at 909 (1904). See WILLIAM
LEE MILLER, THE FIRST LIBERTY: AMERICA'S FOUNDATION IN RELIGIOUS FREEDOM 98-99
(2003).
24 It would be possible for a president to be the head of a non-established church such as
the Mormon Church,
25 The Framers' concern about dynastic succession has been interestingly discussed by Amar. AMAR, supra note 10, at 70-72. Kevin Phillips does not treat one of these two cases, John
Quincy Adams, as a case of succession because it involved the delay of 24 years between father
and son and advancement by a different political party (and one might add the son's vast independent governmental experience in multiple administrations as a Senator and in a wide variety
of executive
branch positions). KEVIN PHILLIPS, AMERICAN DYNASTY:
FORTUNE, AND THE POLITICS OF DECEIT IN THE HOUSE OF BUSH 17 (2004).
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commander-in-chief powers to the Executive, and subordinated the
military to the civil, the Framers also stripped the commander-in-chief
of any constitutionally-legitimized claim that God stands on the side of
our military, our war-aims, and our soldiers' sacrificeS26-an extraordinary advance in human history. Long before this, the religious architect
of separation, Roger Williams, countered the Puritans' claim to be
building a "city on a hill," a new Jerusalem, with its implied invocation
of God's Old Testament endorsement of the Israelites' military exploits
and land claims; he instead insisted that the Bible recorded a unique
event that did not presage the American destiny. 27
ii.
Non-Delegation: Limiting Power, Liberating Governance
By operating as a side constraint on the powers of the state, the
Wall of Separation takes off the political agenda religious beliefs, practices and aid, an especially significant achievement in a country with a
multiplicity of religions.28 This frees and energizes politics to focus on
the secular world and on the material interests of citizens by liberating
politics (even as it constrains power) from a range of disputes about ultimate ends among comprehensive world views that can stall politics,
clog processes and prevent peaceful political resolution of pressing collective problems. As Madison noted in The FederalistNo. 10, religious
opinions, far from leading men to "co-operate for their common
good," dispose them "to vex and oppress each other." 29 The best re26 Concern about religious proselytizing at the Air Force Academy has focused on the free
exercise concern about pressures for religious conformity on Catholics and others. Structurally,
the concern should be whether military leaders are encouraged to believe they are serving their
God rather than civilian leaders constrained by law. See generally MILITARY RELIGIOUS FREEDOM
FOUND, www.militaryreligiousfreedom.org (last visited Dec. 1, 2014).
27 MILLER, supra note 23, at 181. Even Lincoln's personal account in his Second Inaugural
asserts at most, not endorsement of the North's war aims, but the scourge of the Union at
God's hand. See generally David Little, Roger Williams and the PuritanBackground of the Establishment
Clause, in Gunn & Witte, supra note 12, 100, 123 n. 72.
28 See, e.g., Michael W. McConnell, Whby is Rekgious Liberty the 'FirstFreedom?" 21 CARDOzO L.
REv. 1243, 1248 (2000) ("Nowhere is the connection between church-state separation and the
more general idea of [limited] liberal government so clear as in the writings ofJohn Locke").
29 THE FEDERALIST No. 10, at 47 (James Madison) (Clinton Rossiter ed., 1961). See also
Lemon v. Kurtzman, 403 U.S. 602, 622-23 (1971) (as "political division along religious lines was
one of the principal evils against which the First Amendment was intended to protect," the Establishment Clause eliminates spoils of religious aid and other religious-based goods from being
the object of political divisions).
Similarly, in order to preserve national political, and commercial unity, the Dormant
Commerce Clause (and Privileges and Immunities Clause) reduces the resort by intrastate
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THE STRUCTURAL WALL
183
cent statement of this very important achievement is Stephen Holmes'
Passionsand Constraint: On the Theof of Liberal Democray,30 which analyzes
the contributions of both non-delegation and gag-order constraints,
analogous to the Establishment Clause's no-aid and no-endorsement
principles, as crucial components of effective democratic governance.'
Effective energetic governance is, as Madison observed,32 essential to
maintaining the legitimacy of a democracy.
This constraint cools politics just as, to reference George Washington describing the advantages of separation of powers and bicameralism, a saucer cools hot tea." Passion-cooling structural limits are the
heart of the Madisonian constitution. When it comes to religion, however, such limits put emotional demands on citizens which regularly
strain their mature political capacities. Instead of being content to collaborate (and identify) with their fellow citizens to govern their collective secular undertakings, they instead want validation of their beliefs
and commitments by a charismatic authority. Such strain leads to
complaints about our denatured politics stripped of certain normative
values that supply a meaning to the citizen's and community's life
(which freely chosen religion in civil society seems at times incapable of
providing). Dispute over this limit on politics is the core of the antiliberal critique of liberalism.3 4
commercial interests to legislation to obtain benefits as against their out-of-state rivals. The
Dormant Commerce Clause ups the cost and reduces the value of statutes that discriminate on
an in-state out-of-state status by making them vulnerable to challenge. Similarly, the Court has
explained that strict scrutiny against racial classifications prevents a racial spoils system that
splits the American identity and polity into races.
30 STEPHEN
HOLMES, PASSIONS
AND
CONSTRAINT:
ON THE THEORY OF
LIBERAL
DEMOCRACY 206-07, 231 (1995). See also JON ELSTER, ULYSSES UNBOUND: STUDIES IN
RATIONALITY, PRECOMMITMENT, AND CONSTRAINTS (2000) (discussing the role of constraints
in government).
31 See, e.g., HOLMES, supra note 30, at 206-07, 231.
32 See THE FEDERALIST NO. 37, at 194 (ames Madison) (Clinton Rossiter ed., 1961) ("Energy in government is essential to that security against external and internal danger and to that
prompt and salutary execution of the laws which enter into the very definition of good government.').
33George Washington was describing the Senate vis-:-vis the People's House of Representatives. See MONCURE DANIEL CONWAY, OMIrrED CHAPTERS OF HISTORY DISCLOSED IN
THE LIFE AND PAPERS OF EDMUND RANDOLPH 91 (1888).
34
See Stephen Holmes, The Permanent Structure ofAniliberal Thought, in LIBERALISM AND THE
MORAL LIFE 227 (Nancy L. Rosenblum ed., 1989); MARK LILLA, THE STILLBORN GOD:
RELIGION, POLITICS, AND THE MODERN WEST (2007); Jose Casanova, The Stillborn God: The
Great Separation, THE IMMANENT FRAME: SECULARISM, RELIGION, AND THE PUBLIC SPHERE
(Dec. 7, 2007, 4:38 PM), http://blogs.ssrc.org/tif/2007/12/07/the-great-separation/
(discuss-
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[Vol. 13:173
Polity and Anti-Balkanization
The Wall helps protect the American polity from political division
along religious lines. 35 It communicates that, in politics, we voters are
Americans, not members of this or that sect, and our representatives
represent us all and not one religion or another. The structural Wall of
Separation is high in these matters because the polity is so ready to split
along such lines, with this or that district or politician (or justice) being
readily identifiable as Catholic, Protestant, Jew, Muslim, etc.
By reducing the value of legislation for one or another or all religious groups,
moreover, the Wall reduces the competition among religious groups for
political advantage. It assures religions that they need not organize as
such to protect their religious institutions or seek advantage. Without
religious spoils to reap, political investment in such organizing becomes
ing Lilla's work).
35 See Lemon, 403 U.S. at 622 ("[P]olitical division along religious lines was one of the principal evils against which the First Amendment was intended to protect."). For Justice Breyer's
recent focus on this issue, see Agostini v. Felton, 521 U.S. 203, 240-41 (1997) (dissenting opinion)
(identifying divisiveness as a prudential factor in Establishment Clause cases); Zelman v. SimmonsHarris, 536 U.S. 639, 717, 727-28 (2002) (Breyer, J., dissenting); Van Orden v. Pery, 545 U.S. 677,
698 (2005) (Breyer, J., concurring in the judgment). For Justice Kagan's recent discussion, see
Town of Greece v. Galloway, 134 S. Ct. 1811, 1841 (2014) (Kagan, J. dissenting). See generally
supra note 29; Lupu, supra note 14. For an unsympathetic review of the case law and rejection
of doctrine that would require judges to identify potential divisiveness, see Richard W. Garnett,
Reigion, Division, and the FirstAmendment, 94 GEO. L.J. 1667, 1670 (2006) (helpfully collecting the
justices' discussion of divisiveness).
Some justices have taken the benign view that such cleavages are a thing of the past and
need not drive constitutional concerns. Upholding a state tax exemption for private school parents in Mueller v. Allen, the Court remarked, "At this point in the 20th century we are quite far
removed from the dangers that prompted the Framers to include the establishment clause in
the Bill of Rights... . The risk of ... deep political division along religious lines . . . is remote. .
. ." 463 U.S. 388, 400 (1983) (quoting Wolman v. Walter, 433 U.S. 229, 263 (1977) (Powell, J.,
concurring in part, concurring in judgment in part, and dissenting in part).
The benign view's naivet6 is apparent as it was advanced less than 40 years since the end
of World War II and a few years before the Bosnian crisis, 9/11, the Iraq War, other terrorist
attacks in Europe and the United States, and, on a small scale, the Park51 Community Center
controversy and the threat of a Florida preacher to burn the Quran.
Some commentators attribute to separationists the claim that religion is particularly responsible for political violence, as in the Thirty Years War; and, in defense of religion, they note
that 20th century secular governments have been responsible for far more bloodshed. The
claim is not that religion and religious difference uniquely cause violence but that religion in
league with state power poses exceptional risks of coercion and violence because of divisiveness
to the polity and the totalism of religious claims (appealing as they do to a higher and suprahuman scale of value than temporal values) when joined to or exploited by state power.
36See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687 (1994).
THE STRUCTURAL WALL
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riskier, less likely to pay off. John Kennedy conveyed all this to the
American public in the 1960 election when he made clear (to a convocation of Baptist ministers) that no religious spoils would be gained
through his election.
In protecting the polity from division and competition along religious lines, through the Constitution's anti-Balkanization techniques
discussed further in Section III, religious groups, majority and minority,
are also protected from the excitement of hatred and violence against
them." Justice Scalia calls political divisions along cleavages of race
"play[ing] with fire."3 9 It has long been thus with religion.
iv.
Countervailing Powers in Civil Society
Structural provisions check government by creating or conserving
countervailing centers of power. "Ambition must be made to counteract ambition" in the separated spheres of national power, writes Madison." The states, preserved and protected in the federal scheme, counter federal power and compete for the affection of the people.
The Constitution also protects private associations in civil society
with the same effect (as well as for reasons of individual liberty).4' It
marks out the Press as a private institution for protection. Via the Free
Speech Clause, the Supreme Court protects voluntary associations, limiting state efforts to regulate membership and leadership.42 It has similarly recognized the institutional freedom of universities to determine
"who may teach, what may be taught, how it shall be taught, and who
may be admitted to study." 43 Hints of protection from state interference for professions and their normative commitments may also be
37 Senator John F. Kennedy, Address to the Greater Houston Ministerial Association
(Sept. 12,1960) (transcript available at http://www.jfklibrary.org/Asset-Viewer/ALL6YEB
JMEKYGMCntnSCvg.aspx).
38There are many regimes of religious toleration that do not adopt an anti-balkanization
principle. See generally MICHAEL WALZER, ON TOLERATION (1999).
39 City of Richmond v. J.A. Croson Co., 488 U.S. 469, 527 (1989) (Scalia, J., concurring in
the judgment).
4 THE FEDERALIST No. 51, at 290 (James Madison) (Clinton Rossiter ed., 1961).
41 See generally NANCY L. ROSENBLUM, MEMBERSHIP & MORALS: THE PERSONAL USES OF
PLURALISM IN AMERICA (1998).
42 See Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000); see also Hurley v. Irish-American
Gay, Lesbian and Bisexual Grp. of Boston, 515 U.S. 557 (1995).
43 Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (quoting CONFERENCE OF
REPRESENTATIVES OF THE UNIV. OF CAPE TOWN AND THE UNIV. OF WITWATERSRAND, THE
OPEN UNIVERSITIES IN SouTH AFRICA 10-12 (1957)).
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found." Under the Due Process Clause, the Court has recognized the
family as an intimate association with a constitutional status that enjoys
some protection from, and offers resistance to, state regulation. As the
Court has observed, the family prepares children for normative "obligations the state can neither supply nor hinder."4 5 Accordingly, the Court
has protected family formation from the coercive prohibitions of the
state, in Giswold,46 Loving, 47 and Eisenstadt,48 regardless of whether the
prohibitions are supported or opposed by church doctrine or "traditional morality."
But long before courts developed these doctrines protecting other
voluntary associations in civil society, the Constitution specifically and
specially sheltered church autonomy and protected from government
regulation churches' separate associational status, all on the civil-society
side of the Wall of Separation. 4 9 Non-established churches are among
those private associations to which citizens are most strongly attached
as competing centers of communal life and as generative centers of values. American history attests to the vibrancy and strength of churches 0
and their ability to develop norms that resist existing law and motivate
and mobilize democratic citizens to instantiate those norms via politics.s" This principle of institutional autonomy is that component of the
44 See Rust v. Sullivan, 500 U.S. 173 (1991); Legal Servs. Corp. v. Velazquez, 531 U.S. 533
(2001); Robert D. Goldstein, Reading Casey: Structuring the Woman's Dedonmaking Process, 4 WM.
& MARY BILL RTs. J. 787, 833 (1996).
45 Prince v. Massachusetts, 321 U.S. 158, 166 (1944). See generally Meyer v. Nebraska, 262
U.S. 390 (1923). The recognition of a normative world beyond the competence of the liberal
state protects church autonomy.
46 Griswold v. Connecticut, 381 U.S. 479 (1965).
47 Loving v. Virginia, 388 U.S. 1 (1967).
48 Eisenstadt v. Baird, 405 U.S. 438 (1972).
49 Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1132 (1991) ("A
close look at the Bill reveals structural ideas tightly interconnected with language of rights;
states' rights and majority rights alongside individual and minority rights; and protection of various intermediate associations-church, militia, and jury-designed to create an educated and virtuous electorate"); Glendon & Yanes, supra note 14, at 542-49.
50 Comparing religious life before and after the revolution and separation, Madison, late in
life, noted "the number, the industry, and the morality of the Priesthood, and the devotion of
the people have been manifestly increased by the total separation of the Church from the
State." Ralph Ketcham, James Madison, Thomas Jefferson, and the Meaning of 'Estabshment of Redgion" in Eighteenth Centuy Virginia, in Gunn & Witte, supra note 12, at 158, 177 (quoting Selected
Writings of James Madison (Ralph Ketcham, ed.) 304-06 (2006)).
51 JOHN T. NOONAN, JR., THE LusTRE OF OUR COUNTRY: THE AMERICAN EXPERIENCE OF
RELIGIOUS FREEDOM (1988) wonderfully identifies such religiously infused public debates at
the core of American political history: abolitionism, prohibition, and the Civil Rights Move-
THE STRUCTURAL WALL
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187
Wall that today most appeals to religious institutions. Whether hierarchically or congregationally organized, churches remain free to choose
their leaders or remain leaderless, control property they have freely acquired from their congregants, address schism and apostasy provided
there is a right of exit for congregants," sacralize ritual practice, and
generate their own norms for congregants (subject to limits on incidental economic, charitable, and educational activities)."
Protecting associational liberty serves to assure strong and vital
countervailing, power-checking associations in civil society. But the
evangelical Christian opposition to establishments, beginning in the
colonies with Roger Williams,54 had a different goal that continues to
achieve a complementary result: to protect religion and religious practice from the stain and corruption of involvement with the state. In
doing so, it restrains the state from diluting the faith and norms of a
demarcated sacred space. The Wall protects religious sanctity.
v.
Rational Deliberation and the Mystery
Structural provisions can enhance rational deliberation within government and in the polity. Separation of powers promotes deliberation,
encouraging prospective empirical planning via general rules, while
forcing consideration of the different elements of law-making, lawenforcing, and adjudication, and fostering the development of specialized institutions with capacities for each of these functions. Mechanisms within federalism can enhance efficient allocation of decisionmaking functions at the appropriate level of government, some deci-
ment of the 1960s. See also JOHN G. WEST, JR., THE POLITICS OF REVELATION and REASON:
RELIGION AND CIVIC LIFE INTHE NEW NATION (1996) (focusing on earlier struggles including
religious opposition to the removal of the Cherokee Nation from Georgia).
52The United States began and developed as a result of persons exercising a right of exit.
In a liberal society, the right of voluntary exit must always be the basic law of associations, including religious institutions. The same is true for marriage contracts as John Milton explained
early in the Reformation in JOHN MILTON, THE DOCTRINE AND DISCIPLINE OF DIVORCE
(1643) (seeking to free both sexes from the bondage of Canon Law). Nor may apostasy be a
crime or a tort, Deuteronomy 13:6-10 notwithstanding.
53 See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694
(2012).
54 Many others carried his program forward, including Samuel Davies, Issac Backus and
John Leland. Williams in turn was carrying forward a long Christian tradition in recognizing
two spheres of reality and in seeking to protect the sanctity of the religious through separation.
See John Witte, Jr., Facts and Fictions About the History of Separation of Church and State, 48 J.
CHURCH & ST. 15, 22-23 (2006).
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sions best made to respond to local variation and others made nationally to respond to needs for uniformity, collective action, and internalization of externalities. Such rules of division, moreover, can enhance accountability by clarifying lines of authority and responsibility.ss
In protecting a religious sphere beyond the state, the religion
clauses inscribe a division between "two orders of discourse and of reality."" One involves what is known through faith and revelation of
the invisible, ineffable, and transcendent;" the other involves what is
known empirically through scientific inquiry about the natural world
and validated through collective deliberation about the communal
world.
This constitutionally-recognized divide serves not only to protect
individual liberty, by limiting the range of reasons that can authorize intrusions on it, but also to protect church autonomy. The rule of neutral
principles in evaluating internal church disputes depends in significant
degree on the principle that the liberal state lacks theological competence to judge doctrinal matters. The leading expert at Vatican II on
church-state relations, John Courtney Murray, recognized this epistemological divide when he identified two claims that entitle the Catholic
Church to autonomy from state regulation: a claim to freedom arising
from the dignity of her members' free conscience and her claim as the
one true church. He explains,
[O]nly that title to freedom may be urged which the powers of the
secular order are able, and are obliged, to recognize. This title is the
basic truth about the dignity of the human person ....
The Church would abdicate her transcendence, were she to present
her theological title to freedom in society tas the one true church]
for judgment by any organs of secular government. As has been
said, the Declaration [On Religious Freedom of Vatican II] itself
makes sufficiently clear that secular government today .
.
. is not
empowered to make judgments de mentis in matters of theological
55
See New York v. United States, 505 U.S. 144 (1992).
John Courtney Murray, The Issue of Churnh and State at Vadcan Counill, 27 THEOLOGICAL
STUD. 580, 592 (1966) [hereinafter Murray, Issue of Churh and State]; Second Vatican Council,
Pope Paul VI, Pastoral Constitution on the Church in the Modem World (Gaudium et Spes)
$ 59 (Dec. 7, 1965) available at http://www.vatican.va/archive/hist-councils/ii vatican-council
/documents/vat-iicons_19651207gaudium-et-spes-en.html [hereinafter Gaudium et Spes]
("This Sacred Synod, therefore, recalling the teaching of the first Vatican Council, declares that
there are 'two orders of knowledge' which are distinct, namely faith and reason. . .
57 See Greene, supra note 14, 1616-18, nn. 23-26.
56
2014]
THE STRUCTURAL WALL
189
truth. At the same time, the due autonomy of the secular order
would be violated, since this autonomy requires that the powers
which rule the secular order should make judgments on the secular
grounds proper to that order-the truth which is its foundation, the
justice which is its goal, the love or civic friendship which is its motivating and unifying force, the freedom which is at once its goal and
its method of pursuing the goal of justice. Hence the autonomy of
the secular order requires that, within this order . . . the Church
should present her claim to freedom on these secular grounds ... .
Of equal importance, this constitutionally-recognized divide also
supports a regime of public reason in politics." The democratic and
deliberative decision-making structure of the Constitution and the First
Amendment's truth-seeking methods always permit deliberation on another day; there can be no effective conversation-stopping appeal to a
final revelatory authority. Accordingly, religions get no protection from
heresy or apostasy and gain no traction with the claim that falsehood
has no rights; and as a result legal doctrine classifies religious beliefs as
opinion. 0 Furthermore, government decision-makers must have a pre58 Murray, Issue of Church and State, supra note 56, at 590-91.
59See generally JOHN RAWLS, POLITICAL LIBERALISM (1996) (discussing the overlapping consensus); JOHN RAWLS, The Idea of Public Reason Revisited, in THE LAW OF PEOPLES (1999). The
concept of public reason is, inter alia, political and sociological and aptly describes the practices
of liberal democracies. Jiirgen Habermas largely accepts Rawls' account. See Jirgen Habermas,
The Political The Rational Meaning ofa.Quesionable Inheritance of Polidial Theology, in THE POWER OF
RELIGION IN THE PUBLIC SPHERE (Eduardo Mendieta & Jonathan VanAntwerpen eds., 2011);
f
RICHARD JOHN NEUHAUS, THE NAKED PUBLIC SPHERE: RELIGION AND DEMOCRACY IN
AMERICA 36 (1984) ("Public decisions must be made by arguments that are public in character.'.
Lilla marks the intellectual origins of the distinction in Hobbes' psychology and epistemology, limiting what is knowable to a person's sense perceptions. LILLA, supra note 34, at 76,
92-93. Spinoza's textual analyses of the Bible and analysis of the limits of human understanding
similarly contributed, and influenced Locke's Letter Concerning Toleration. Id. at 97. But cf
MICHAEL KIRWAN, POLITICAL THEOLOGY: A NEW INTRODUCTION (2008) (criticizing Lilla).
Without calling into question the political and sociological claim, others doubt the epistemic viability of the divide between religious and nonreligious reasons and between the overlapping consensus and comprehensive doctrines. See, e.g., Charles Taylor, Whj We Need a Radical
Redefinition ofSecularism, in THE POWER OF RELIGION IN THE PUBLIC SPHERE; Jirgen Habermas
& Charles Taylor, Dialogue, in THE POWER OF RELIGION IN THE PUBLIC SPHERE, supra, RONALD
DWORKIN,JUSTICE INROBES 251-54 (2006) (doubting the philosophic durability of the concept
of public reason). See generally Greene, supra note 14, at 1615 (reviewing the positions of Kent
Greenawalt, Kathleen Sullivan, Michael Perry and others in law reviews and comparing them
with the positions of Michael McConnell, Steven Smith and David Smolin).
60See Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("[Tlhere is no such thing as a
false idea.").
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dominantly secular purpose and offer reasons that all members of the
political community can be expected to understand and debate because
based on an appeal to the material and communal world they share,
even as individual values, perceptions, and expression are also given
and motivated by a religious reality as well. A written constitution,
adopted following ratification debates by the consent of the governed,
demands no less."
The Constitution and its First Amendment are, after all, a product
of the Enlightenment. Given its origins, William Miller explains:
[T]he United States is peculiarly the offspring of the Enlightenment,
just as she is peculiarly the offspring of the English Protestant
Reformation .
...
The United States was more unequivocally im-
bued with the Enlightenment than the nations of its mother continent because it contained within it no major remnant of an unenlightened past and because its participants in that international
movement could be not just writers and thinkers and leaders of
thought but the founders and framers of the nation itself.62
This divide between two orders of discourse, public reason and
faith, corresponds to, and helps underwrite, divides in the other structural principles: the modest claim of authority (in the consent of the
governed) in democratic legitimacy; the limited delegated powers,
which exclude religious matters; the anti-balkanization principle against
dividing the polity along religious lines, partly by assuring that the state
does not exceed the scope of its delegated powers; and the protection
of private associations that foster obligations that the state can neither
supply (because beyond state competence) nor hinder.
61
Eisgruber, supra note 14, at 360-65.
62 MILLER, supra note 23, at xi (2003) (following LOUIS HARTZ, THE LIBERAL TRADITION IN
AMERICA: AN INTERPRETATION OF AMERICAN POLITICAL THOUGHT SINCE THE REVOLUTION
(1991)); c id. at xii ("[Tlhe United States [is not] the great agent of the deliberately secularizing
acids of modernity, setting herself by official national ideology against traditional religious beliefs, as did the French and Russian Revolutionaries and perhaps Atattirk in Muslim Turkey").
2014]
II.
THE STRUCTURAL WALL
191
INVOKING EQUAL PROTECTION AND LOWERING THE WALL
In support of lowering the structural Wall of Separation" of the
Vinson, Warren, and Burger Courts, various arguments have been
made to challenge and reject this structural view. Some, like Justice
Thomas, have viewed the Establishment Clause as purely a "federaljurisdictional clause," protecting state laws respecting an establishment
but not otherwise having any substantive content;64 a critique of this
claim is in the Appendix." Others have seen the clause's underlying
principle as an expression of liberty of conscience, as in Justice Kennedy's coercion test and Martha Nussbaum's work. 6 Others have invoked equal protection values in their focus on formal neutrality, to
which this essay now turns.
In their equal protection cases, the Rehnquist and Roberts Courts
have grafted a structural element of the Establishment Clause, concerning the polity, into their interpretation of equal protection principles.
63 See, e.g., Zelman v Simmons-Harris, 536 U.S. 639 (2002); Mitchell v Helms, 530 U.S. 793
(2000); Agostini v. Felton, 521 U.S. 203 (1997) (demoting the entanglement prong); Lupu, The
Lingering Death, supra note 14, at 231-33. The Court has increased the availability of economic
and normative benefits to religious groups, limited the special standing rules of Flast v. Cohen,
392 U.S. 83 (1968), and demoted the entanglement prong, with its concern for divisiveness in
the Lemon Test.
6 See Van Orden v. Perry, 545 U.S. 677, 693 (2005) (Thomas, J., concurring) ("[T]he [Establishment] Clause's text and history 'resis[t] incorporation' against the States"); Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 45, 53 n. 4 (2004) (Thomas, J., concurring) (citing
AMAR, supra note 14, at 253-54); Zelman v. Simmons-Harris, 536 U.S. 639, 678-80 (2002)
(Thomas, J., concurring) (noting that the text of the Establishment Clause places no limit on
states); Cutter v. Wilkinson, 544 U.S. 709, 726 (2005) (Thomas, J. concurring); if Lee v. Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting, joined by Thomas, J., et al.) ("The Establishment Clause was adopted to prohibit such an establishment of religion at the federal level
(and to protect state establishments of religion from federal interference).").
65 See, infra APPENDIX at 243.
66 See MARTHA NUSSBAUM,
LIBERTY
OF CONSCIENCE:
IN
DEFENSE OF AMERICA'S
TRADITION OF RELIGIOUS EQUALITY (2008); 1 DOUGLAS LAYCOCK, RELIGIOUS LIBERTY:
OVERVIEWS & HISTORY (2010); see also JESSE H. CHOPER, SECURING RELIGIOUS LIBERTY:
PRINCIPLES FOR JUDICIAL INTERPRETATION OF THE RELIGION CLAUSES (1995); Noah Feldman,
The Intellectual Orgins of the Establishment Clause, 77 N.Y.U. L. REv. 346, 351-52 (2002). Justice
Kennedy's coercion test, see, e.g., Greece v. Galloway, 134 S. Ct. 1811 (2014) (Part II-B plurality
op.), were it to be the primary factor, would turn the Establishment Clause into an ancillary
component of free exercise. Some of the recent scholarly emphasis on conscience and free exercise simply grows out of Employment Division, Department of Human Resources of Oregon v. Smith,
494 U.S. 872 (1990), and the decade-long political response to it, the Religious Freedom Restoration Act (RFRA), state RFRAs, and the Religious Land Use and Institutionalized Persons Act
(RLUIPA).
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Shaw v. Reno6 7 explicates this element most fully: to permit an
overtly racially-drawn district would reinforce rather than mute divisions along racial lines and make fluid political alliances among multiple
groups and interests harder to develop. A race-blind rule instead encourages voting on the basis of a multiplicity of cross cutting interests.
What kind of interests? Material interests that should engage "American," not identity, politics. Shaw also explains that race-conscious districts encourage politicians to conceive their representational tasks primarily in light of the majority racial group that elects them." For the
special scorn that some justices feel for identity politics-as distinct
from the politics of individual material interests-recall the footnote in
Parents Involved in which the plurality took unusual note of a school district website.6 ' The website spoke of getting beyond outmoded individualism in favor of a more "collective ideology" that rejects "colorblind[ness]" and that permits racial-identity to play a role in
government decision-making. 0 For these justices, race is no basis for
political identification and no substitute for politics focused on solving
collective problems facing individual Americans, as Americans.
Any "national minorities" policy, other than race blindness, harms
the body politic. In a nation of minorities consisting of a variety of
ethnicities, as Justice Powell noted in Bakke, a rule allowing the legislature to allocate "racial spoils" would embroil the nation in a destructive
competition." Given the deep history of racial hatred and prejudice,
any other policy, warns Scalia, is "play[ing] with fire." 72 Therefore, as
Scalia succinctly puts it: In this nation there is only "one race[:] American." 73 Without attribution, all this is one component of the theory of
the Establishment Clause but with this empirical twist: race, but not re67 509 U.S. 630 (1993).
68 Id. at 648. Equal protection rational basis review has its own structural element, explained
by Justice Jackson in Railway Exprss Agency, Inc. v. New York, 336 U.S. 106, 112-13, 115 (1949)
(Jackson, J., concurring) (limiting how legislative majorities can be amassed by minimally limiting the gerrymandering of burdens and benefits in legislation).
69 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 730 n. 14 (2007).
70 Id. ("Seattle's Web site described 'emphasizing individualism as opposed to a more collective ideology' as a form of 'cultural racism'."). See also Richmond v. J.A. Croson Co., 488 U.S.
469, 495-96 (1989) (suspecting that Richmond's city council was distributing racial spoils); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 296-98 (1978) (Powell, J. op.).
71 Bakke, 438 U.S. at 305, 319-20 (1978).
72 J.A. Croson Co., 488 U.S. at 527 (Scalia, J., dissenting).
73 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in
part and concurring in the judgment).
2014]
THE STRUCTURAL WALL
193
ligion, is thought to pose risks of divisiveness to the polity and a dangerous anger among citizens.
As the Rehnquist and Roberts Courts transplanted an Establishment Clause structural insight into its equal protection analysis, some of
these same justices have begun to engraft equal protection anticlassification ideas into the religion clauses,74 while pruning its structural
components, and leaving the Establishment Clause doctrine much the
poorer.
On this view, the religion clause values can best be implemented
through an anti-classification rule that forbids treating religion differently from other private associations, although the Constitutional text
specially classifies by religion and addresses different and special rules
for religious institutions (no establishment) and religious accommodations (free exercise). Applying an anti-classification analysis to religion,
some justices and scholars criticize the structural model of the Wall as
discriminating against religion because it is not religion-blind."
Some might think that a provision aimed solely at protecting rights
of conscience would best be advanced by a doctrine mandating state
neutrality to prevent intentionally targeting religious belief. But from
the structural point of view, formal or substantive" neutrality about religion as the primary value (rather than as a feature of doctrinal rules
implementing separation) is inapt. There is nothing neutral about a
74 See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995) (plurality
op.); Locke v. Davey, 540 U.S. 712 (2004) (Scalia, J., dissenting); Steven G. Calabresi & Abe
Salander, Religion and the Equal Protection Clause (Aug. 2012) (unpublished paper) (available
at http://works.bepress.com/stevencalabresi/3); Michael W. McConnell, Accommodation of Rekg9ion:An Update and a Response to the Criics,60 GEO. WASH. L. REV. 685, 691 (1992); Ira C. Lupu
& Robert W. Tuttle, The Faith-BasedIniiative and the Constitution,55 DEPAUL L. REv. 1, 4 (2005);
Feldman, infra note 250, at 28; f EUGENE VOLOKH, THE FIRST AMENDMENT AND RELATED
STATUTES: PROBLEMS, CASES AND POLICY ARGUMENTS (5th ed. 2013), ch. 11.
75 See Locke v Davey, 540 U.S. 712, 726 (Scalia, J. dissenting) (joined by Thomas, J.);
Calabresi & Salander, supra note 74.
76 Douglas Laycock, Substantive Neutrality Revisited, 110 W. VA. L. REV. 51 (2007); Douglas
Laycock, The Underlying Unity of Separation and Neutrality, 46 EMORY L.J. 43 (1997); Michael W.
McConnell, Re/igious Freedom at a Crossroads,59 U. CHI. L. REv. 115 (1992).
On non-neutral rules expressing Protestant religious beliefs as against Catholic beliefs, see
Michael W. McConnell & Richard A. Posner, An Economic Approach to Issues of Religious Freedom,
56 U. CHI. L. REv. 1, 37 (1989) (baseline neutrality); Laycock, The Underlying Unity of Separation
and Neutrality, supra; John H. Mansfield, The Rekigion Clauses of the FirstAmendment and the Philosophy of the Constitution, 72 CALIF. L. REV. 847 (1984); David C. Williams & Susan H. Williams,
Voliionism and Religious Liberty, 76 CORNELL L. REV. 769 (1991) availableat http://scholarship.la
w.cornell.edu/clr/vol76/iss4/1.
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structure. The five structural elements of the Wall are not "neutral;"
they have disproportionate consequences for various churches. For
persons who believe that a jealous or faith-seeking God actively governs the political world, the lack of a religious foundation in the Constitution is not neutral. When Douglas MacArthur, as Allied Supreme
Commander of Japan, eliminated Shinto as its state religion and compelled the Emperor to confess the "false conception that the Emperor
was divine," MacArthur was not simply empowered to contravene
some principle of neutrality because he was acting extra-territorially or
under the compelling need of military necessity; rather he acted consistently with a foundational Establishment Clause principle (although it
severely burdened the free exercise of religion of most Japanese).n For
a majority religion, rules reducing divisiveness may be disadvantaging
by protecting minority religions. For those who believe that the State
owes a duty to support religious practices affirmatively, at least those of
the one true church, the bar on funding is not neutral. Because clerics
are not invested with power, and because there is a right of exit from
private associations (a requisite of any liberal regime), the religion clauses favor congregational authority over the hierarchical and preclude enforcing religious apostasy rules.7 ' Finally, while some see in the religion
clauses a commitment to state neutrality as among ways of knowing all
77 NOONAN, supra note 51, illuminates this event, as Noonan does so much else. But he
claims that the enforcement of the religion clauses involves a "Durkheimian" paradox arising
from the fact that a functioning community needs sentiments of a sacred nature to bind its
members together. Such sentiments cannot be a bland set of rational value statements that elicit
agreement in a poll but rather involve sentiments that occupy a sacred and taboo space. (From
a functionalist point of view, sentiments are religious because they occupy a sacred space.) Because it is essential to communal solidarity, state power maintains this space. The paradox for
Noonan is this: the state becomes the national religion when religion itself is disestablished.
Only the Court's rejection of the flag as sacred, see West Virginia State Board of Education v.
Barnette, 319 U.S. 624 (1943) and Texas v. Johnson, 491 U.S. 397 (1989) (and related flag desecration cases), assuage his concern that the state will come to occupy the sacred space.
The paradox I think, is overstated. Noonan's examples of the sacred state in caselaw-the
Court's refusal to authorize religious exemptions from taxes and military service-involve not
the Durkheimian worship of the state that Noonan sees, but a practical protection of the state
which is essential to our liberties, including religious ones. The religion clauses are a key part of
an entire liberal regime of limited government in which the whole limits the exercise of state
power. Indeed, religion helps curb the power of the state and the Establishment Clause protects
the autonomy of churches.
78 See Walzer, The Art of Separation, supra note 15, at 53-54, 58 ("The art of separation doesn't
make only for liberty but also for equality . . t[I]
creates, in principle, the priesthood of all believers, that is, it leaves all believers equally free to seek their own salvation, and it tends to create, in practice, churches dominated by laymen rather than by priests.").
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things, the Establishment Clause, in cases when neutrality and enlightenment values conflict, should favor the collective commitment to public reason among elected officials 9 and the standards of critical and scientific inquiry based on argument and evidence in public education."
To try to clinch their argument against the Wall of Separation, a
justice and scholars have gone further than invoking an anticlassification principle with its claim of formal neutrality; they have also
invoked equal protection motive doctrine to assert that the Wall of
Separation is motivated by anti-Catholic bigotry. They look to the history of blatant discrimination against Catholics shortly before the Civil
War, the post-Reconstruction era of the proposed Blaine amendment
agitation,"' and the personal history of the one-time Ku Klux Klan
member, Justice Black, who wrote Everson,82 when the Court unanimously embraced the Wall of Separation as the proper understanding
of the Establishment Clause. This claim of discriminatory motive involves a profound misunderstanding.
III.
JUSTICE THOMAS' MARTYROLOGY: ANTI-CATHOLICISM, ANTIPAPISM, AND ANTI-CLERICALISM
A.
The Charge of Prejudice
In the wall-lowering Mitchell v. Helms, Justice Thomas' plurality
opinion states:
[H]ostility to aid to pervasively sectarian schools has a shameful
pedigree that we do not hesitate to disavow .... Although the dissent professes concern for "the implied exclusion of the less favored," . . . the exclusion of pervasively sectarian schools from gov-
ernment-aid programs is just that, particularly given the history of
such exclusion. Opposition to aid to "sectarian" schools acquired
7 See KENT GREENAWALT, PRIVATE CONSCIENCES AND PUBLIC REASONS (1995); qf KENT
GREENAWALT, RELIGIOUS CONVICTIONS AND POLITICAL CHOICE (1988).
80 Accordingly, exemptions should rarely be afforded to religious students or religious
schools from secular curricular requirements furthering rational inquiry. But see Nomi Maya
Stolzenberg, 'le Drew a Circle That Shut Me Out": Assimiladon, Indoctrination, and the Paradox of a
Liberal Educaion, 106 HARV. L. REv. 581 (1993) (discussing Mozert v. Hawkins Cnty. Bd. of
Educ., 827 F.2d 1058 (6th Cir. 1987).
81 At least one state court has severely criticized a state "Blaine amendment" on a theory
that the motivation for its adoption was the product of anti-Catholicism. See Kotterman v.
Killian, 972 P.2d 606, 624-25 (Ariz. 1999).
82 Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1 (1947).
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prominence in the 1870's with Congress's consideration (and near
passage) of the Blaine Amendment, which would have amended the
Constitution to bar any aid to sectarian institutions. Consideration
of the amendment arose at a time of pervasive hostility to the Catholic Church and to Catholics in general, and it was an open secret
that "sectarian" was code for "Catholic." . . . Notwithstanding its
history, of course, "sectarian" could, on its face, describe the school
of any religious sect, but the Court eliminated this possibility of confusion when, in Hunt v. McNair. . . it coined the term "pervasively
sectarian"-a term which, at that time, could be applied almost exclusively to Catholic parochial schools and which even today's dissent
exemplifies chiefly by reference to such schools.83
It is troubling that three other justices signed onto this particular
martyrology,8 4 with the result that it was endorsed by a total of three of
the Court's now six Catholics," members of the largest denomination
in the United States. Similarly, Professor Philip Hamburger has sug83 530 U.S. 793, 828-29 (2000) (internal citations omitted); qf Town of Greece v Galloway,
134 S. Ct. 1811, 1837 n. 1 (2014) (Thomas, J. concurring). Despite the opportunity it provided,
no justice renewed this claim in Locke, 540 U.S. at 735 n. 7 (2004).
Thomas' characterization of McNair is strange. That case distinguishes college education
(there a Baptist college, but the reasoning included Catholic colleges) from elementary and high
school religious training. Vatican II's Declaration on Christian Education, Gravissimum
Educationis, itself recognized that Catholic colleges differ from primary and secondary religious
schools in that the former teach according to generally-accepted academic disciplinary standards of knowledge:
she intends that by their very constitution individual subjects be pursued according to
their own principles, method, and liberty of scientific inquiry, in such a way that an
ever deeper understanding in these fields may be obtained and that, as questions that
are new and current are raised and investigations carefully made according to the example of the doctors of the Church and especially of St. Thomas Aquinas, (31) there
may be a deeper realization of the harmony of faith and science.
Second Vatican Council, Pope Paul VI, Declaration on Christian Education (Gravissimum
Educationis) 10, (Oct. 28, 1965), available at http://www.vatican.va/archive/hist-councils/ii
vatican council/documents/vat-ii-decl 19651028-avissimum-educationis_en.html [hereinafter Gravissimum Educationis].
84 "One of the most distinctive and fundamental features of ultramontane Catholicism in
the culture wars era was its adoption of the language of victimhood." Papenheim, supra note 2,
at 215.
8s With respect to noting the religion of the justices, compare John Yoo, Partial-BirthBigott,
WALL ST. J., Apr. 28, 2007, at A8, available at http://www.aei.org/article/26054, with Ronald
Turner, Gongale. v. Carbartand the Court's 'Women's Regret" Rationale, 43 WAKE FOREST L. REV. 1,
3 n. 13 (2008), and Robert J. Pushaw, Jr., Partial-BirthAbortion and the Perils of ConstitutionalCommon Low, 31 HARv.J.L. & PUB. POL'Y 519, 560 n. 226 (2008).
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gested that Everson's Wall of Separation represents anti-Catholic bigotry
in his book Separation of Church and State."
The remainder of this essay will challenge the validity of this assertion and will argue that much of what is claimed to be prejudice instead
reflects a popular constitutional commitment to liberal democracy of
which the Wall of Separation is a crucial element.8 7
See generally PHILIP HAMBURGER, SEPARATION OF CHURCH AND STATE (2002).
The analytic structure of Hamburger's book and its definition of "separation" has provoked bewilderment and criticism from leading church-state scholars. See Kent Greenawalt,
Histor as Ideolog: Phihb Hamburger's Separation of Church and State, 93 CALIF. L. REV. 367 (2005)
(reviewing HAMBURGER, supra note 86); Douglas Laycock, The Many Meanings of Separation, 70 U.
56
87
CHI. L. REV. 1667 (2003) (same).
Other reviews note that he fails to acknowledge the long pedigree of the concept and
phrase "separation of church and state." See T. Jeremy Gunn, The Separation of Church and State
versus Religion in the Public Square, in Gunn & Witte, supra note 12, 26-38. Still others note that the
movement for a non-sectarian public school system preceded opposition to public funding of
Catholic schools. See Steven K. Green, The Insignficance of the Blaine Amendment, 2008 B.Y.U. L.
REv. 295 (2008); Tracy Fessenden, The Nineteenth-Centu Bible Wars and the Separation of Church
and State, 74 CHURCH HIsT. 784 (2005); Noah Feldman, Non-Sectarianism Reconsidered, 18 J.L.
& POL. 65 (2002).
In addition, these and other reviews all note what is a central claim of this essay: Hamburger's failure to recognize the political nature of what he labels anti-Catholicism. See, e.g., T.
Jeremy Gunn, The Separation of Churrb and State versus Reigion in the PublicSquare, in Gunn & Witte, supra note 12, 15, 26-38; Marci A. Hamilton, Book Review: "Separation":From Epithet to Constitutional Norm, 88 VA. L. REV. 1433 (2002); John Witte, Jr., That Serpentine Wall of Separation, 101
MICH. L. REV. 1869, 1887-89 (2003); see also Veronica Abreu, Muddled Orginal Understandingsof
The Establishment Clause: A Comparative Critique of Phihp Hamburger's and Noah Feldman's Historical
Arguments, 23 QUINNIPIAC L. REv. 615, 616 (2004); Zachary R. Calo, Note, 'The Indispensable
Basis ofDemocray:" American Catholidsm, the Church-State Debate and the Soul ofAmerican Liberasm,
1920-1929, 91 VA. L REv. 1037, 1040 (2003) (finding "the issues that defined postwar churchstate politics had already taken shape several decades earlier" than the "early postwar cases"
cited by scholars like Hamburger); Kevin F. Ryan, Separation of Church and State: The Knotty Problems of Constitutional Interpretation, 28 VT. B.J. 6 (2002).
Although Hamburger's claim has been subjected to withering criticism, Harvard University Press took Hamburger's claim seriously enough to publish it; and three justices took
Thomas' assertion seriously enough to sign his opinion. It remains necessary to address the
claim of discrimination directly and to develop the argument against it more fully than in Marc
D. Stern, Blaine Amendments, And-Catholidsm, and Catholic Dogma, 2 FIRST AMEND. L. REV. 153
(2004). Developing this critique is especially important because the historical narratives that
groups embrace have far reaching and subtle influence, even if relegated to the background in
informed debate. See generally Erik Erikson, IDENTITY AND THE LIFE CYCLE 18 (1947) ("Men
who share an ethnic area, a historical era, or an economic pursuit are guided by common images of good and evil... []hese images ... in the form of contemporary social models.. .assume
decisive concreteness in every individual[]....").
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Separation:An Anti-Balkaniation Technique
Analytically, the claim of discrimination cannot do the work that
Thomas (or Hamburger) would like. Some of the same justices who
reject the Wall of Separation have adopted an account of prejudice that
forbids treating individuals on the basis of criteria that are morally irrelevant to individuality (or individual merit). Race is the paradigmatic
case. Whatever may be said of the virtues of this understanding of racial
discrimination, it is the Court's. For an irrelevant characteristic, blindness may be the appropriate legal doctrine." Claims of religious discrimination cannot simply be assimilated to this approach. Unlike race,
one cannot say of religion that it is morally irrelevant to the individual
or to other persons' evaluation of her. Religious beliefs are core to the
self. They elicit proselytizing efforts to convert, lead to excommunication, and condemn to eternal damnation. Is it discriminatory-in the
sense of taking arbitrary or non-relevant characteristics into accountfor saints to band together, while excluding others, to try to create a
commonwealth of the elect?
If not through anti-classification "blindness," then how does our
Constitution address disagreements and splits arising from morally salient
differences among persons and groups, where there is no agreement
about the moral valence of the differences and when the differences
arise from religious conscience? Although there was widespread acceptance that religious belief was correlated with truth telling, steadfastness, and good character, the 1789 Constitution prohibited religious
tests and permitted affirmation as well as oaths. The goal was not to
eliminate arbitray discrimination (among otherwise similar persons) but
to avoid structural harms of religious division within the body politic
(as well as to preserve liberty of conscience).
The Wall of Separation was, in part, one of the Constitution's first
and most effective anti-balkanization8 9 moves: a constitutional tech88Admittedly, heightened scrutiny does not always depend on the Court's race paradigm of
blindness and moral irrelevancy. Among the various groups that have elicited heightened judicial concern, the Court has employed a sliding scale of scrutiny based in part on whether the
legislative use of a defining group characteristic may be relevant to a legislative task but nonetheless pose a risk of eliciting prejudice or overbroad stereotyping or liberty-burdening effects.
For example, statutory prohibitions on religious discrimination, though often catalogued with
race and gender, involve a theory of liberty of conscience and a different doctrinal structure of
accommodation.
89See, e.g.,Reva B. Siegel, From Colorblindness to Anibalkanizaion:An Emerging Gmund of Dedsion in Race EquaYty Cases, 120 YALE L.J. 1278 (2011); see also supra Sections I & II.
THE STRUCTURAL WALL
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199
nique by which those holding competing religious comprehensive views
are accommodated within the same state and society, and hostility reduced. This technique precludes certain political choices among such
comprehensive views in favor of a more limited range of political
choices that Rawls has usefully identified as within an "overlapping
consensus."O It politically disadvantages all groups as to those beliefs
that are outside the overlapping consensus (as defined through political
struggle and judicial interpretation); but because of variation in comprehensive world views, it may disadvantage groups differently. This
technique is neither explained by nor directly advanced by an anticlassification rule based on the Court's prevailing theory of prejudice.
C.
The Wages of an EstablishedChurch
The claim that the Wall of Separation is the product of antiCatholicism fails not only in its theory of discrimination but empirically:
it involves inadequate historical analysis.
Indeed there has been horrendous religious persecution throughout history-this is Roger Williams' theme in his book, Bloody Tenent, of
Persecution,for Cause of Consdence. The U.S. has had its (though lesser and
briefer) share of such bloody persecutions of, for example, Baptists,
Quakers, Jehovah's Witnesses, Mormons, Jews, Muslims, and certainly
Catholics, as Irish and Italian and Polish Catholics can attest.
But not all hostility and criticism have the same origins and characteristics. Much persecution of individual Catholics is certainly attributable to xenophobia: the irrational hatred of the other, and their different beliefs and practices refracted through a prism of race, ethnicity and
national origin. But equally, hostility of Protestants against Catholics
and Catholics against Protestants involve deep "sectarian" or "doctrinal" differences about core moral, epistemological and religious disagreements.9 1
Many of these doctrinal disputes between Protestants and Catholics took political form during and after the Reformation, which intensified exponentially when they involved established churches with state
power, state endorsement, and state support. Here is where the claim
9o See RAWLS, The Idea of Public Reason Revisited, supra note 59.
91 Theology explains a good deal of the hostilities. But rather than calling such beliefs discriminatory, it would be more illuminating to challenge them as correct or incorrect as a matter
of fact or scriptural interpretation, moral or immoral as a matter of their consequences, virtuous
or un-Christian in their ethical attitude.
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of anti-Catholic bigotry goes entirely awry. Linking anti-Catholic attitudes with the origins of the Wall of Separation often confuses bigotry
against persons identified as Catholic with legitimate political objections
to the Roman Catholic Church, established by state and empire for
over a millennium. In particular, the claim of bigotry ignores the
Church's anti-democratic and anti-liberal political principles embraced
in response to a modernizing world from 1789 (the year our Constitution was implemented and the French Revolution began with its resulting partial and temporary disestablishing of the Gallican church) until
Vatican II. Some of these deeply held objections to the Church are the
wages of its establishment.
The leading American Catholic analyst of church-state relations in
the 1950s, Father John Courtney Murray, similarly distinguished between bigotry and vehement criticism of the Church's politics:
[T]he Catholic political ideal is considered to be inherently destructive of the institutions of freedom of religion, freedom of speech,
freedom of the press, and freedom of association. These freedoms
have historically been of the very essence of the American political
system. Insofar as the Church seems to doubt or deny the validity
and value of this political system, she is inevitably regarded with
fear, distrust, and hostility . . . . [The] present indictment of the
Church cannot be dismissed as simply the product of "American
bigotry" or of an innate hostility to the Church on the part of
Protestants and secularists. The indictment troubles and concerns
many Americans of good will, who are otherwise prepared to be
friendly to the Church, to be sympathetic with her religious beliefs,
even to embrace them. 92
To use a different example, the established Church of England
92Joseph A. Komonchak, 'The Crisis in Churcb-State Relationshps in the U.SA." A Recenty
Discovered Text ly John Courtney Murray, 61 REV. POL. 675, 689, 692 (1999) [hereinafter
Komonchak, Crisisin Church-State Relationshps] (discussing memorandum prepared in 1950 and
eventually submitted to the Holy See); id. at 688, 700 (quoting Murray: "Americanism and Catholicism are fundamentally in conflict.. .. The Catholic Church cannot with full effectiveness
oppose Communism as long as it is itself regarded as being in opposition to the American political system that today stands most strongly against the spread of Communism"). One response
to Murray's Memorandum from within the Church rejected the idea that the state should leave
heretics free to preach; and it claimed that the state should endorse the true Church and that
the courts should discipline heretical priests to protect the church's teaching power under Canon 120 pri/legium fori and should curb heresy. Francis J. Connell, Comments on 'The Crids in
Churcb-StateRelationshps in the USA.," 61 REV. POL. 710, 711 (1999).
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was subjected to substantial hostility in the colonies between 1760-83,
but it would be a confusion to treat this as bigotry against Anglicans. 93
Indeed, after the disestablishment accomplished through the Revolution (and subsequently in the Virginia church-state revolution), Episcopalians did very well indeed for themselves.
Furthermore, specifically anti-Papist and anti-clerical rhetoric (in
America and more so in Europe) is attributable not primarily to ethnic
prejudice, as some try to suggest, but to religious differences that go to
Protestant core beliefs, rejecting the Pope's and priestly claims of authority over daily life and intercessional authority. Anti-clerical and anti-Papist talk is equally political speech: speech about authority and the
power of an established church. In the American post-revolutionary
process of disestablishment of state churches, congregants similarly expressed "anti-clerical" views against government-supported Protestant
93 See, e.g., An Attempt to Land a Bishop in America, POL. REG. (engraving) (London), Sept.
1769, (John Carter Brown Library at Brown University, Providence, RI (86)), available at
http://www.loc.gov/exhibits/religion/f0304.html (political cartoon showing mob of colonists
thwarting the landing of Anglican bishops in the colonies, shouting slogans like "Liberty &
Freedom of Conscience;" "No Lords Spiritual or Temporal in New England"); William Hogue,
The Reigious Conspiracy Theory of the American Revolution: Anglican Motive, 45 CHURCH HIST. 277
(1976) (recounting: a hundred years of very hostile exchanges between Anglicans and American
dissenters, in response to the Church of England's pervasive "aggression" as it tried to make
religious inroads in New England; and how this was transformed into a political dispute in the
decade prior to the American Revolution, in which both Church and Parliament were treated as
"joint enemies of American liberty"). Thus,
[Americans] attacked the institution of episcopacy, not because it was unscriptural,
but because it was a department of a government increasingly distrusted . . . . The
church and its bishops were depicted as inimical to the liberty -and to the propertyof Americans because of the ruinous cost of maintaining its bureaucracy, taxation of
the laity to support an army of clerical drones, ecclesiastical courts beyond the control of a suffering people, and the hobgoblin of a pro-church Tory party ascendant in
colonial legislatures.
Id. at 290-92.
To mention another example in the U.S., efforts to organize a Protestant political party,
the "Christian Party in politics," beginning in 1827 elicited substantial hostility. See Daniel
Dreisbach, Defining and Testing the Prohibition on Reigious Establishments in the Early Republic, in
Gunn & Witte, supra note 12, 252, 267-69.
For a recent example of why anticlerical speech isn't presumptively evidence of prejudice,
see Michael Slackman, Poland, Bastion of Relgion, Sees Rise in Secularism, N.Y. TiMEs, Dec. 11,
2010, at A14, available at http://www.nytimes.com/2010/12/12/world/europe/12poland.html
(reporting recent anti-clerical and anti-Church expressions by Catholics in the overwhelmingly
Catholic Poland).
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clergy. These claims were at once religious and political in nature: state
funding of clergy diminished the control of the laity over their preachers by undermining the laity's financial power over them. Anti-clerical
speech involves a claim about religious authority, not bigotry, and is not
necessarily or typically anti-religious.
It is necessary then to distinguish: (1) prejudice against the "otherness" of persons of different faiths, especially combined with a nativist
xenophobic hostility to their immigrant and ethnic origins;94 (2) hostility
to a religion arising from theological disputes between individuals, and
their voluntary association with others of similar beliefs;" (3) hostility
to a church's political commitments; 6 and (4) hostility to the political
commitments of an established church, seeking and exercising state
power and enjoying state support.7
94 Ethnicity and immigration are of course central to the Catholic experience in the United
States and as a result "Catholicism stands at the very center of the American experience." Jon
Butler, HistoriographicalHeresy: Cathokeism as a Modelfor American RekYgous Histoy, in BELIEF IN
HISTORY: INNOVATIVE APPROACHES TO EUROPEAN AND AMERICAN RELIGION 286, 289
(Kselman ed., 1991). Thus, one response of American Catholics to the history discussed here is
that it was prejudice that blinded Americans to the potential differences between American and
European Catholics and their churches. See infra note 167.
95 The U.S. Commission on International Religious Freedom has developed analogous distinctions in opposing discriminatory treatment of individuals on the basis of religion but opposing the proposals of the Organization of Islamic Conference (OIC) to ban blasphemy and libel
of religions. See U.S. Comm'n on Int'l Religious Freedom, The Dangerous Idea of ProtectingRekgons
from 'Defamation":A Threatto UniversalHuman Rights Standards (Fall 2010), http://www.uscirf.go
v/images/uscirf/20policy/20focus%20defamation%202010%20update.pdf.
In the 1930's, the Vatican and Pius XI relied on this distinction (between race xenophobia
and hostility to those holding different religious beliefs) to distinguish Hider's anti-Semitic racial
laws from Mussolini's racial laws and the Church's long standing and intense anti-Judaism. Using this distinction, Pope Pius XI struggled without success to persuade Mussolini to modify his
racial laws to recognize marriage between a Catholic and a (former) Jew who, ostensibly as a
matter of faith and belief, had been baptized in the Church. See DAVID KERTZER, THE POPE
AND MUSSOLINI: THE SECRET HISTORY OF PIUs XI AND THE RISE OF FASCISM IN EUROPE
193-98, 210-12, 289-91, 305-22, 327-69 (2014).
96 In this third category, one can and should further distinguish between disagreements over
the basic constitutional structure and the full range of political choices that a regime makes.
97 These categories are analytic not phenomenological. Individuals and communities subject
to hostility and criticism understandably feel under attack and threatened from a hostile society.
For one example of that experience, see SHARON DAVIES, RISING ROAD: A TRUE TALE OF
LOVE, RACE, AND RELIGION IN AMERICA (2010) (describing Justice Hugo Black's Birmingham,
Alabama in 1921).
The combination of prejudice with political disagreements can yield a dangerous, indeed
deadly, mixture of hostility and inaccurate conspiracy theories, especially potent when the exercise of power is at stake.
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Not all, but much of what Hamburger," Thomas, and others decry
as anti-Catholic bigotry clearly falls into categories three and four (as
discussed in detail in the next section). To ignore these multiple categories and simply categorize all opposition and hostility as bigotry (or to
presume that political factors are ancillary merely augmenting extant,
primary prejudice) fails analytically, rendering any conclusion suspect
and unsupported.
Bassam Tibi offers an analogous analysis, distinguishing Islam, the
religion, from its variant, Islamism." He defines Islamism as a "political" Islam'"0 that seeks a "unity of state and religion . . . under a system
of constitutionally mandated shari'a law" (or, more precisely, a newlyimagined shari'a).'o' Islamism seeks to establish a political order of a
worldwide "imagined umma"102 that would transcend the diversity of nation states and thereby also suppress the variations (in time and space)
98 With too rare exceptions, Hamburger restricts his analysis to categories that can be described as "anti-Catholic" or "not anti-Catholic," and sometimes "less anti-Catholic." Only
occasionally in passing does he acknowledge the political nature of the opposition to the
Church. Even while noting that anticlerical rhetoric relates to matters of "authority," Hamburger often treats anti-clerical talk not as politics but as anti-Catholic and anti-religious prejudice.
For another claim of animus that minimizes the political (making it ancillary to a primary
prejudice), see John C. Jeffries, Jr. & James E. Ryan, A PoliticalHistog of the Estabishment Clause,
100 MICH. L. REv. 279, 302-03 (2001) (noting that "Rome hampered attempts by American
Catholics to abandon the Church's legacy by issuing reactionary pronouncements ideally suited
to confirm the rankest prejudice"). For other claims of anti-Catholic discrimination, see alsoJay
S. Bybee & David Newton Of Orphans and Vouchers: Nevada's "Little Blaine Amendment"
and the Future of Religious Participation in Public Programs, 2 Nev. L.J. 551, 555 (2002) (the
"Vatican Decree of Papal Infallibility of 1870 added to the anti-Catholic sentiment during this
time"); Brandi Richardson, Comment, EradicatingBlaine's Legay of Hate: Removing the Barrierto
State Funding of Rehgious Education, 52 CATH. U. L. REv. 1041 (2003); Joseph P. Viteritti, Blaine's
Wake: School Choice, the FirstAmendment, and State ConstitutionalLaw, 21 HARv. J.L. & PUB. POL'Y
657, 670-75 (1998); JOSEPH VITERYrl, CHOOSING EQUALITY: SCHOOL CHOICE. THE
CONSTITUION AND CIVIL SOCIETY 18, 152-54 (1999).
Thomas Berg recognizes that newer scholarship has shown that "colorable fears about
Vatican political doctrines.. .cannot be dismissed as merely anti-Catholic." Berg, Disestablishment
from Blaine to Everson: Federalism,School Wars, and the EmergingModern State, in Gunn & Witte, supra note 12, 306, 318-19; see also Thomas Berg, Anti Catholicism and Modern Church State Relations,
33 LoY. U. CHI. L.J. 121, 130 (2001); infra note 165. For another discussion recognizing the political dimension of responses to the Church in the United States, see CHARLES SEWREY, THE
ALLEGED "UN-AMERICANISM"
OF THE CHURCH AS A FACTOR IN ANTI-CATHOLICISM IN THE
UNITED STATES, 1860-1914 (1955).
99
100
BASSAM TIBI, ISLAMISM AND ISLAM (2012).
Id. at 2-3.
101 Id. at 3.
102 Id. at 2.
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of Moslem beliefs and practices. As such, it involves "the promotion
of a political order that is believed to emanate from the will of Allah
and is not based on popular sovereignty."' 03 In many venues, "Islamists have succeeded in defaming their critics as 'Islamophobic,"'' accusing those who criticize Islamism of prejudice against Islam, if outside, or of heresy if within.'s Tibi accuses westerners of surrendering
their liberal heritage when they fail to challenge the Islamaphobic accusation.
D.
The Politics of the UltramontaneCatholic Church
The following sections briefly stretch a few of the political bases
for opposition to the Church, the Pope and priests.
i.
Political Ideology: Establishment vs. Liberal Democracy
In the nineteenth century, the Pope himself linked the Church's
anti-democratic and anti-liberal politics with the necessity of its establishment.os As Americans were embracing Jacksonian Democracy,
Pope Gregory XVI, as the monarch of the Papal States (extending from
the Kingdom of Naples to the Republic of Venice) sought to suppress
democratic and nationalist forces in Italy, first with press censorship,
then the papal police force, then the papal army, and finally by inviting
foreign monarchs, first of Austria and then of France, to send an army,
which remained as an occupying force for eight years. After the successful repression of the Italian rebellion and in the year of Jackson's
second election in 1832, Gregory issued his first encyclical Mirari Vos
103 Id. at 1.
104 TIBI, supranote 99, at 29.
105 Id. at 9.
106 Paul E. Sigmund, Catholism and Liberal Democray, in CATHOLICISM AND LIBERALISM:
CONTRIBUTIONS To AMERICAN PUBLIC PHILOSOPHY 217, 223 (R. Bruce Douglass & David
Hollenbach eds., 2002) ("Liberal democracy was identified by the nineteenth-century papacy
with the separation of church and state, the removal of public support for Catholicism, the secularization of education and marriage, and efforts to replace the Catholic religion with an allencompassing rationalism and anti-clericalism") [hereinafter Sigmund, Catholidsm and Liberal
Democrag]. Indeed, on one view, it was precisely the commitment to maintain the Papal states
and its status as an established church that led the Church to so fully reject liberalism and, as a
result, to undermine movements within the Church that might have influenced the substantive
content of European liberalism away from secularism. See Peter Steinfels, The FailedEncounter
The Catholc Churh and Liberalsm in the Nineteenth Centuy, in CATHOLICISM AND LIBERALISM:
CONTRIBUTIONS TO AMERICAN PUBLIC PHILOSOPHY, supra at 23.
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condemning "shameless lovers of liberty," who advocate "to separate
the Church from state," rather than holding that people owe obedience
and submission to princes (including the Pope) under "divine and human law." 107 Referring to the "terrible conspiracy of impious men" rebelling in the Papal States, he explained, "We had to use Our Godgiven authority to restrain with the rod the great obstinacy of these
men."' 8 In criticizing those Catholics who were troubled by the
Church's "attachment to despotic regimes," he wrote
The shameful font of indifferentism gives rise to the absurd and erroneous proposition that claims of freedom of conscience must be
maintained for everyone. It spreads ruin in sacred and civil affairs . .
. . [ ]cities renowned for wealth, dominion, and glory perished as a
result of this single evil, namely immoderate freedom of opinion, licence of free speech . .
..
He considered the freedom to publish "15.... never sufficiently
denounced," and added that "16. The Church has always taken action
to destroy the plague of bad books" by "extermination" that includes,
in his examples, burning, banning, removal and the "index of books.""o
The year following Lincoln's Gettysburg Address, Gregory's successor, Pope Pius IX, issued the encyclical Quanta Cura, which reiterated Pope Gregory's condemnation of the "insanity" of "liberty of conscience and worship.""' As an annex to it, he issued The Syllabus of
107 JOHN W. O'MALLEY, WHAT HAPPENED AT VATICAN II 59 (2008) (quoting Pope Gregory
XVI, Mirari Vos (Encyclical Letter on Liberalism and Religious Indifferentism) 1 17, 20 (Aug.
15, 1832) available at http://www.papalencyclicals.net/Gregl6/gl6mirar.htm (hereinafter Mirari
Vos). Before election as Gregory XVI, Bartolomeo Alberto Cappellari explained that as God
was sovereign ruler, so too the Pope exercised full sovereign authority like a monarch (including conjoined legislative, judicial and executive power), and his sovereignty was entitled to absolute obedience. See RUSSELL SHAW, PAPAL PRIMACY IN THE THIRD MILLENNIUM 61 (2000) (discussing Cappellari's THE TRIUMPH OF THE HOLY SEE AND THE CHURCH OVER THE ATTACK OF
INNOVATORS (1799), which argued for papal sovereignty and against Gallicanism).
10 O'MALLEY, WHAT HAPPENED, supra note 107, at 58 (quoting Mirari Vos
1, 2).
109 Id. at 59-60. O'Malley describes Pope Gregory's view: "there can be no order in society
without religion, no religion without Catholicism, no Catholicism without the papacy, no effective papacy without its having sovereign and absolute authority." JOHN W. O'MALLEY, A
HISTORY OF THE POPES: FROM PETER TO THE PRESENT 235 (2010) (describing Du Pape (1819)).
See also STEPHEN HOLMES, THE ANATOMY OF ANTILIBERALISM (1993) (discussing the first of
modern anti-liberals, the Catholic Count Joseph de Maistre, who elaborated on these themes).
o10
Mirari Vos, supranote 107.
111 Pope Pius IX, Quanta Cura (Encyclical Letter Condemning Current Errors),
3 (Dec. 8,
1864) available at http://www.papalencyclicals.net/Pius09/p9quanta.htm.
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Errorswhich specifically rejected as false a long list of ideas associated
with liberalism, including:
15. Every man is free to embrace and profess that religion which,
guided by the light of reason, he shall consider true[;] ...
45. The entire government of public schools in which the youth ...
of a Christian state is educated ... may and ought to appertain to
the civil power .... 112
55. The Church ought to be separated from the State, and the State
from the Church[;] ...
63. It is lawful to refuse obedience to legitimate princes, and even to
rebel against them[;] ...
76. The abolition of the temporal power of which the Apostolic See
is possessed would contribute in the greatest degree to the liberty
and prosperity of the Church[; ] ...
77. In the present day it is no longer expedient that the Catholic religion should be held as the only religion of the State, to the exclusion of all other forms of worship[;] ...
78. Hence it has been wisely decided by law, in some Catholic countries, that persons coming to reside therein shall enjoy the public exercise of their own peculiar worship; ...
80. The Roman Pontiff can, and ought to, reconcile himself, and
come to terms with progress, liberalism, and modern civilization.1 1 3
Following the establishment of a constitutional monarchy in Italy
during the Risorgimento, the Italian state defeated the Papal army, seized
Rome, and expropriated the Papal States, confining the Pope to the
Vatican. In response, Popes Pius and Leo, his successor, forbade Italian Catholics from participating as democratic citizens by voting and
112 In 1864 in another encyclical, Pius IX addressed the Archbishop of Munich among others to encourage their defense of the "authority, doctrine, and rights" of the Church regarding
public schools: "The enemies of the Church in the Grand Duchy of Baden had already proposed laws which destroy and entirely eliminate the Christian nature of the schools. We understand why you were concerned with defending the rights of the Church with regard to public
schools." Pope Pius IX, MaximaeQuidem (Encyclical Letter on the Church in Bavaria), T 4 (Aug.
18, 1864) available at http://www.papalencyclicals.net/Pius09/p9maxima.htm. The encyclical
noted that, unless the Church controls education, otherwise "honorable men who are destined
for the duties of public government.. .will be infected with errors and false doctrines." Id.
113 THE PAPAL ENCYCLCALS IN THEIR HIsTORICAL CONTEXT 145, 149-52 (Anne Fremantle
ed., 1956) available at http://www.papalencyclicals.net/Pius09/p9syll.htm.; see also JOHN T.
McGREEVY, CATHOLICISM AND AMERICAN FREEDOM: A HISTORY 96 (2003) (footnote omitted)
(citation omitted). In 1863, the Vatican "also released a statement denouncing a group of German Catholic theologians [who had insisted] on the right to scientific freedom." Id. at 88.
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office-holding in the new state, in effect rejecting the principle "of
the people, by the people, and for the people."
Urging the people instead to submit to their rulers as to God,
Leo's 1881 encyclical, Diuturnum, rejected the idea that the authority of
the state comes from the will of the people."' In 1888 in Libertas Humane, Leo again condemned "freedom of worship, of expression, and of
teaching.""' In 1892, Leo in Au Milieu condemned the separation of
church and state as an "absurdity,""' and encouraged French Catholics
now to participate in politics in order to protect the Church from the
liberals and their program of laictd.
The insistent opposition to liberalism and disestablishment continued through the first half of the twentieth century. Pius X in 1911
again condemned the separation of church and state."' As with Au Milieu, the Pope was responding to "anti-clerical" politics which, he believed, were not "neutral" to the Church because they disestablished
Catholic control over the educational system in favor of a public system." 9
In his address to Catholic lawyers in 1953, Pius XII again condemned the separation of church and state. 20 Two years later in 1955,
the American theologian John Courtney Murray was "forbidden to
write on his specialty, church-state relations," presumably because of
his too Americanized views' 2' and the French Jacques Maritain was "at114 This ban was lifted in Non Expeditin 1919.
O'MALLEY, WHAT HAPPENED, supra note 107, at 64.
116 Sigmund, Catholicism and LiberalDemocracy, supra note 106, at 222.
"s
17 Pope Leo XII, On the Church and State in France (Au Milieu Des Sollicitudes), 1 28 (Feb. 16,
1892) available at http://www.papalencyclicals.net/Leol3/113cst.htm.
118 In the 1911 encyclical Iamdudam, Pope Pius X condemned the "vicious and pernicious
Decree for the Separation of Church and State" the republican government of Portugal "inflicted upon the rights and dignity of the Catholic religion." The actions of the republic included: "the deletion of the feast days of the Church from the number of public festivals, the abolition of religious oaths, the hasty establishment of the law of divorce and religious instruction
banished from the public schools," in addition to burdensome provisions of disestablishment.
See Pope Pius X, On the Law of Separation (Encyclical Letter on lamdudum), TT 1, 2 (May 24,
1911) available athttp://www.papalencyclicals.net/Pius10/p10por.htm.
119 O'Malley remarks, "[t]he union of church and state with the church ruling over the state
had been a key Catholic doctrine since at least the Middle Ages." O'MALLEY, WHAT
HAPPENED, supra note 107, at 108. To praise the American model of church-state relations
"was to challenge the legitimacy of an ancient, and indeed seemingly immutable, Catholic doctrine." Id.
120 Id. at 254.
121Id. at 88. See Joseph A. Komonchak, Catholic Principle and the American Eperiment: The Silencing of John Courtny Murray, U.S. CATH. HISTORIAN, Winter 1999, at 28 [hereinafter
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tacked for his similar views." 122
The dissenting Protestant tradition would have interpreted all this
not only as a political dispute but also within a framework of irreconcilable theological differences. In particular, the Church had warned
against lay Bible reading lest mistaken interpretations arise. By contrast,
Protestantism had made individual conscience and the ability to read
the Bible and pray, without priestly intercession, foundational; and this
had encouraged the spread of the printing press and the translation of
the Bible into the vernacular. Eventually a new political paradigm of
informed voting citizens developed: the common man with access to a
free press, trusted to form his own opinions.123
ii.
Centralization of Papal Authority in Europe
These Papal statements were not just abstract pronouncements of
one religious leader. They announced a political program of a powerful
and hierarchical church. They were teaching instructions to bishops,
worldwide, as they ministered to the faithful. And the local priests they
oversaw had particular influence over their flock as a result of often
state-sanctioned control over the operation of schools and over the
administration of sacraments, including burial, marriage, baptismnaming, and communion, in addition to their supervisory authority
over the intimate details of life through the practice of confession.12 4
Komonchak, Catholic Prinnaple].
122 O'MALLEY, WHAT HAPPENED, supra note 107, at 88.
123 Id. at 35. This view of the political effect of Protestant theology was also held within the
Church. For example, in 1827, a Maryland Jesuit attributed the belief that all men were free (a
view called nonsense by a New York priest J.W. Cummings) to Protestant beliefs that "[elvery
man has a right to read and interpret the Scriptures, and, consequently, to form his religion on
them according to his own notion." McGREEVY, supra note 113, at 52, 54. In another example, the Vatican-supervised journal, La Civilta cattolica, in 1931, discussed the Protestant threat
in Italy because, inter-alia,"liberalism" is of "pure Protestant origin." KERTZER, supra note 95,
449 n. 27. Similarly, in 1934, the first Vatican nuncio (or ambassador) to Italy gave the Italian
minister of justice a pamphlet the nuncio had written that identified Protestant sects as,
the joint enemy of both the Catholic Church and the Fascist state. "[They]... are anti-hierarchical. Their principle is that each individual is the interpreter of divine revelation and therefore free to form his own interpretation through reading the Bible.
This principle is the basis of every democratic error, from liberalism to socialism to
anarchism."
Id. at 451 n. 48.
124 Small Protestant congregations and rabbinic enforcement of halakah (Jewish religious
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209
In the nineteenth century, the supra-national Roman Catholic
Church modernized its hierarchical system through increasing centralization, increasing administrative supervision, and the use of mass
communications such as an increased use of encyclicals. Ultramontanism refers to this centralizing process, involving as it did in Europe, a
turning "beyond the mountains" to Rome for guidance.'25 It triumphed
over the "Gallican" claims of the French church to more administrative
independence. While capable of exercising some independence by virtue of its distance, the American church also saw a turning to Rome, if
to a lesser extent.
However limited in actual scope, the assertion of papal infallibility,
at Vatican I in 1871, reflected this century-long process of Vatican centralization and was perceived outside the Church as an attempt to assert
an absolute authority by the Pope, including in the political matters the
Pope had recently addressed in his Syllabus of Errors.'26 In 1906, in
Vehementer Nos, Pius X again emphasized the hierarchical authority of
the church as "a society comprising two categories of persons, the pastors and the flock."' 27 The former holds all authority and its duty is to
direct "the multitude;" "the one duty of the multitude is to allow themselves to be led and, like a docile flock, to follow the pastors."' 28 Pius'
codification of canon law, launched in 1904 and completed in 1917, also secured increased Vatican authority.'29 In furtherance of this authority, Pius undertook the rooting out of modernist ideas, encouraging investigations of professors for their lectures, removal of teachers and
priests from authority, excommunications, and book banning via the
"Index of Forbidden Books." Indeed under Pius, "[e]xcommunications, dismissals from office, and banning of books reached epidemic
laws) also involve minute supervision of daily life with a resulting authority over the faithful.
The particular practice of confession (found not only in Catholic practice but in Lutheran, Anglican and Orthodox churches), however, involves a unique intervention in individual, married
and family life.
125 See, e.g., Christopher Clark, The New Catholidsm and the European Culture Wars, in CULTURE
WARS, supra note 2, at 11.
126 See supra note 123.
127 O'MALLEY, WHAT HAPPENED, supranote 107, at 65 (quoting Pius X, VehementerNos (Encyclical Letter on the French Law of Separation), 8 (Feb. 11, 1906), availableat
http://www.vatican.va/holy-father/pius-x/encycicals/documents/hfpx_enc_11021906 vehementer-nos en.htnl).
128 O'MALLEY, WHAT HAPPENED, supra note 107, at 65.
129
Id.
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proportions.""o
The institutional strength of the Church, deriving from its administrative organization, the strong faith of the faithful, and the wealth of
centuries accumulated in part through its establishments as a state
church, made it a potent political force. The teaching authority of the
Church assured that its views would be powerfully articulated in every
Catholic church throughout the city and countryside of every nation
state. Thus, the Vatican's anti-liberal and anti-democratic stance constituted a powerful program opposing liberalism and democracy.
iii. Political Relations with Authoritarian and Fascist Regimes
Add to this the fact of establishment, the particular governments
with which the Church established relations, and the express ambitions
of the Church in those relations. The Church was the established
church in a number of monarchies throughout nineteenth century Europe. Even where the Church was not alone in negotiating an official
status, it was often the most powerful and the most centralized. It
claimed a right not only to be an established church but also the established church where possible. This official status, state funding, mutual
endorsement of church and state, and church authorized control over
schools and life cycle events, all strengthened the Church's teaching authority and reinforced the political fears of others. In the struggles of
liberals and democrats across the continent, the Church was an impediment to reform, in their view, by buttressing monarchical states. In
turn, European monarchs came to the Pope's defense against Italian
democrats.
Following the rise of right-wing dictatorships after World War I,
the Church supported authoritarian and fascist regimes and signed concordats with those governments, including two of what became the Axis powers.
In 1929, the Church entered into the Lateran Accords with Italy.
They provided that the Catholic religion was "the only religion of the
State" (though other religions were tolerated), mandated Catholic religious instruction in the elementary and secondary schools, established
Vatican City as a sovereign state and made insulting the dignity of the
Pope a crime equivalent to insulting the King, provided substantial
compensation to the Church, recognized Catholic marriages, and made
130
Id. at 70-71; seealso id. at 68-70.
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211
Catholic feast days public holidays.' 3 ' To induce the Church's support
of his regime, Mussolini, several years earlier, had begun implementing
some of the Accords' provisions and had ordered crucifixes hung in
schools, hospitals and courtrooms, given substantial sums in support of
the Church, its edifices and priests, provided that insults of priests
would be punished and editors of papers critical of the Church would
be replaced, and intermittently interfered with the building of
Protestant churches. 32 Following the signing of the Accords, the Vatican increased its efforts to have the state implement its views about
censorship, women's modesty, Protestant proselytizing, and the like.'
After the Lateran Accords, the Vatican entered into a concordat
with Nazi Germany in July 1933, with Dolfuss' Austria in 1933, with
Salazar's Portugal in May 1940, and with Franco's Spain in June 1941
(and 1953); and it developed close relations with P6tain's Vichy government in France during World War I,134 These concordats did not
See KERTZER, supra note 95, at 106-07. Prior to beginning the negotiations of the Accords
in 1926, Mussolini observed that in governing he had "disposed of 'the prejudices of liberalism'... repudiated... the principle of separation of church and state' [and] worked hard 'to restore the character of being a Catholic State and a Catholic Nation."' Id. at 99. Two days after
the signing of the Accords, while speaking to a group of university students, Pope Pius XI described Mussolini as sent by "Providence" and as one "who did not share the concerns of the
liberal school." Id. at 110-11. The U.S. charge d'affaires reported to the U.S. secretary of state
that the Accords were "a triumph for Mussolini ... in winning over the clergy to Fascism." Id.
at 112.
132 Id. at 50, 63, 65.
133 The Vatican encouraged local committees of Catholic Action throughout the country to
act as "soldiers" in the "battle for morality" along with local authorities. KERTZER, supra note
95, at 166-67. The Vatican worked with the state to identify: plays and movies to be censored
(the LA Times noted "Italy Bans Sex Appeal in Pictures.. .Due to Pope's Protests"), id. at 170;
books to be banned (such as the best-selling gynecologist's advice book, IdealMariage that discussed sexual pleasure and fertility regulation); Protestant proselytizing to be curbed; ex-priests
to be fired from teaching positions; and women's immodest dress (even on Capri) and public
dances to be restricted, id. at 166-72. Modesty concerns led the Vatican to urge that females
reduce their participation in athletics, especially gymnastics; the president of the fascist youth
groups partly acceded by repurposing female athletics from physical training to ensuring that
"future mothers learned the necessity of seeing to the physical education of their children." Id.
at 168.
134 See generaly CONCORDAT WATCH, http://www.concordatwatch.eu/showsite.
php?org-id=843 (last visited June 28, 2011). For example, the 1940 Concordat between Portugal and the Vatican provided that, although the:
131
church was to be "separate" from the state, [it was] to enjoy a special position. [It]
reversed many of the anticlerical policies undertaken during the republic, [giving] the
Roman Catholic Church . .. exclusive control over religious instruction in the public
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involve the Church simply bowing under necessity to state authority or
even to the Nazi gleichschaltung, the coordination of all private associadons compelled by a totalitarian state; rather, they served the Church's
own search for a privileged status.'3 ' As in the Lateran Accords, the
Church used these relationships to undo some of the separation that
republican governments had previously achieved, and in particular to
reclaim control over schools. 136
But in addition to entering into formal treaties, the Church played
a supporting and sometimes central role in enabling these authoritarian
and fascist regimes to consolidate power and govern. With access to
recently opened Vatican archives, the historian David Kertzer details
the Vatican's ongoing support, arising from mutual self-interest and
ideological affinity, that helped Mussolini consolidate parliamentary
power from 1922 to 1924, transform that parliamentary majority into
dictatorial power by the time of the Lateran Accords, and govern thereafter with authority legitimated by the Church, including waging war in
Ethiopia.'3 7
schools. Only Catholic clergy could serve as chaplains in the armed forces. Divorce,
which had been legalized by the republic, was again made illegal for those married in
a church service. The Church was given formal "juridical personality," enabling it to
incorporate and hold property.
Howard J. Wiarda, The Societ and Its Environment, in PORTUGAL: A COUNTRY STUDY 98 (Eric
Solsten ed., 2d ed., 1993). See also Thomas C. Bruneau, Churrh and State in Portugal Crises and
Cross and Sword, 18 J. CHURCH & ST. 463, 470-72 (1976).
135 Kerzer strongly rejects the view that Pius XI broke with Mussolini in the 1931 encyclical
Non Abbiamo Bisogno, which criticized his compliance with the Accords because of fascist interference with the institutions of Catholic Action. See KERTZER, supra note 95, at 161-65; id. at
166 ("Many historians have identified the pope's 1931 battle with the Duce over Catholic Action as a papal struggle against fascism. But a look.. .shows just how mistaken they are. The
pope, far from seeing the Fascist regime as an obstacle in his efforts to use Catholic Action to
Christianize Italian society, viewed it as an indispensable ally.").
However, as the racist and totalitarian nature of the Nazi regime became clearer, Pius XI
took limited steps in criticizing the Nazis in the 1937 encyclical Mit BrennenderSorge condemning
Germany's breach of its concordat with the Church and its excessive focus on race. See
KERTZER, supra note 95, at 258-60, 467 n. 12. The death of Pius XI, in February 1939, halted
his planned additional encyclical against racism, which Pius XII never issued. See id. at 354-69.
Also, Pope Pius XII lifted Pius XI's ban on Catholic participation in the right-wing Action
Franfaisewithin months of his death. Id. at 387.
136 Success in undoing secular education in France was somewhat limited. See general Nicholas Atkin, The Challenge to Laidti: Church, State and Schools in Vichy France, 1940-1944, 35 HiST. J.
151-69 (Mar. 1992) (French church leaders disappointed in limited extent to which Petain undid
laidtiin educational system).
137 KERTZER, supra note 95, at 405 ("the Vatican played a central role both in making the
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THE STRUCTURAL WALL
213
Similarly, the Spanish Church played an early and central role in
supporting and legitimating Franco's war against the Spanish Republic,
and then his victory and governance in Spain; and as a result the republican disestablishment of the Spanish Church was undone.'3 ' A less
fascist regime possible and in keeping it in power"). In particular, the Vatican and Pius XI at
key moments distanced the Church from the Catholic Italian Popular Party, among Italy's largest parties and in a position to deny Mussolini a parliamentary majority. Public speeches of Vatican officials supported Mussolini. Id. at 51. The Vatican directed its journals, such as L Citili
cattolica, to halt its attacks on fascism, to support the established government and its established
order, and to reject the need for the Catholic Popular Party (as Mussolini was serving the
Church so well), even just prior to the 1924 election in which Mussolini won a parliamentary
majority for the first time. Id. at 48, 57, 65-66. Moreover, the Pope forced the head of the
Catholic Popular Party to resign in 1923 and then later to stop criticizing Mussolini. Id. at 58,
76. When Mussolini faced another parliamentary crisis in 1924 over the fascist murder of a
deputy, Church newspapers urged Catholics to obey civil authority and not to seek a new election, and warned the Popular Party against cooperating with the socialists in elections. Id. at 7577.
After the Lateran Treaty was signed in 1929, Mussolini acceded to the Pope's request to
purge, from a proposed slate of 400 fascist parliamentary deputies in an upcoming plebiscite,
Jews, Freemasons, those with ties to anticlerical parties, and those who were insufficiently
Catholic. Thereafter, via L'Osservatom romano, the "Vatican threw its full weight behind Mussolini's campaign" and urged Catholics to vote "yes" on the slate of 400 candidates. KERTZER, supra note 95, at 118. L.a Cviltd cattolica described Mussolini's subsequent electoral victory as a
"Christian restoration of society." Id. at 120.
138 See HILARI RAGUER, GUNPOWDER AND INCENSE, THE CATHOLIC CHURCH AND THE
SPANISH CIVIL WAR (Gerald Howson trans. 2007). Fighting a "religious crusade" for a "confessional state" became a motivating and legitimizing battle cry for the military rebellion against
the Republic within days of the failed coup ofJuly 1936. Id. at 20, 36-62, 72. Significant parts of
the Spanish Church gave immediate support, a "consecration of the pronunciamiento," culminating in the 1937 "collective letter" from most Spanish bishops to Catholics, world-wide, supporting and legitimizing Franco. Id. at 106-125.
Regions under the control of the rebellion soon began to undo the Republic's disestablishment of the Church. This undoing, not surprisingly, first centered on the educational system: the creation of a national educational system for all had been a core project of the Republic, id. at 28; and "[e]ducation.. had been the Church's great battlefield during the time of the
Republic," id. at 55.
In Navarra, within ten days of the rebellion's start, "A circular... ordered the returning of
all the Crucifixes to schools, prohibited all teaching contrary to the Catholic religion, re-opened
the religious colleges, prohibited the teaching of boys and girls in the same classes, and began
the purging of those teachers who had been denounced as being against the religion, morality
and unity of the Fatherland." Id. at 49.
Within weeks, similar steps were taken throughout Nationalist Spain. In the midst of war,
education was high on the agenda. In September 1936, "all school textbooks were ordered to
be revised and any matter deemed contrary to Christian dogma and morality removed;" and the
necessary separation of the sexes" was ordered. RAGUER, supra, at 55. A decree prescribed a
"weekly lecture to inculcate upon all first- and second-course pupils the fundamental tenets of
religious culture for 'the purpose of re-establishing in a definitive and permanent form the in-
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clear-cut causal account of the German and Austrian Church hierarchy's support of Hitler can also be given.'39
dispensable teaching of Religion and Morality that the Republic had suppressed."' Id. By April
1937, the Commission on Culture and Education required:
1.
2.
3.
4.
An image of the Most Holy Virgin ... shall be displayed in all schools....
Throughout ... May... teachers and pupils shall carry out the religious exercises stipulated for the month of Mary before the said image.
Every day of the year, when entering or leaving the school, the children
shall.. .address the image with the salutation "Hail, Mary, the Most Pure,"
to which the teacher shall reply "Conceived without Sin."
... [A]ll teachers shall join daily with the children in a short prayer beseeching the Virgin to bring the war to its happy ending.
Id. at 56-57. By October 1937, compulsory religious classes in secondary school were reimposed. Id. at 58. Moreover, the "teaching profession was subject to a rigorous purge in accordance with political, philosophical and religious criteria ..... Id. at 59.
In addition to education, decrees on other subjects followed. A representative of the
Church was placed on the film censorship board. Id. at 58. The state adopted many additional
religious holidays. RAGUER, supra, at 56-57. Church leaders, including cardinals, archbishops and
bishops, were assigned military ranks, id. at 58; exemption from military service of those in religious orders was readopted, id. at 55; and control of army chaplains was granted to the Church,
id. at 56. Unlike education, it took two or three more years to repeal other laws of the Republic:
civil marriage, divorce, the dissolution of the Society of Jesus, the secularizing of the cemeteries,
the budgets of the religious services and clergy... etc." Id. at 61-62.
During the civil war, the Vatican had remained largely neutral. See id. at 77-105, 186-208.
But in response to Franco's communiqu6 of victory on April 1, 1939, Pope Pius XII telegraphed him: "we sincerely give thanks.. .for the desired victory of Catholic Spain...." RAGUER,
supra, at 313-14. According to Raguer, in the ensuing years under Franco, the Spanish Church
saw itself as "the apogee of the Catholic thesis of the Confessional State...." Id. at 322. See also
Sigmund, Catholidsm and Liberal Democray, supra note 106, at 224-25 ("There seemed to be an
affinity . .. between the Vatican and authoritarian regimes that were willing to grant the church
certain rights in the areas of education and marriage. The ease with which Francisco Franco
could take over the Falange as his official party, and the support that he received from Spanish
ecclesiastical authorities seemed to prove this.").
139 Doing what took Mussolini a decade to accomplish, Hitler consolidated power in months
after becoming chancellor in January 1933. By early March, the Pope told the French ambassador, "I have changed my opinion about Hitler" because the Pope applauded Hitler's staunch
anti-bolshevism. On March 25, Pius XI expressed further appreciation of Hitler and his "good
declaration," following his pledge on March 23 to protect "the influence to which the Christian
confessions are entitled in school and education," as the Christian Churches were the "most
important factors in the maintenance of our national identity...." See KERTZER, supra note 95 at
200-01; HUBERT WOLF, POPE AND DEVIL: THE VATICAN'S ARCHIVES AND THE THIRD REICH
165 (Kenneth Kronenberg trans. 2010).
In mid-March in Rome, Cardinal Faulhaber, Archbishop of Munich, had already noted in
a memorandum to Secretary of State Pacelli (the future Pius XII) that Hitler's speeches "had
the courage 'to prodaim the name of God,"' in contrast to the "unacceptable" Weimar Constitution
which, making no reference to God in its preamble, was grounded entirely in popular sover-
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iv. Did Americans Know and Care About Rome?
When asked about the Pope's pronouncements during his campaign as the first Catholic presidential candidate of a major party, Al
Smith is reported to have responded, in some form, "I never heard of
these bulls and encyclicals." 40 Perhaps the previous materials provide
only a limited rebuttal to the assertion of American discriminatory animus because they were little known to American audiences or because
the American Catholic church, pursuing the Gallican model of independence, was indifferent to the Pope's teachings. Such was not the
case.
Focusing on the generation leading up to the ratification of the
Fourteenth Amendment and the drafting of the Blaine Amendment
makes clear that Americans, Catholics and non-Catholics alike, were
familiar with the ultramontane Church. As Archbishop Spalding of
Baltimore boasted to a friend in 1866, "with perhaps one exception,
there is not in the entire American Episcopate, a single element or vestige of Gallicanism.. . We are Roman to the heart.""'
The vast immigration from Europe, accelerating after the failed
revolutions of 1848, brought immigrants familiar with the European
conflicts of church and state, including participants in those upheavals,
eignty rather than divine right. Id. at 162.
While the causal effect of the Pope's evolving view of Hitler, which was communicated to
Faulhaber, is not crystal clear from the archival record, the German bishops completely reversed their public position on the Nazis by the end of March. Although Church leaders in
Germany had publicly condemned the Nazis for years and supported the Catholic Center Party
as recently as the early-March 1933 election, within weeks the Catholic Center Party provided
the necessary votes for the enabling act granting emergency powers to Hider; and the German
bishops then lifted their longstanding condemnation of the Nazi Party on March 28, 1933,
eliminating a (already crumbling) religious barrier to Catholic participation in the Nazi party.
The Catholic Center Party thereafter dissolved on July 3. Id. at 154-170. By July 20, the Vatican
signed a concordat with Germany. As Hitler's "first agreement under international law," it "represented a not inconsiderable foreign policy success." Id. at 175.
As the leader of the German Catholic Center Party and German Chancellor from 1930-32,
Heinrich Brilning, noted in his memoir, faith in concordats led the Vatican secretary of state
(the future Pius XII) and "the Vatican to despise democracy and the parliamentary system."
KERTZER, supra note 95, at 200-01.
In 1938, Austrian Church leaders endorsed Hider's annexation of Austria and supported a
plebiscite to legitimate his rule, although Vatican criticism then led them to withdraw their endorsement. Id. at 276-77.
140 MCGREEVY, supra note 113, at 149.
141 Id. at 26-27 (quoting THOMAS W. SPALDING, MARTIN JOHN SPALDING: AMERICAN
CHURCHMAN 221 (1973)).
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Catholicl 4 2 and liberals alike. There was a "small stream" of exiled Jesuits, as well as disappointed radicals "who carried with them a deep suspicion of ultramontane Catholicism." 143 Accordingly, American Catholics "paid close attention to the ebb and flow of European events,"'" as
did non-Catholics.
During this period, Americans expressed concern about the growing power of the Pope. Opposing the ultramontane centralization of
the Church, some American Catholics employed anti-clerical and antpapist rhetoric themselves. French Catholics in Louisiana, for example,
claimed in one instance that Irish Catholic loyalty to the tyranny of the
Pope is inconsistent with being "true Americans:"
One Creole editor accused Bishop Blanc . . . of taking the side of
"the Ultra-Montanists, against the Gallican Church" [noting] "The
Irish Catholics are, almost to a man, papists. The French Catholics
are generally anti-Papal. Hence the French Creoles of this city are
true Americans; the Papal Irish are not; and cannot be, until they abjure . . . the tyranny of the Jesuit and other orders of Papal
Priests."145
Some Louisiana Creoles even endorsed the Know-Nothing or
American Party's attack on "foreign Catholics," an endorsement noted
at the time in the Journal of the House of Representatives.14 6
One German newspaper editor in the U.S. referred to
ultramontanists as "these indefatigable enemies of democracy and enlightentment, who have stood by despotism everywhere in Europe."1 47
In 1863, Ralph Waldo Emerson declared, "When liberals of Europe
join in desiring to strip the Pope of his temporalities, they are led by a
just instinct. It is the political character of the Roman Church that
When liberal governments in Europe expelled Jesuits from Italy, Spain, Germany and
France between 1848 and 1880, a number of them immigrated to the U.S. and carried forward
their work here. Id. at 19-20. These and other "orders emphasized loyalty to the pope above
national allegiance and had frequently allied themselves with monarchies and conservative governments." Id. at 21.
143 Id. at 22.
144 Id.
145 MCGREEVY, stpra note 113, at 30 (quoting The Jesuits as Educators,SEMI-WEEKLY
CREOLE, Oct. 18, 1854).
146 Id.
147 Id. at 23 (citing Leonard G. Kroeber, Anti-Catholic Agitation in Milwaukee, 1843-1860
56-57 (1960) (unpublished M.A. thesis, Marquette Univ.)).
142
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makes it incompatible with our institutions, and unwelcome here." 4 8
In an 1864 edition of his paper, the Catholic Orestes Brownson also attacked Jesuits for their lack of loyalty to the U.S., and for their support
of "Vatican rule in the Papal States ....
Hostility to the Church often organized around the issue of slavery. A largely Protestant religious movement, Abolitionists regularly
criticized Catholics for their opposition to immediate abolition of slavery (as Irish immigrants tended to vote Democratic).so The Church's
opposition arose, at least in part, from an opposition to social disorder,
potentiated by its view of the evil done to the Church by liberal revolutions espousing the inalienable rights of man and the separation of
church and state."' Not surprisingly, Church leaders were often drawn
to those Southern social theorists who defended slavery, such as
George Fitzhugh, whose anti-individualistic, organic view of society did
not elevate above social order "private judgment, liberty of speech,
52
freedom of the press and of religion."'1
The theme of Catholicism and slavery worked its way into many
arguments. For example, the Protestant preacher Theodore Parker
drew this comparison: as the Church denies access to the Bible to its
faithful, so too do slaveholders withhold education from the slaves.' 53
While many American Catholics rallied to the Pope's side during the
Italian Risorgimento, warning of the "'anti-Christian principles' of Italian
liberals,"' 54 Orestes Bronson supported Italian unity out of fear that
"Vatican control of the Papal States would doom the pope's subjects to
'hopeless slavery.""5
The notorious Mortara affair in the Papal States received wide-
148 Glen M. Johnson, Raph Waldo Emerson on Isaac Hecker A Manuscnt with Commentary, 79
CATH. HIsT. REv. 54, 55-56 (an. 1993). Soon thereafter, a Jesuit complained in Missouri that
abolitionists and Republicans "belong indeed to the [French revolutionary] class of '93 ....
One must acknowledge that the liberalism of our young America exceeds that of its elder
brothers in Europe." McGREEVY, supra note 113, at 88 (quoting Letter from Pierre De Smet to
Edmond De Bare (Mar. 15, 1864), in LETIER PRESS BOOK D8 at 212-214, MPA, De Smetiana
Collection.
149 MCGREEvY, snpra note 113, at 89.
150 Id. at 56-66.
151 Id. at 59.
Id. at 66.
Id. at 58, 63.
154 Id. at 48.
155 McGREEvY, supra note 113, at 48 (quoting Rights of the Temporal,22 BROWNSON'S
462, 480 (1860)).
152
153
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spread attention just before the Civil War. In 1858, the Vatican's Office of Inquisition took custody of a 6-year old Italian boy, Edgardo
Mortara, from his Jewish natural parents and removed him to the
Pope's custody, on the basis of an allegation that his Catholic nurse had
secretly baptized this Jewish boy while he was sick. Protests in Europe
and America turned this into an international cause. Only three years
before the Civil War, American interest in this religious "kidnapping"
and "enslavement" reached "colossal dimensions,"'16 according to the
New York HeraldTribune, and was the subject of more than 20 articles in
The New York Times, 31 in the Balimore American, and, in the Midwest,
23 in the Milwaukee Sentinel.5 The American Catholic press defended
the Pope on the grounds that he was merely protecting the religious
liberty of a baptized child to be brought up Catholic: a baptism cannot
be undone and, in any event, the parents had violated papal law in hiring a Catholic nursemaid in a Jewish home. Abolitionists criticized the
nation's widespread concern for Mortara on the ground that American
attention should only be focused on the Slaveocracy, which, like the
Pope but on American soil, was separating children from their parents.
The American Jewish community held meetings in Boston and New
York (with more than 2000 in attendance) and urged President James
Buchanan to intervene on the boy's behalf. In response, Buchanan
wrote to a representative of the New York Jewish community that
"states rights" precluded his criticizing the Pope; because he did not interfere with the actions of "independent governments" or criticize their
treatment of their "own citizens or subjects," he would not comment
on the sovereign power the Pope wielded."' For Northerners, the parallel between Buchanan's response to the South and the Papal States
should have been obvious.
At least one paper, the Paific Methodist, framed its editorial response to the Mortara affair, not about the exercise of Catholic power,
but solely about the separation of church and state:
Civil despotism and ecclesiastical corruption always follow such a
union, whether in Papal or Protestant countries .
. .
. The tyranny
and corruption of church establishments are usually in the exact ratio of the extent to which they can use secular power to enforce
156 DAVID I. KERTZER, THE KIDNAPPING OF EDGARDO MORTARA 127 (1997).
157
Id.
158 Id.
at 124-28.
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obedience to their dogmas and decrees. The Catholic Church has
wielded more secular power, and consequently has a longer catalogue of acts of oppression to answer for. Protestants have dark
pages in their record, but it will soon become the unanimous decision of Christendom that Church and State are to be kept wholly
and forever distinct.'s5
During the Civil War, many Catholics understandably agreed with
Democrats in objecting to Lincoln's growing exercise of domestic power in the war effort.6 o But this would not have arisen entirely from a
love of civil liberties. Reports arrived from Italy that the Pope himself
sympathized with the Confederacy, believing that the Republicans were
too much like the French revolutionaries of 1789 and 1848. Indeed,
the Pope publicly wrote to American Archbishops York and Odin,
"urging a negotiated settlement" to the war, and he engaged in a "perfunctory exchange" with Jefferson Davis."' Italian nationalists used
this exchange to note the "'sympathy' between 'the great enemy of African liberty in America, and the great enemy of all liberty in Eu62
rope.""1
Following the Civil War, reformers who "traced their activist roots
to the antislavery struggle[,] ... frequently recalled Catholic hostility to"
their cause.1'6 The abolitionist William Lloyd Garrison, in a letter to
Teddy Roosevelt in 1871, made these exclusively political comments on
the unification of Italy: "The overthrow of the despotic power of the
Pope, in regard to civil liberty and the rights of conscience removes the
most formidable barrier which has ever been erected against free
thought, free speech, free inquiry, and popular institutions.' 6 4 In addition, European developments, such as the Syllabus of Errors,the Vatican
I declaration of infallibility, and the German Kulturkampf were widely
1' BERTRAM WALLACE KORN, THE AMERIcAN REACTION TO THE MORTARA CASE: 18581859 132 (1957). Korn notes that some Protestant papers also expressed concern that the Roman Catholic Church, in its doctrine and its actions, made successful conversion ofJews much
more difficult. Id. at 134-35.
160 McGREEVY, supra note 113, at 68-90.
161 Id. at 87.
162Id. at 88 (quoting letter from George P. Marsh to William H. Seward (Jan. 8, 1864), in 4
L'UNIFICAZIONE ITALIANA VISTA DAI DIPLOMATICI STATUNITENSI, 1861-1866, 219-20 (Howard
R. Marraro ed., 1971)).
163Id. at 93. The poet John Greenleaf Whittier in 1873 asserted this connection and the
Church's opposition to the abolition of slavery.
164 Id. at 100 (quoting 6 THE LETTERS OF WILLIAM LLOYD GARRISON: To ROUSE THE
SLUMBERING LAND, 1868-1879, at 185 (Walter M. Merrill & Louis Ruchames eds., 1981)).
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reported in the secular and religious press, in news accounts and editorials, throughout the United States.1"s
Continuing their reformist and modernizing program, the Republicans sought to develop and strengthen public school education."
One element of this program included the introduction in 1875 in
Congress of the Blaine amendment to, inter alia, preclude aid to reli16 7
gious schools; but, following nationwide debate, it failed to clear the
165 Id. at 99, 103; J. Ryan Beiser, The Vatican Council and The American Secular Newspapers, 1869-70 (1941) (unpublished Ph.D. dissertation Catholic University of America) (on file
with author); SEWREY, supra note 98, (discussing secular and religious press). After the Pope lost
temporal power to the Kingdom of Italy, debate in the House of Representatives about whether the U.S. should continue to maintain diplomatic relations with the Vatican included references to the Syllabus and the doctrine of infallibility. See id. at 125-26. In addition, the wellknown writings of Orestes A. Brownson offered to the American public wide-ranging commentary on many subjects. See, e.g., id. at 122. See also ISAAC J. LANDSING, ROMANISM AND THE
REPUBLIC: A DISCUSSION OF THE PURPOSES, ASSUMPTIONS, PRINCIPLES AND METHODS OF THE
ROMAN CATHOLIC HIERARCHY 72 (1890) (a critical discussion of papal pronouncements).
In fact, interest in the European Church was wide-spread and had been long-standing.
Even in the first half of the nineteenth century, there was a rich intellectual exchange of books
between France and the United States, including histories, exposes, and novels in translation,
and their reviews. They were part of a "web of books and ideas linking opponents of the
Church in France" to readers in the United States. TIMOTHY VERHOEVEN, TRANSATLANTIC
ANTI-CATHOLICISM: FRANCE AND THE UNITED STATES IN THE NINETEENTH CENTURY 36
(2010). For example, by 1844 a four volume Calvinist history of the Protestant Reformation
had sold 75,000 copies and another 24,000 were carried by colporteurs to isolated parts of the
U.S. Id. at 20. Similarly, the works of the leading republican French historian Jules Michelet
were widely translated and sold. Id. at 23-27.
166 McGREEVY, supra note 113, at 91-122.
167 These debates are a major source of the evidence used by those who assert that antiCatholic sentiment taints the Wall of Separation. See supra note 90. While acknowledging that
the concerns of Blaine Amendment proponents presented a "colorable claim" about the politics of the Church, Thomas Berg describes their claims as "overblown and distorted." Gunn &
Witte, supra note 12, at 318- 319; see also Berg, supra note 98, at 121 (discussing "how disputes
over church and state in modern America have been affected by societal attitudes toward Roman Catholicism"); infra note 195.
But "overblown" by how much Berg does not try to estimate. It is certainly appropriate to
begin with a presumption that the political views expressed by the leader of a hierarchical
church, especially one centralized, bureaucratic, and doctrinally authoritative, may be treated as
those of the Church, absent strong evidence to the contrary of consistent and widespread congregational independence in political expression and action. (Even the independent family
planning practices of Catholic women in their widespread use of contraception and abortion
are not very relevant to assessing the political position and practices of the institutional Church
on that matter).
Certainly there were efforts among some American Catholics for independence from
Rome; but these led to counter measures. For example, Pope Leo XIII in 1895 insisted to
American archbishops and bishops that separation was inconsistent with the teachings and
well-being of the Church;
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Senate. During the floor debate, senators quoted from the Syllabus of
Errors.'8 Congressman James A. Garfield worried about the "papal assault on secular schools in France and Germany."' 6 9 Ten, in the crucial 1876 November election that led to the end of Reconstruction and
its efforts to bring civil rights to the freed slaves, Garfield attributed
Democratic gains (with the aid of large numbers of immigrant Catholic
voters) to the "combined power of rebellion, [C]atholicism and whiskey. . ."; and he added "We shall have a hard, uncomfortable struggle . .
to save the fruits of the great war." 7 0
On the basis of such evidence as these examples, the Notre Dame
historian John McGreevy concludes that it was "not simply religious
bigotry" (by which he seems to mean both ethnic anti-Irish sentiment
For the Church amongst you, unopposed by the Constitution and government of
your nation, fettered by no hostile legislation, protected against violence by the
common laws and the impartiality of the tribunals, is free to live and act without hindrance. Yet, though all this is true, it would be very erroneous to draw the conclusion
that in America is to be sought the type of the most desirable status of the Church,
or that it would be universally lawful or expedient for State and Church to be, as in
America, dissevered and divorced. The fact that Catholicity with you is in good condition, nay, is even enjoying a prosperous growth, is by all means to be attributed to
the fecundity with which God has endowed His Church, in virtue of which unless
men or circumstances interfere, she spontaneously expands and propagates herself;
but she would bring forth more abundant fruits if, in addition to liberty, she enjoyed
the favor of the laws and the patronage of the public authority.
Longinqua Oceani 6, http://www.vatican.va/holy-father/leo-xiii/encycicals/ documents/hf
1-xiiienc_06011895_onginquaen.html. This was "a clear repudiation of the liberal,
Americanist position...."JAY P. DOLAN, IN SEARCH OF AN AMERICAN CATHOLICISM: A
HISTORY OF RELIGION AND CULTURE IN TENSION 107-08 (2002).
In assessing how "overblown" claims were, there is not only the question of how widespread are independent beliefs and practices but how long such new beliefs have been publicly
expressed and instantiated in the practices and institutions of a church. See, e.g., infra note 231.
And after those changes have been established, there is the further question of how long it
should take others outside a church to recognize them as effective. The Church did not change
the positions discussed here until Vatican II; with respect to externally recognizing the changes
of Vatican II as relatively enduring, see text infra at note 251.
168 See Berg, in Gunn & Witte, supra note 12, at 307, 318 (noting that Senators Oliver Morton
and George Edmunds read from the Sjyllabus of Errorsand that Morton described the Church as
aiming at, inter alia, the domination of public education, and as believing that it "is the duty of
a well-ordered state to teach in its public institutions the particular tenets of a particular denomination").
169 McGREEVY, supra note 113, at 99.
170 Id. at 93 (quoting 1 THEODORE CLARKE SMITH, THE LIFE AND LETTERS OFJAMES ABRAM
GARFIELD 613 (1925)).
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and hostility to Catholic beliefs by the American heirs of seventeenth
century Protestant dissent)"'7 that led to criticism of the Church. He
offers the example of the Reverend Arthur Buckminster Fuller, pastor
of a Unitarian Church in Boston, who reminded his congregation before the Civil War that the Church had been a "primary force for reaction in the European revolutions of 1847 and 1848",172 and in the United States. As Fuller put it:
[I1n our own land, Romanism allies itself with every false and antirepublican institution which is yet tolerated in our glorious country. .
. . Intemperance and slavery would quickly be overcome if Romanism ceased to exert her influence to uphold them both . . . .
"[Should Catholics achieve political power in the United States]. . ."
[o]ur national government, now so fearfully subservient to the
shameful slave power, would then be no less under the dominion of
a standing army of priests and friars.'
7 3
McGreevy observes, "[p]olitical liberty (the individual voter), material prosperity (the individual economic actor in a free market), and
intellectual progress (thinking on one's own) all seemed at risk."174
In turning from the generation that framed the Fourteenth
Amendment and considered the Blaine amendment to the twentieth
century and the world of Hugo Black, Hamburger claims that Everson's
Wall of Separation opinion was the work of a justice raised on the
KKK's anti-Catholic hatred and its related nativist ideological commitment to the Wall of Separation.17 As is well known, when Black was
already a successful Birmingham lawyer he joined the KKIK in 1923,
and remained a member at least until beginning his successful campaign
for the Senate in 1926.16 One biographer attributes his Klan membership to his political ambitions combined with his lack of support from
Id.at 11.
Id. at 13.
173 Id. at 9, 11 (quoting ARTHUR BUCKNUNSTER FULLER, HOSTILITY OF ROMANISM TO CIVIL
AND RELIGIOUS LIBERTY (1859)).
171
172
174
Id. at 13.
175 See HAMBURGER, supra note 86, at 422-23 ("Black had long before sworn, under the light
of flaming crosses, to preserve 'the sacred constitutional rights' of 'free public schools' and
'separation of church and state.' Subsequently, he had administered this oath to thousands of
others . . . . Black in 1947 led the Court to declare itself in favor of the 'separation of church
and state").
176 HOWARD BALL, HUGO L. BLACK: COLD STEEL WARRIOR 60-62 (1996); ROGER K.
NEWMAN, HUGO BLACK: A BIOGRAPHY (2d ed. 1997).
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THE STRUCTURAL WALL
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the elite "Bourbon Democrats," given his poor to middling origins,
populist beliefs, and legal practice (representing unions and suing corporations on behalf of poor and middle class clients).'
Some additional evidence from this time also links him to anti-Catholic issues in
his Alabama "hotbed" of anti-Catholicism.17 1
However, there is no claim that seeks to link any of Black's work
as a justice, other than his Wall of Separation Everson opinion (and its
progeny), to Klan ideology and prejudice. Klan prejudice against African Americans certainly did not predict Black's civil rights opinions, not
even his early 1940 opinion in Chambers v. Florida"' in which the Court
reversed a southern state criminal conviction of an African American.
More relevant in Everson's 5-4 vote, Black voted to authorize, rather
than to deny, busing aid to parochial school students; nor can Klan
membership explain the vote of the other eight justices (including one
Catholic) in Everson embracing the Wall of Separation. In Griswold v.
Connecticut,Justice Black was one of two dissenters, finding no right of
privacy to overturn a law that the Catholic hierarchy in Connecticut had
long helped protect from repeal.so Finally, despite personal concern
BALL, supra note 176, at 60. Black himself not surprisingly always minimized his involvement with the Klan. In a late-life interview in 1967 with The New York Times, for example, he
claimed he joined to further enhance his standing with juries and other lawyers. Justice Black Dies
at 85; Served on Court 34 Years, N.Y. TIMES, Sept. 25, 1971 at Al (obituary).
178 HAMBURGER, supra note 86, at 423-25; NEWMAN, supra note 176, at 104 (noting without
details that Black delivered some anti-Catholic speeches during the 1926 election); id. at 74
(quoting The Nation in describing Alabama as a "hotbed of anti-Catholic fanaticism").
Moreover, two years before he joined the Klan, Black was hired as counsel (along with
three lawyers who were Klan members, including his law partner) to defend a Protestant minister (who was a KKK member) prosecuted for murder. In daylight, the minister had killed a
priest who, on that very day, had hurriedly performed the marriage of the minister's daughter to
a Puerto Rican Catholic young man. It is no easy task to disentangle the defendant's religious,
racial, ancestral, and class bigotry from the more personal outrage, in a violent and honor-based
culture, of a father disobeyed in the matters of whom his daughter would marry, in what
church, and who would officiate (as the defendant supported his family by performing marriages at city hall). While Black effectively played a variety of emotional chords, including racial and
religious prejudice, in his zealous representation, he did so before he was a Klan member and it
is unclear what the personal meaning of this representation was to him. DAVIES, supra note 97;
see also NEWMAN, supra note 176, at 71.
179 309 U.S. 227 (1940). Black also voted to reverse Father Terminiello's conviction. See infra
note 189.
180 381 U.S. 479 (1965). Nor did Black join Justice White's opinion finding the law arbitrary
and capricious, in effect suggesting that a prohibition on the use of contraceptives within marriage is not based in reason, contrary to the teachings of the Church. See generally DAVID J.
GARROW, LIBERTY & SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V'. WADE
(1994) (tracing the origins of abortion jurisprudence).
177
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about tax exemptions for at least some church property, he joined the
majority opinion, and not Justice Douglas' dissent, in upholding the
New York tax exemption in Waal' v. Tax Commission."'
Nor is it evidence of prejudice that, sometime after writing Everson,
Justice Black carefully read, and re-read, Paul Blanshard's American Freedom and Catholic Power, which was in such demand, as a Book-of-theMonth-Club selection, that it went through multiple printings and two
editions.18 2 Today commentators, with no analysis, label it as "an antiCatholic tract[]"3 because of its critical and hostile tone. This book
examined the American Church institutionally across a range of important public issues, including: biomedical ethics in Catholic hospitals
(the subject that first led Blanshard to his study); birth control and sterilization; abortion; marriage, divorce and annulment; free speech and
181397 U.S. 664 (1970). For Black's personal views, see his son's remarks in HUGO BLACK,
JR., MY FATHER: A REMEMBRANCE (1975). By 1968, three years before his death, the agingJustice Black expressed himself intemperately on various subjects in several opinions, see, e.g.,
Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 516 (1969) (Black, J dissenting), including language about the Church. See Bd. of Educ. of Cent. Sch. Dist. v. Allen, 392 U.S. 236, 251
(1968) (Black, J., dissenting) (referring to proponents of religious school aid as "powerful sectarian religious propagandists ... looking toward complete domination and supremacy of their
particular brand of religion"). His point was that more powerful religious groups could well win
financial support in the legislature and approval of sectarian-themed textbooks in the administrative process.
182 PAUL BLANSHARD, AMERICAN FREEDOM AND CATHOLIC POWER (2d ed. 1958). For
Black's reading of this book, see BLACK,JR., supra note 181, at 104. ("He used to read all of Paul
Blanshard's books exposing power abuse in the Catholic Church. He thought the popes and
bishops had too much power and property. He resented the fact that rental property owned by
the Church was not taxed; he felt they got most of their revenue from the poor and they did
not return enough of it. But even then his favorite district judge was a man who had been a
bishop's lawyer. Defender of a bishop's property, defender of the Church's exemption-but to
Daddy this man was one of 'the best district judges in America, because he is one of the best
human beings in America"). Many of the issues Black's son identified are populist as much as
religious.
183 See, e.g., NEWMAN, supra note 176, at 521; see also PHILIP JENKINS, THE NEW ANTICATHOLICISM: THE LAST ACCEPTABLE PREJUDICE (2003); i BILL DONOHUE, SECULAR
SABOTAGE: How LIBERALS ARE DESTROYING RELIGION AND CULTURE IN AMERICA 119-20
(2009) (calling Blanshard's book a "hate-filled book" and "rubbish").
To understand Blanshard's more broad-brushed epithets and sometimes conspiratorial
view of the Vatican, as well as his concern for American unity on the home front, one must
recall that his book, published in 1949, derived from articles he wrote for The Nation in 1947-48.
The country was then just emerging from the world-wide struggle against fascism and the history of the 1930s was still fresh. At the same time, some were proposing a new understanding of
the era based on a contrast between an "open society" and totalitarian anti-democratic regimes
of the right and left that impose, interalia, severe restrictions on freedom of speech, conscience,
and association and intrusive supervision of the privacies of life.
THE STRUCTURAL WALL
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censorship; boycotts and labor; public funding of parochial schools;
ecumenicism, and separation of church and state. The political subjects
the book studies would appropriately have been of great interest to a
voracious reader and judge, like Black, charged with interpreting the
Constitution.
By the time Black had joined the Court in 1937, Americans saw an
established European Church that not only had been in league with
nineteenth century monarchs resisting liberal revolutions but was now
supporting and reaching concordats with fascist powers in Europe,
with echoes in South America.'84 By then, American Catholics were defending the Franco regime, and attacking those (in the press and the
movies) who portrayed Franco and his established Church in a negative
light.' With respect to Italy, there is evidence that the Vatican encouraged the Church in the United States (and in Ireland) to support the
Italian invasion of Ethiopia; certainly, large scale support and demonIn his weekly
strations came from Italian-American communities.'
radio broadcasts, Father Charles Coughlin vocally opposed calls for the
U.S. to enforce the League of Nations' sanctions against Italy for its
Ethiopian war." With his increasingly virulent anti-Semitism and the
"sometimes violent behavior of his 'Christian Front' followers," Father
Coughlin continued to "alert[] liberals to the fascist potentialities of his
influence."' Thus, in the press Reinhold Niebuhr concluded that "the
184 See, e.g., FEDERICO FINCHELSTEIN, THE IDEOLOGICAL ORIGINS OF THE DIRTY WAR:
FASCISM,
POPULISM, AND
DICTATORSHIP IN
TWENTIETH CENTURY
ARGENTINA
(2014);
FEDERICO FINCHELSTEIN, TRANSATLANTIC FASCISM: IDEOLOGY, VIOLENCE, AND THE SACRED
IN ARGENTINA AND ITALY, 1919-1945 (2010); THE ARGENTINE RIGHT: ITS HISTORY AND
INTELLECTUAL ORIGINS, 1910 TO THE PRESENT (Sandra McGee Deutch & Ronald H. Dolkart
eds., 1992).
15 See GEORGE SELDES, THE CATHOLIC CRISIs (1939).
186 See KERTZER, supra note 95, at 223, 461 nn. 26 & 28. When in 1936 the Jesuit magazine
America criticized the invasion of Ethiopia, the Vatican director of the Jesuits replaced the journal's editor of eleven years, a "bitter foe" of Coughlin, with "a Coughlin supporter and Fascist
booster." Id. at 233-35, 462 n. 34.
187See id. at 224-25, 233, 457-58 n. 43.
188 Philip Gleason, American Catholics and Liberalism 1789-1960, in CATHOLICISM AND
LIBERALISM: CONTRIBUTIONS TO AMERICAN PUBLIC PHILOSOPHY, supra note 106, at 45, 61. See
also FDR, THE VATICAN, AND THE ROMAN CATHOLIC CHURCH IN AMERICA, 1933-1945 (David
B. Woolner & Richard G. Kurial eds., 2010).
In 1949, Black joined Douglas' opinion to reverse, on free speech grounds, the conviction
of a then-suspended Catholic priest from Birmingham (known as "the Father Coughlin of the
South") for breach of the peace during his rabble-rousing speech, linking anti-communist, antiNew Deal and anti-Semitic themes. Terminiello v. Chicago, 337 U.S. 1 (1949) (5-4 decision); see
generally A.W. TERMINIELLO PAPERS, UNIVERSITY OF NOTRE DAME ARCHIVES, http://archives.
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Catholic Church has cast its lot with fascistic politics," and Lewis Mumford regretted that "the Church has chosen to ally itself with democracy's chief enemy, fascism."189
Even if the European struggles to disestablish an established
Church that was often aligned with undemocratic European regimes
made for political battles and hostilities not directly analogous to American politics at home in the view of some, they nonetheless offered
convincing evidence to many of the wisdom of the American experiment in separation. Far from being shameful, as Justice Thomas would
have us believe, the view that separation is the best understanding of
the Establishment Clause is part of America's proud history of popular
liberal democratic constitutionalism.
IV. VATICAN II AND THE OVERLAPPING CONSENSUS
While the claim of anti-Catholic bigotry tainting the Wall of Separation fails, a different argument, more plausible and more consistent
with the concerns of the Establishment Clause, was available to Justice
Thomas in Mitchell v. Helms to support certain programs of aid to religious schools.' This section will sketch that argument, although in my
judgment even this proposed account cannot justify Helms or displace
the virtues of the no-aid principle in furthering the structural elements
of separation discussed in Section I.
Brown v. Board of Education identified the essential functions education performs in preparing children for participation in civil society and
as citizens of the Republic."'
The Court has characterized these func-
tions as public and political in nature. Thus in Ambach v. Nonich,'9 2 the
Court upheld New York's exclusion of non-citizens from public em-
nd.edu/findaids/ead/index/TRMOOl.htm (finding aid).
189 McGREEVY, supra note 113, at 173 (quoting Reinhold Niebuhr, The Catholic Herey,
CHRISTIAN CENTURY, Dec. 8, 1937, at 1524; Lewis Mumford, Call to Arms, NEW REPUBLIC,
May 18, 1938, 39, at 41). See also John T. McGreevy, Thinking on One's Own: Catholism in the
Ameican IntellectualImagination1928-1960, 84 J. AM. HIST. 97 (1997).
As late as 1940, MacMillan Press published a book in the U.S. co-authored by an economically liberal Catholic theologian and New Deal supporter, John Ryan, which indicated that Catholicism still favored religious toleration only when its minority status prevented its establishment, and noting, for example, that Spain and Columbia restricted Protestant proselytizing. See
JOHN A. RYAN & FRANCISJ. BOLAND, CATHOLIC PRINCIPLES OF POLITICS (1940).
190 530 U.S. 793 (2000).
191347 U.S. 483 (1954).
192
441 U.S. 68 (1979).
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THE STRUCTURAL WALL
227
ployment as teachers because the "public function" of teachers goes
"to the heart of representative government" in a republic.'
Schools
prepare "our posterity" for self-governance, democratic participation
and representative leadership.' 94
In Europe as well, by the second half of the nineteenth century,
republican governments had at least begun to develop a public educational system to prepare the next generation of citizens for civic and
democratic life. While the United States emphasized separation, European disestablishment often involved the transfer of schools previously
under church control to public control, as noted in Section 111.195 This
Id. at 75-77, 85-86. As Justice Powell explained, in addition to serving as an "assimilative
force," education prepares individuals for "participation as citizens, and in the preservation of
the values on which our society rests." Id. at 77, 85-86. The public function of education was
clear to Justice Frankfurter as well. See McCollum v. Bd. of Ed. of Sch. Dist. No. 71, 333 U.S.
203, 212 (1948) (Frankfurter, J. concurring).
194 Thomas Berg's discussion of the Blaine Amendment does not explore education as a
public function. Reiterating a claim of Jeffries and Ryan, Berg asserts that the discriminatory
nature of the proposed Blaine Amendment was plain in its gerrymandering of benefits and burdens: it left the states free to support Protestant charitable activities, which were in abundance,
while denying funds to the Church's elaborate parochial school system (without effect on
Protestants who enjoyed a public school system imbued with a "nonsectarian" Protestantism).
See Berg, in Gunn & Witte, supra note 12, at 321-22.
But a distinction between training a new generation and the provision of charity is not only reasonable, but fundamental. Unlike charity, education in a modern state requires the transmission of public values to our posterity. New York, as early as 1831, implemented the distinction between the public function of schools and the private nature of charity when public funds
to a Methodist school were denied although funds had been approved for a Catholic Orphan
Asylum. See Steven Green, The 'Second Disestablishment".The Evolution of Nineteenth Centuy Understandings of Separation of Church and State, in Gunn & Witte, supra note 12, at 280, 296. That a
commitment to a public school system in the United States, of which the proposed Blaine
Amendment is an example, roughly coincided with mass immigration of Catholics does not
reflect cause and effect.
With the Supreme Court majority's move from separationism to "neutrality," its doctrine
of true private choice or neutral classification can efficiently decide claims involving both educational funding and charitable choice, as if they involved the same issue. But these doctrines
elide the fact that education and charity are entirely different social functions. For a case of
charitable choice, see, e.g., Bowen v. Kendrick, 487 U.S. 589 (1988); cf Bradfield v. Roberts, 175 U.S.
291 (1899) (upholding Washington DC funding of Catholic hospital building for indigent care).
195 In addition to the struggle to make education a public function, European disestablishment involved three other common sites of strenuous contention: (1) disentangling of the overlapping of sacraments with life-cycle events, in which clerics held a medieval monopoly over
the social regulation of marriage, cemeteries and burial, and birth registries (including naming
and baptism); (2) the expropriation and distribution of church property amassed over the centuries of state establishment; and (3) reclaiming a public space for public discourse. See
CULTURE WARS, supra note 2.
This history also shows that disestablishment is implemented, at least in the first instance,
193
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wresting of education from the Church occurred in a series of stark political battles that were sometimes interrupted by the temporary ascendancy of authoritarian or fascist regimes that ceded back to the Church
some control over education in Italy, Spain, Portugal, Austria (briefly
under Dolfuss) and France (under P6tain). These concurrent movements in democracies suggest a transnational judgment about education
as a public function.
The constitutional question, after Helms and Zelman v. SimonsHais' should be: to what extent can education be publicly funded
but partly or wholly privatized without leaving the educational system
denatured of its public values and public function. Even if they educate
on secular subjects, would publicly-funded religious schools sufficiently
serve a public function in our Republic?m7
This inquiry involves reviewing not a history of American prejudice but a different historical moment-a constitutional moment-of
the Church. The Ecumenical Council, Vatican II, summoned by Pope
John XXIII and meeting in Rome from 1962-65, redefined the nature
of Catholic school education, creating in it the capacity to go some distance towards serving the public function of a liberal democratic education. This is the historical context in which the Court has recently interpreted what separation means with respect to aid to religious
schools.
by non-neutral rules. Because the United States never had a strong establishment during a feu
dal period, an extensive expropriation of church wealth (other than during the Revolution) never occurred in this country and this avoided one set of "non neutral" rules. See Michael Walzer,
Liberalism and the Art of Separation, in THINKING POLITICALLY: ESSAYS IN POLITICAL THEORY 60
(David Miller ed., 2007) ("[E]stablished churches were socialized, that is, turned over to their
participants."). See generaly HARTZ, supra note 62.
196 536 U.S. 639 (2002).
197 Until now, the Court has primarily (though not exclusively) reviewed school funding
programs in which some special public purpose has led the state to depart from the American
system of publicly funded primary and secondary education: for example, when a particular
public school system is failing poor children who cannot afford alternatives as in Zelman; or
when a state affords a particular secular service to a vulnerable population (such as the disabled)
who may attend public or private school. See Zobrest v. Catalina Foothills School District, 509
U.S. 1 (1993). It remains to be seen whether the holding in Helms and Zelman would permit a
state to reorganize its important state function of educating children by privatizing the entire
system with a voucher scheme, knowing the consequence for aid to religion.
To use a different example: could states eliminate publicly-operated polling places in elections in favor of a systematic contracting with churches (and other private associations) to provide voting booths, just as some states contract for charitable functions (such as child placement).
THE STRUCrURAL WALL
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A.
229
Religious Schools: Civic Education
All Catholic school and university teaching was to be pervasively
guided by the teachings of St. Thomas Aquinas, according to the nineteenth-century Church. In Aeterni Patris, On the Restoration of Christian
Philosophy (1879), Pope Leo XIII taught that Catholic education, both
schools and seminaries, should adhere to the religious requirement that
the work of St. Thomas be the basis of all Catholic education. This involved more than a commitment to keen rational inquiry:
[31] ... Let carefully selected teachers endeavor to implant the doctrine of Thomas Aquinas in the minds of students, and set forth
clearly his solidity and excellence over others .
. .
. [29] For, the
teachings of Thomas on the true meaning of liberty, which at this
time is running into license, on the divine origin of all authority, on
laws and their force, on the paternal and just rule of princes, on
obedience to the higher powers, on mutual charity one toward another-on all of these and kindred subjects-have very great and invincible force to overturn those principles of the new order which are
well known to be dangerous to the peaceful order of things and to
public safety. 98
Accordingly, Leo XIII rejected the freedom of teachers to design
their own curricula in favor of the "restoration of philosophic discipline
which We have proposed."1 99 A curriculum set in Rome, a limitation
upon individual teacher variation, and an a prioriand all-encompassing
commitment to the premises of St. Thomas (born 1225 and died 1274)
contributed to a parochial school education that was the "pervasively
sectarian" education to which McNair" and Justice Thomas refer.
Only a few years before McNair,Vatican II again made clear-and
who could possibly doubt it-that Catholic schools, if no longer centrally driven by Thomistic philosophy, are still principally imbued with a
religious mission to train those baptized in Christ. The Council's
Gravissimum Educationis, On ChristianEducation, states:
(8) Catholic Schools[:]
.
.
. But its proper function is .
.
. to help
198 Pope Leo XIII, Aeterni Patris (Encyclical Letter on the Restoration of Christian Philosophy),
29, 31 (Aug. 4, 1879), available at http://www.vatican.va/holy_father/leo-xiii/encyclica
Is/documents/hf_1-xiiienc_04081879_aeterni-patrisen.html.
199 Id.
200 Hunt v. McNair, 413 U.S. 734 (1973).
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youth grow according to the new creatures they were made through
baptism ... and finally to order the whole of human culture to the
news of salvation so that the knowledge the students gradually acquire of the world, life and man is illumined by faith.
(2) Christian Education[:] ... A Christian education ... has as its
principal purpose this goal: that the baptized, while they are gradually introduced [into] the knowledge of the mystery of salvation, become ever more aware of the gift of Faith they have received, and
that they learn in addition how to worship God the Father in spirit
and truth (cf. John 4:23) especially in liturgical action, and be conformed in their personal lives according to the new man created in
justice and holiness of truth (Eph. 4:22-24); also that they develop
into perfect manhood, to the mature measure of the fullness of
Christ (cf. Eph. 4:13) and strive for the growth of the Mystical
Body; moreover, that aware of their calling, they learn not only how
to bear witness to the hope that is in them (cf. Peter 3:15) but also
how to help in the Christian formation of the world ....
1
The Catholic religious mission is to teach those already bapi ed "to strive
for the growth of the Mystical Body," that is the Roman Catholic
Church, through which the faithful are joined together with Christ, via
the sacrament of the Holy Eucharist, in the mystery of salvation.202
Yet Vatican II departed from Aetemi Patris in its commitment to
prepare children as well for living in a religiously plural civil society.
Gravissimum Educationis provides for this civic purpose, without reference to a pervasive religiously-defined point of view:
[8] .. . No less than other schools does the Catholic school pursue
cultural goals and the human formation of youth.... [5] [School]
... is designed not only to develop with special care the intellectual
faculties but also to form the ability to judge rightly, to hand on the
cultural legacy of previous generations, to foster a sense of values, to
prepare for professional life. Between pupils of different talents and
backgrounds it promotes friendly relations and fosters a spirit of
mutual understanding; and it establishes as it were a center whose
work and progress must be shared together by families, teachers, associations of various types that foster cultural, civic, and religious
Gravissimum Educationis, supra note 83, at
2, 8.
G. H. Joyce, Mytical Body of the Church, in 10 CATH. ENCYC. 663 (Charles G. Herbermann
et al. eds., 1911), available at http://www.newadvent.org/cathen/10663a.htm.
201
202
THE STRUCTURAL WALL
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231
life, as well as by civil society and the entire human community.203
Accordingly, Vatican II committed Catholic schools to prepare
children in secular subjects for life in a modern society. As such, public
financial support of Church schools could obtain public value in the
teaching of secular subjects. But could such schools also engage in the
additional essential public function, identified in Ambach, of preparing
students to be citizens of a liberal democratic constitutional regime?
B.
Religious Schools: Liberal DemocraticEducaion04
In response to the world catastrophes of war and totalitarianism,
on Christmas Eve 1944 in a world-wide radio address, Pope Pius XII
admitted that, "[t]aught by bitter experience, people today more and
more oppose monopolies of power that are dictatorial, accountable to
no one ....
They want a system of government more compatible with
the dignity and the liberty due to citizens."205 Accordingly, "the future
belongs to democracy." 206 The historian John O'Malley observed that
this "was the first time in history that a pope had publicly and at length
praised democracy. ... 207 And, indeed, in the succeeding twenty years,
Catholic politicians led the democracies of Germany, France, Italy, and,
by 1961, the United States.
But the key event in this new era was Vatican II. It adopted for
the Church what can be described as a set of liberal and democratic
constitutional principles via a set of constitutions, declarations, and
edicts that Pope Paul VI then promulgated.2 08
203 Gravissimum Educationis, spra note 83, at 11 5, 8. The Council further provides:
"Therefore the Church esteems highly those civil authorities and societies which, bearing in
mind the pluralism of contemporary society and respecting religious freedom, assist families so
that the education of their children can be imparted in all schools according to the individual
moral and religious principles of the families." Id. at 7.
204 See generally AMY GUTMANN, DEMOCRATIC EDUCATION (1999); JOHN RAWLS, POLITICAL
LIBERALISM, supra note 59, at 199-200; Stephen Macedo, Transformative Constitutionalism and the
Case of Rekgion: Defending the Moderate Hegemony of Liberalism, 26(1) POL. THEORY 56 (1998); Stephen Macedo, Liberal Civic Education and Religious Fundamentalism: The Case of God v. John Rawls?,
105(3) ETHICS 468 (1995).
205 O'MALLEY, WHAT HAPPENED, supra note 107, at 83 (quoting 37 ACTA APOSTOLICAE
SEDIS: COMMENTARIUM OFFICIALE 10-22 (1945)).
206 Id. (quoting 37 ACTA APOSTOLICAE SEDIS: COMMENTARIUM OFFICIALE 10-22 (1945)).
Id.
208 The Council acted on these issues through one of its three declarations: Dignitatis
Humanae (On Religious Freedom) (now considered as important as the Council's nine decrees), as
interpreted in light of the Four Constitutions, most directly Gaudium et Spes (On the Church in
207
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The Council endorsed democratic government by the people in
Gaudium et Spes- "the choice of a political regime and the appointment
of rulers are left to the free will of citizens .
.
. All citizens, therefore,
should be mindful of the right and also the duty to use their free vote
to further the common good." 209
The Council endorsed a regime of individual liberty of conscience.
Its Declaration on Religious Freedom, Dignitatis Humanae, affirms as a core
principle of the Church the dignity of the human conscience and the
autonomy that dignity requires:
The truth cannot impose itself except by virtue of its own truth, as it
makes its entrance into the mind at once quietly and with power.
the Modern World), availableat, along with other documents from Vatican II,
http://www.vatican.va/archive/hist-councils/iivatican council/index.htm.
These changes at the Council were concurrently reflected in papal pronouncements.
Shortly before his death, Pope John XXIII issued Pacem in Tenris which endorsed human rights
including freedom of speech and of the press, and "the right of being able to worship God in
accordance with the right dictates of one's conscience and to profess one's religion both in private and in public." O'MALLEY, WHAT HAPPENED, supra note 107, at 165 (quoting Pope John
XXIII, Pacem in Teris (Encyclical Letter on Establishing Universal Peace in Truth, Justice, Charity, and Liberty), T 14 (Apr. 11, 1963) available at http://www.vatican.va/ holyfather/johnxxi
ii/encycicals/documents/hfj-xxiiienc_1 1041963_pacem.en.html). Pope Paul VI reiterated
the call for religious liberty and the cooperation of all in seeking peace in his address to the
United Nations on October 4, 1965. Id. at 262-63. In addition, Pope Paul VI ended the List of
Prohibited Books in 1966. See NORMAN TANNER, NEW SHORT HISITORY OF THE CATHOLIC
CHURCH 178 (2011). Following Vatican II, the Church championed democratic constitutionalism in Latin and South America, see Sigmund, Catholicism and Liberal Democray, supra note 106,
at 233-39, and in various debates enriched democratic political theory.
209 Gaudium et Spes, supra note 56, at
75. Gaudium et Spes endorses democracy:
It is clear, therefore, that the political community and public authority are founded
on human nature and hence belong to the order designed by God, even though the
choice of a political regime and the appointment of rulers are left to the free will of
citizens.
. . . It is in full conformity with human nature that there should be juridico-political
structures providing all citizens in an ever better fashion and without any discrimination the practical possibility of freely and actively taking part in the establishment of
the juridical foundations of the political community and in the direction of public affairs, in fixing the terms of reference of the various public bodies and in the election
of political leaders. (5) All citizens, therefore, should be mindful of the right and also
the duty to use their free vote to further the common good.
Id. at $ 74-75.
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233
This Vatican Council declares that the human person has a right to
religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups
and of any human power, in such wise that no one is to be forced to
act in a manner contrary to his own beliefs, whether privately or
publicly, whether alone or in association with others, within due limits . . . . [of a] just public order.
. . . The right to religious freedom has its foundation in the very
dignity of the human person as this dignity is known through the
revealed word of God and by reason itself .
.
.. This right of the
human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a
civil right.
. . . [T]he right to this immunity continues to exist even in those
who do not live up to their obligation of seeking the truth. . . .210
This individual right, in turn, authorizes a right of religious associations to engage in discourse with others and free exercise (including
proselytizing), not just in private but in public, and the right of the
Church to autonomy from government regulation.211 Gaudium et Spes
Second Vatican Council, Pope Paul VI, Declaradon on Religious Freedom (DignitatisHumanae)
1-2 (Dec. 7, 1965), availableat http://www.vatican.va/archive/hist-councils/ii-vatican-co
uncil/documents/vat-iidecl_19651207 dignitatis-humanae en.htrnl [hereinafter Dignitatis
Humanae].
211 Dignitatis Humanae states:
210
The freedom or immunity from coercion in matters religious which is the endowment of persons as individuals is also to be recognized as their right when they act in
community. Religious communities are a requirement of the social nature both of
man and of religion itself.
Provided the just demands of public order are observed, religious communities rightfully claim freedom in order that they may govern themselves according to their own
norms, honor the Supreme Being in public worship, assist their members in the practice of the religious life, strengthen them by instruction, and promote institutions in
which they may join together for the purpose of ordering their own lives in accordance with their religious principles.
Religious communities also have the right not to be hindered, either by legal
measures or by administrative action on the part of government, in the selection,
training, appointment, and transferral of their own ministers, in communicating with
religious authorities and communities abroad, in erecting buildings for religious purposes, and in the acquisition and use of suitable funds or properties.
Religious communities also have the right not to be hindered in their public teaching
and witness to their faith, whether by the spoken or by the written word. However,
in spreading religious faith and in introducing religious practices everyone ought at all
times to refrain from any manner of action which might seem to carry a hint of coer-
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affirms that "[t]he Church and the political community in their own
fields are autonomous and independent from each other." 212
She has no fiercer desire than that in pursuit of the welfare of all she
may be able to develop herself freely under any kind of government
which grants recognition to the basic rights of person and family, to
the demands of the common good and to the free exercise of her
own mission.213
And DignitatisHumanae further notes: "[A] harmony exists between
the freedom of the Church and the religious freedom which is to be
recognized as the right of all men and communities and sanctioned by
constitutional law." 214 The independence of the Church and freedom
from state coercion, not the Church's political authority, is central. For
Jesus "refused to be a political messiah, ruling by force." 2 15
DignitatisHumanae, accordingly, accepts (though does not mandate)
a separation of church and state. It describes establishments as arising
due to historicaly contingent political (not religious) circumstances that led
to corporatist recognition or special status of religious sects.216 But
cion or of a kind of persuasion that would be dishonorable or unworthy, especially
when dealing with poor or uneducated people.
Id. at
212
213
214
4.
Gaudium et Spes, supra note 56, at 76.
Id. at142.
Dignitatis Humanae, supranote 210, at $ 13. It also provides:
In turn, where the principle of religious freedom is not only proclaimed in words or
simply incorporated in law but also given sincere and practical application, there the
Church succeeds in achieving a stable situation of right as well as of fact and the independence which is necessary for the fulfillment of her divine mission.
This independence is precisely what the authorities of the Church claim in society.
(34) At the same time, the Christian faithful, in common with all other men, possess
the civil right not to be hindered in leading their lives in accordance with their consciences.
Id.
Id. at 11.
Murray, Issue of Church and State, supra note 56, at 594-96. Rejecting efforts to amend the
Declaration to make establishment a matter of principle owed to the true Church, the Council
characterized establishments as historical choices made by particular peoples, not a principle or
doctrine of the Church or matter of historical right; and it required that any such establishment
not limit the equal religious freedom of all other persons. Similarly, the Council recognized the
historically contingent nature of the Church's establishment and noted that the Church might
renounce the privileges of establishment where useful to prove her disinterestedness. Id. at 605
215
216
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even in such historically contingent circumstances, freedom of conscience, as conceived in DignitatisHumanae, requires non-preferentialism: if any special status is granted, it must be extended to all. As
DignitatisHumanae states:
If, in view of peculiar circumstances obtaining among peoples, special civil recognition is given to one religious community in the constitutional order of a society, it is at the same time imperative that
the right of all citizens and religious communities to religious freedom should be recognized and made effective in practice. 217
Thus, the consequences of a special status may well become nonexistent.
The Council voiced reservation to the strong no-aid principle of
the Wall of Separation. The Council's support for state aid, however, is
not based on a claim of religious truth; rather its claim is limited to state
support that serves a common (secular) good, and therefore it must be
consistent with civil peace, individual dignity, and freedom of conscience:
Government therefore ought indeed to take account of the religious
life of the citizenry and show it favor, since the function of government is to make provision for the common welfare. However, it
would clearly transgress the limits set to its power, were it to presume to command or inhibit acts that are religious.218
John Courtney Murray, for one, suggested that the state fulfilled its
support obligation simply by protecting freedom of conscience.21 '
(quoting Gaudium et Spes, supra note 56, at 76). Thus, an amendment, stipulating that the
acceptance of religious freedom was a response to a "fundamental condition" (e.g. pluralism)
rather than to a "fundamental principle" based on the dignity of the person because he or she
possesses a free conscience, was rejected. Id. at 588.
217 Dignitatis Humanae, supra note 210, at
6. It continues, "[flinally, government is to see
to it that equality of citizens before the law, which is itself an element of the common good, is
never violated, whether openly or covertly, for religious reasons. Nor is there to be discrimination among citizens." Id.
218 Id. at 13.
219 Murray, Issue of Church and State, supra note 56, at 598. An additional half sentence was
added in the last draft: "Government, whose proper function is to care for the common temporal good, ought indeed to recognize the religious life of its citizens and to favor it." Id. at 597
(quoting Dignitatis Humanae, supra note 210, at 3). Murray interprets this to mean, in light of
the entire document, that government protects the good of religion by securing conditions of
freedom: "This duty of service is discharged by service rendered to the freedom of religion in
society. It is religion itself, not government, which has the function of making society reli-
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A concomitant of these positions was a changed attitude, welcoming and inclusive, to other religions. 220 Gaudium et Spes set the tone by
addressing itself to "all persons of good will." 2 2 1 It embraced the pluralism, including the religious pluralism, that characterizes the modern
world:
Respect and love ought to be extended also to those who think or
act differently than we do in social, political and even religious matters. In fact, the more deeply we come to understand their ways of
thinking through such courtesy and love, the more easily will we be
able to enter into dialogue with them.222
Focusing not on their error, the Council of "the one true Church"
instead acknowledged not only the rights of all believers, 223 but also the
value of different religious traditions. The value arises because they
embody the religious strivings of individual consciences towards God
and truth; and it arises from the historic relations between the Church
and the truth of these various efforts.22 4
gious." Id at 598.
220 Pope John XXIII signaled a change at the very beginning of the Council when he extended "a renewed cordial invitation to the faithful of the separated communities to participate
with us in this quest for unity and grace . . . ." O'MALLEY, supra note 107, at 17 (quoting ACTA
ET DOCUMENTA CONCILIO OECUMENICO VATICANO II APPARANDO, SERIES PRIMA I, 3-6, at 6).
O'Malley notes that this was not a request to other Christian churches "to return" to the
Church, but instead "to participate" with it. This was a substantial departure from the earlier
papal policy of avoiding ecumenical encounters, a policy that Pope Pius XI, in MortalimAnimos
(1928) and Pope Pius XII, in Humani Generis (1950), had strongly reaffirmed. Id. at 17-18.
221 Id. at 295, 297.
222 Gaudium et Spes, supra note 56, at T 28.
223 The Council rejected religious discrimination:
No foundationtherefore remains for any theory or practice that leads to discrimination between man and man or people and people, so far as their human dignity and
the rights flowing from it are concerned.
The Church reproves, as foreign to the mind of Christ, any discrimination against
men or harassment of them because of their race, color, condition of life, or religion.
On the contrary, following in the footsteps of the holy Apostles Peter and Paul, this
sacred synod ardently implores the Christian faithful to "maintain good fellowship
among the nations" (1 Peter 2:12), and, if possible, to live for their part in peace with
all men, (14) so that they may truly be sons of the Father who is in heaven. (15).
Second Vatican Council, Pope Paul VI, Declaration on the Relation of the Church to NonChristian Religions (NostraAetate) (OCT. 28, 1965), available at http://www.vatican.va/arch
ive/hist-councils/ii-vatican_council/documents/vat-idecl_1 9651028_nostra-aetateen.html.
224 In the Decrees On Ecumenism (Unitalis Redintegrado) and On the Cathoc Eastern Churches
(Orientakum Ecclesatium), the Eastern Orthodox Church received the most attention and respect.
O'MALLEY, WHAT HAPPENED, supra note 107, at 197, 241, 245. But eastern religions of Bud-
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THE STRUCFURAL WALL
237
These changes in the Church's thinking were supported by epistemological changes that involve acceptance of modern methods of historical analysis applied to the development of the Church itself.225 This
commitment to free empirical inquiry necessarily opened the way for
further deliberation and opportunities for future evolution.
Finally, this evolution of principle involved a notable change in the
political language of the Council. While the Church's hierarchical nature was affirmed, O'Malley emphasizes that "the church is never described as a monarchy or the members of the church as subjects-a
significant departure from previous practice.,2 6 Rather, O'Malley explains, the Council spoke in the language of equality, reciprocity, collaboration and cooperation, dialogue and conversation, and interiority,
emphasizing the conscience and spirituality of the individual.22 7
With all these changes, according to O'Malley, the Council determinedly turned its back on the "repeated condemnations of 'separation
of church and state' pronounced by popes since the early years of the
nineteenth century" and on the "official stance on church-state relations . .. .,228 The new position
ran counter to theories and practices that not only crystallized in the
nineteenth century as a reaction to the "lay state" following the Enlightenment and the French Revolution but also in a generic way,
ran all the way back to the formation of confessional states in both
Protestant and Catholic Europe during the Reformation. At that
time, according to the formula of the Peace of Augsburg in 1555,
the ruler determined the religion of the territory he controlled and
was its protector ... 229
Some scholars explain that the Council marked the end of the
"Counter Reformation,' 230 in which the Church fought back against
dhism and Hinduism were noted for their insights, as were, briefly, Muslims and Jews for their
historic and religious links to the Old and New Testaments. The Council opposed all religious
discrimination and rejected anti-Semitism. Id. at 250, 275 (discussing Nostra Aetate, supra note
223).
225 Id. at 36-43. Pope John XXIII's opening address, Gaudet Mater Ecclesia, notes that "authentic doctrine ... should be studied and expounded through the methods of research." Id. at
94-95 (quoting Pope John XXII, GAUDET MATER ECCLESIA (Oct. 11, 1962)).
226 Id. at 49.
227 Id. at 50-52.
8 O'MALLEY, WHAT HAPPENED, supra note 107, at 9.
229 Id. at 212.
230 Id. at 4. At the conclusion of the Council of Trent, the Church "sternly reminded secular
238
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Protestantism, claiming itself as the one true church, not only theologically but in civil society. Looking much further back, other scholars
identify these changes as marking "the end of the Constantinian Era" in
which, during the fourth century, the Church obtained official (imperial) recognition as the Roman Empire's established Church.2 31
In the view of John Courtney Murray, these changes the Council
adopted were consistent with certain components of the American Wall
of Separation. 232 By 1962, Murray had become the "single most importantperitus [expert] at the council on the church-state problem" and
chief author of Dignitatis Humanae.233 After the close of Vatican II,
rulers of their duty to enforce the decrees of the council and to punish anybody who resisted
them." Id. at 27. This was consistent with Constantine's making the decisions of the first ecumenical council at Nicea binding throughout the empire. Id.
231 Id at 4. Conservative Catholic dissenters also agree about the revolutionary (but for
them erroneous) nature of the Vatican II changes, including its reconciliation within the state to
false religions; they reassert the older axiom that "error has no rights." See, e.g., BISHOP MARK
A. PIVARUNAS, PASTORAL LETTER, THE DOCTRINAL ERRORS OF DIGNITATIS HUMANAE (Feb. 2,
1995), available at http://www.cmri.org/95prog2.htm. The arch conservative Archbishop
Lefebvre viewed this Declaration as
something close to an apostate capitulation to liberalism because he, first, identifies
the latter with secularism, indifferentism, and relativism and, second, maintains that
the only appropriate response to these threats is the confessional state. For Lefebvre,
freedom does not rest on human dignity; freedom and human dignity ... rest ultimately on the possession of the truth.
Joseph A. Komonchak, Vatican II and the Encounter between Catholicism and Liberalism, in
CATHOLICISM AND LIBERALISM: CONTRIBUTIONS To AMERICAN PUBLIC PHILOSOPHY, supra note
106, at 76, 85.
232 Formally, the Council only issued a text on Religious Freedom, not church-state relations.
But this document, along with the Constitution on the Church in the World Today, modified earlier
positions on church and state. Murray explains "[n]o formal document on the relations between Church and state issued from Vatican Council II, although the issue had appeared in the
legislative history of the Council. The original schema of the Constitution on the Church
[11/10/62] had contained a chapter (9) 'On the Relations of Church and State' revising an
earlier text "On the Relations of Church and State and on Civil Tolerance." Murray, Issue of
Church and State, supranote 56, at 580. O'Malley writes:
The problem Murray ran into in the council was that the doctrine of church-state relationships that he and his colleagues advocated seemed to critics not a further step
along the path but an abandonment of the traditional path for a different (and, indeed, forbidden) path. The popes had repeatedly condemned separation of church
and state, and now the council proposed it as a legitimate "development" of Catholic
... teaching .... Hence the vigorous and sustained opposition to the ideas proposed
in the Declaration On Religious Liberty.
O'MALLEY, WHAT HAPPENED, supra note 107, at 40.
233 Id. at 9. The American bishops at the Council played an important role in promoting On
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THE STRUCTURAL WALL
239
Murray wrote that "it was not until Vatican II ... that the Church proclaimed the right to religious freedom."2 3 Indeed, the "victories won in
the West for the cause of constitutional government and the rights of
man owed little to the Church." 23 5 Rather, "it would be fair to say that
the Church . . . did nothing to advance the struggle for the political
rights of man in the eighteenth and nineteenth centuries-those rights,
notably the right of free speech, which safeguard the person against the
encroachments of the state." 23 6
During that time, the Church understood the state as having, in
addition to secular functions, a "sacral" duty of "defending and promoting religious truth as such."237 In that view, the state should tolerate
non-Catholic religions only where "religious dissent had so established
itself as a social force that the attempt to eradicate [pluralism] by force
would do more harm than good." 238
In contrast, Murray explained, Vatican II adopted a transformed
view of the state: a "juridical state .
.
. limited in function [to] the pro-
tection and promotion of the rights of man and the facilitation of the
performance of man's native duties."239 With the "dignity of the human person and the inviolability of his rights" at the center, the Council
set off in a new direction: the function of government is to protect not
"religious truth, but [the secular value ofj religious freedom as a fundamental right of the human person."240
Church autonomy, not establishment, became central. According
to Dignitatis Humanae, "The freedom of the Church is the fundamental
principle in what concerns the relations between the Church and governments and the whole civil order." 2 41 What is it that the Church asks
of the state in this new regime? "She asks of you nothing but free-
Religious Freedom; indeed, "[e]xcept for their efforts to promote the Declaration On Religious
Liberty, the bishops from the United States did not play a particularly notable role in the council." Id. at 121.
234 Murray, Issue of Church and State, supra note 56, at 601.
235 Id.
236 Id
237 Id. at 586-87.
238 Id. at 586.
239
Id.
240 Murray, Issue of Church and State, supranote 56, at 586-87.
241Id. at 587 (quoting Dignitatis Humanae, supra note 210, at §13). As a matter
of politics,
the change also reflected an effort to rescue the Church from state meddling with it (as in the
civil approval of church functionaries) in which the absence of a wall of separation had gone
badly for the Church's autonomy. Id. at 588.
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dom-freedom to believe and to preach her faith, freedom to love God
and to serve Him, freedom to live and to bring to men her message of
life." 242
Accordingly, Murray explains that in the Constitution on the Church in
the World Today, Gaudium et Spes, "The Council . . . makes a political
commitment, however discreet, to constitutional government . . .
whose basic inspiration is a consciousness of the dignity of the person
and a recognition of human rights. Only under this manner of government is the freedom of the Church, together with the freedom of
man himself, assured."243
Thus, the Council states: "Disapproval is voiced of . . . those
forms of government, to be found in some countries, which fetter civil
and religious freedom." 244
In summary, it may be said that the Council moved from a position of tolerating other religions and their free exercise, where a modus
vivendi required it, to anchoring religious freedom in constitutional principles based on the dignity of persons and their freedom of conscience,
preserved by a secular constitutional state.245 This is the move that
John Rawls describes in PoliticalLiberalism as accepting an overlapping
consensus - not as a modus vivendi given momentary power relations, but
as a constitutional matter of establishing the shared rules of a just civil
society among reasonable persons holding competing comprehensive
views.
Obviously, interpretation of the work of Vatican II and of the U.S.
Constitution and its Wall of Separation, occurs within two different and
extraordinary interpretive communities. Certainly the Council was not
addressing all the structural concerns that the Establishment Clause
implements, as described in Part I. But there is sufficient constitutional
correspondence to credit Vatican II with accepting some-not all-of
the core principles of the Constitution's First Amendment.
To return at last to Justice Thomas' claim: if, according to Helms
and Zelman, aid to "pervasively sectarian" schools will no longer be
blocked, that would not be because the doctrine of "true private
242
Id. at 593 (quoting ACTA APoSTOLiCAE SEDIS: COMMENTARIUM OFFICIALE 58 (1966) at
10-11).
Id. at 599-600.
Id. at 600 (quoting Gaudium et Spes, supra note 56, §§ 51, 73).
245 "The U.S. Constitution's First Amendment, Murray argued, represented a solution to the
problem that could be justified in principle and not simply as something to be 'tolerated' as a
lesser evil." Komonchak, Catholc Princple,supra note 121, at 29.
243
244
THE STRUCTURAL WALL
2014]
241
choice" or an anti-classification rule adequately implements a full account of the Establishment Clause. Rather, the better explanation of
Helms, one more consistent with the structural Wall of Separation,
would be this: while remaining pervasively religious, Church schools,
without an entangling interference with their free exercise, plausibly can
be required, as a condition of public funding, to serve the public function of teaching the next generation in a liberal democratic constitutional republic. On this view, if Helms were now a plausible implementation of the Establishment Clause, it would be because the Church's
interpretation of its political constitution had changed.246
But not all religious schools that would qualify for direct aid or
state voucher or tax support under Helms and Zelman would qualify under the proposed rationale offered here. Consider the Islamic Saudi
Academy in Alexandria, Virginia, a K-12 school owned and operated by
the Saudi Government (which knows no separation of religion and
state), with the Ambassador of the Kingdom of Saudi Arabia to the
United States as honorary chairman of the board. 247 The United States
Commission on International Religious Freedom has criticized this establishment school for using official Saudi textbooks that foment hatred and intolerance against apostates and members of other religions,
such as Shi'a Muslims, Bahai'sts and Jews.248 A state could not create a
246
f
JOHN NOONAN, A CHURCH THAT CAN AND CANNOT CHANGE (2005).
247 See ISLAMIC SAUDI ACADEMY OF WASHINGTON,
http://www.saudiacademy.net/ (last visited June 28, 2011). Cf Avigael N. Cymrot, Reading Wriing and Radicalism: The Limits on Government Control over Private Schooling in an Age of Terrorism, 37 ST. MARY'S L.J. 607 (2006); Jessica
Powley Hayden, Note, Mullahs on a Bus: The Establishment Clause and U.S. ForeignAid, 95 GEO.
L.J. 171 (2006).
248 Press Release, U.S. Comm'n on Int'l Religious Freedom, Saudi Arabia: USCIRF Confirms Material Inciting Violence, Intolerance Remains in Textbooks Used at Saudi Government's Islamic Saudi Academy (June 11, 2008), available at http://www.uscirf.gov/newsroom/press-releases/2206-june-11-2008-saudi-arabia-uscirf-confirms-material-incitingviolence-intolerance-remains-in-textbooks-used-at-saudi-governments-islamic-saudiacademy.html. This followed a several year effort by the Commission to get the State Department to obtain, review, and release the texts used by the school.
The Commission asserts that the Saudi government is violating its duties under three
United Nations treaties: (1) the Universal Declaration of Human Rights, G.A. Res. 217 (111) A,
art. 26, U.N. Doc. A/RES/217 (III) (Dec. 10, 1948) (guaranteeing religious freedom, banning
discrimination on the basis of religion, and providing that education "shall promote understanding, tolerance and friendship among all nations, racial or religious groups . . . ."); (2) the
UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination based
on Religion or Belief, G.A. Res. 36/55, arts. 3, 5-6, U.N. Doc. A/RES/36/55 (Nov. 5, 1981)
(banning religious discrimination as "an affront to human dignity," a "disavowal of the principles of the [UN] Charter," a violation of international human rights law, and "an obstacle to
242
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general voucher or tuition tax deduction that would fund this sort of
religious education and still advance the constitutional value of preparing our posterity through a liberal democratic education.24 9
CONCLUSION
The claim that the Wall of Separation finds its source in a sordid
history of American bigotry against Catholics, our largest religious denomination, may be a "politically correct view" to some, but it involves
mistaken politics, or, more precisely, mistaken constitutionalism. AntiChurch, anti-papist, and anti-clerical expressions made in the course of
debating political matters, like earlier expressions in opposition to the
established Church of England during the American Revolution, should
be understood, at least in substantial part, as a form of popular constitutionalism endorsing the great American experiment in liberal democracy, including the First Amendment and its Wall of Separation.
friendly and peaceful relations between nations;" requiring that the child be "protected from
any form of discrimination on the ground of religion or belief" and "brought up in a spirit of
understanding, tolerance, friendship among peoples, peace and universal brotherhood, [and]
respect for freedom of religion or belief of others . . . "; and protecting the enjoyment of rights
including "the right to freedom of thought, conscience, religion, or belief"); and (3) the UN
Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3. (mandating nondiscrimination and the teaching of tolerance in education). The International Convention on
the Elimination of All Forms of Racial Discrimination art. 5, Dec. 21, 1965, 660 U.N.T.S. 195
(requiring state parties "to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law" including the enjoyment of the
"right to freedom of thought, conscience and religion").
249 The state can go very far indeed in establishing in all schools a required curriculum that
serves a liberal democratic function, although the state may not "standardize" children in violation of the anti-totalitarian principle. Meyer v. Nebraska, 262 U.S. 390 (1923), recognized and
Pierce v. Society of Sisters of the Holy Names ofJesus and Mary, 268 U.S. 510 (1925), implemented, and
although the state is incompetent to supply children the totality of their normative and associational obligations, Princev. Massachusetts, 321 U.S. 158 (1944).
However, to exclude such schools from "true private choice" funding, one would need the
political will to regulate private schools and to exclude from funding those schools that are
based on religious beliefs inimical to the public function of education. One would need constitutional doctrines permitting entangling supervision of religious schools, and content and viewpoint discrimination in their funding. An imperfect proxy for such content based regulation
would be instead a doctrinal line prohibiting funding of any school that was coordinated with
an established foreign church. For examples of that doctrinal model, see Holder v. Humanitaian
Law Prject,561 U.S. 1 (2010); CitiZens United v. F.E.C, 558 U.S. 310 (2010).
THE STRUCTURAL WALL
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243
APPENDIX: THE JURISDICTIONAL CLAIM
Justice Thomas and others have asserted that the Establishment
Clause should be understood as solely a federalism-jurisdictional, or
"enhanced federalism," provision with no normative content, designed
only to require that the federal government leave states free to regulate
religion on their own.250
To a well worked debate, I add the following five arguments:
1. The narrowest or least substantive jurisdictional interpretation of the Establishment Clause would read it as meaning: "No (federal) law respecting an establishment of religion shall be construed as
preempting a state law respecting an establishment of religion." Under
such a reading, the federal government might have established the
Episcopal Church, appointed Virginia clergy to this federal church (as
those Virginia clergy could no longer count on state support), and imposed a tax to pay these clergy or imposed a general assessment to support a minister of one's own church, so long as state establishments
Carl Esbeck has called Thomas' claim a "specific federalism" claim to distinguish it from
the general federalism effect that arises from the fact that the Bill of Rights only applied to the
federal government, as recognized in Barron v Baltimore, 32 U.S. 243 (1833). See Carl Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation,2011 UTAH L. REV.
489-623 (2011); Carl Esbeck, The FirstFederalCongress and the Formation of the Establishment Clause
of the FirstAmendment, in Gunn & Witte, supra note 12, 208 (effectively criticizing Thomas' claim
as a matter of framers' and ratifiers' original intent).
For a thorough demolition of Thomas' "enhanced federalism" claim, in addition to
Esbeck's work, see DONALD L. DRAKEMAN, CHURCH, STATE, AND ORIGINAL INTENT 229-49
(2010); see also Andrew Koppelman, Phony Oniginalism and the EstablishmentClause, 103 NW. U. L.
REV. 727, nn. 61-62 (2009); Andrew Koppelman, AkhilAmar and the EstablishmentClause, 33 U.
RICH. L. REV. 393 (1999) (reviewing AMAR, supra note 14); Steven K. Green, Federalism and the
EstablishmentClause: A Reassessment, 38 CREIGHTON L. REV. 761, 767-68 (2005). For additional
review of this debate see Steven D. Smith, The JurisdictionalEstablishment Clause: A Reappraisal,81
NOTRE DAME L. REV. 1843, 1891-93 (2006); STEVEN D. SMITH, THE RISE AND DECLINE OF
AMERICAN RELIGIOUS FREEDOM 57, 185 n. 23 (2014) (rejecting his earlier position).
For other historical commentary, see LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE:
RELIGION AND THE FIRST AMENDMENT (2d ed. 1994); NOAH FELDMAN, DIVIDED BY GOD:
AMERICA'S CHURCH-STATE PROBLEM-AND WHAT WE SHOULD Do ABOUT IT 42-50 (2005);
250
THOMAS
J.
CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE
(1986); Douglas Laycock, 'Nonpreferenial" Aid to Re4ion: A False
Claim About OriginalIntent, 27 WM. & MARY L. REV. 875 (1986); Douglas Laycock, Theology Scholarships, the Pledge ofAllegiance, and Relgious Libery: Avoiding the Extremes but Missing the LIberty, 118
HARV. L. REV. 155, 240-43 (2004) (noting flaws in Thomas' originalist argument); Mark V.
Tushnet, Separation of Church and State: HistoricalFact and CurrntFiction. By Rober L Cord, 45 LA.
L. REV. 175, 175 (1984) (book review).
OF THE FIRST AMENDMENT
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remained free to do the same. The citizens of Massachusetts, taxed
doubly for the support of both Episcopal and Congregationalist ministers, would have had no principled objection under that strictly jurisdictional interpretation, since they remained free to establish their own
church. But, of course, their objection would have been vigorous because the Establishment Clause has a substantive content, the principles
of separation (as discussed in Section I and, in Everson) that would have
protected them from the several harms that would have arisen from
federal aid.
2. If the Establishment Clause were a purely jurisdictional
amendment, then its closest analogical neighbor would be the Eleventh
Amendment, the constitutional amendment most explicitly drafted as a
purely jurisdictional provision. On the one hand, the textual differences between the two amendments cast doubt on a purely jurisdictional interpretation. On the other, if it were jurisdictional, then as with
the Eleventh Amendment so too with the Establishment Clause: behind the text of the Establishment Clause would not be normative silence but capacious substantive and structural "postulates which limit
and control," as the Court has taught in Eleventh Amendment cases
for a century. 251 To implement a jurisdictional provision, one still needs
to interpret what is excluded from federal power, and why, which is to
give substance to the Establishment Clause. The federal-jurisdictional
account is willfully blind to that substance. Under the rule of Barron v.
Baldimore,252 the application of the First Amendment to the federal government would both reassure those with state establishments and place
substantive limits on how the new national government was to govern.
3. In determining originalist meaning, there is no a priorireason
to assume that a citizen's expressed beliefs about appropriate churchstate relations in his own state (under the particular local conditions he
has come to expect) are evidence of his judgment about the constitutional prindple that should govern church-state relations in the new extended and pluralistic federal Republic intended to be a "novus ordo
sedorum."253 Thus, there is "nothing odd," 25 4 about a state or statesman
251 Principality of Monaco v. Mississippi, 292 U.S. 313, 322 (1934).
252 32 U.S. 243 (1833) (limiting application of the Bill of Rights to the U.S. government).
253 A "New order of the ages" appears on the Great Seal of the United States, first designed
in 1782. See, e.g, Wikipedia, Novu ordo seclorum, http://en.wikipedia.org/wiki/Novusordo-seclo
rum (as ofJan. 25, 2014, 21:57 EST).
254 ContraJeffries & Ryan, supra note 98, at 292-93; DRAKEMAN, supra note 250.
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245
endorsing a principle to govern the Republic while permitting another
principle or unprincipled older and familiar practices to govern at home
(especially in the exercise of the police and parenspatriaepowers). Many
commentators, including Donald Drakeman, mistakenly infer the public meaning of the Establishment Clause directly from evidence about
what speakers said about their state's church-state principles and practices.
4. With respect to the incorporation debate after the Fourteenth
Amendment rejected Barron v. Baltimore, the Establishment Clause is not
(logically) more difficult to apply to a state's exercise of its police power
than the rest of the Bill of Rights. No provision of the Bill of Rights
had originally been intended primarily to curb the police power, as the
police power had not been granted to the United States other than in
1787 for then-minor cases of what would become the District of Columbia and of mostly frontier federal lands and territory.255 As a result,
the process of incorporation of each clause of the Bill of Rights has involved determining over time how to apply its underlying values to a
state's exercise of its police power, whether the case involved "stop and
frisk," police interrogation, breach of the peace, the (structural) right to
a jury in petty crimes, or aid to religious education.
5.
Rejecting the Virginia-centric Madisonian interpretation of
the First Amendment is like interpreting the Constitution without reference to the triumph of the Federalists who achieved its drafting and
ratification.2 In the case of the religion clauses, we have not a smattering of dictionary definitions and isolated practices across time and localities; rather, there is a substantial historical record.
a. There is a pre-enactment victorious political movement in the
most populous and powerful state, Virginia, led by James Madison in
conjunction with Thomas Jefferson. Madison was one of the greatest
political theorists and statesman of his generation. Church-state relations were not one among many interests of a polymath. Rather, it was
the core of his early commitment to liberty: the persecution of Baptists
in Orange, New Jersey first aroused his ire; as a young politician his
first intervention in the Virginia House of Burgesses involved the suc5 8, cl. 17; art. IV,§ 3, cl. 2.
With respect to privileging Madison, compare Martin Marty, Getting Beyond the Myth of
ChristianAmerica, in Gunn & Witte, supra note 12, 364, 377, with Kent Greenawalt, Some Refleclions on FundamentalQuestions about the Onginal Understandingof the Establishment Clause, in Gunn &
Witte, supra note 12, 341, 344.
255 See U.S. CONST. art. I,
256
246
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[Vol.
cessful modification of a bill of toleration to require equal rights of
conscience. Ten years later, with the widespread backing of an agitated
religious opposition, he successfully opposed the leading Virginia state
politician and revolutionary hero Patrick Henry in order to establish the
no-aid principle of church-state separation.257 In the course of this political struggle in 1785, he penned the great Memorial and Remonstrance
Against Religious Assessments,258 a public document, signed by over a
thousand Virginians, that constitutes the principle theoretical statement
of American church-state relations (analogous to Madison's report on
the Sedition Act that set forth a prevailing American theory of free
speech 2 )
b. Within a year of this victory in Virginia for the no-aid principle, Madison became one of the leaders of the Constitutional Convention, if not its leading thinker. The next year he wrote with Hamilton
and Jay the leading defense of the Constitution, The Federalist Papers,
which still enjoy a privileged place in constitutional interpretation. The
plurality of religious sects and his Virginia experiences representing
Baptist interests provided a model for The Federalist 10.260 At the same
time, he reversed his, and the Federalist, position on the need for a Bill
of Rights. He was then elected to the First Congress on the basis of his
commitment to a Bill of Rights made to the same Baptist constituency
who supported him in the Virginia no-aid contest.
c. Madison then fulfilled that promise in the First Congress as
initial drafter of the Bill of Rights and as a member of the select House
committee and House-Senate conference committee. Tellingly, when
he reviewed the state petitions for specific provisions for inclusion in
his draft of the Bill of Rights, Madison would have found that many of
the demands for a provision on religious establishments came from
states without established churches and with substantial separation.26'
See, e.g., Ketcham, supra note 50, 158-180.
[CA. 20 June] 1785, http://founders.archives.gov/documents/Madison/01 -08-02-0163.
259 LEONARD W. LEVY, FREEDOM OF THE PRESS FROM ZENGER TO JEFFERSON: EARLY
257
258
AMERICAN LIBERTARIAN THEORIES 198-212 (1966) (excerpting James Madison's The Virginia
Report of 1799-1800).
260 See Jupranote 28.
261 See MICHAEL 1. MEYERSON, ENDOWED BY OUR CREATOR: THE BIRTH OF RELIGIOUS
FREEDOM IN AMERICA 173-75 (2012) ("[T]he establishment clause was proposed almost entirely by states that did not have an established religion; ... debated without a single reference to
the need to protect state establishments from Congress; . . . and ratified without the slightest
sign of interest from most of the states with an establishment .
and the three states that
initially failed to ratify the Bill of Rights had establishments).
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247
The specific drafting history in the House and Senate offers evidence in the direction of a broader reading of the meaning of the ban
on laws respecting establishments.2 62 Professor Steven Smith takes the
lack of a heated battle over principles in Congress as evidence of the
normative emptiness of the Establishment Clause, and asserts that the
religion clauses were only a political deal to be interpreted as narrowly
as possible, although they are constitutional texts announcing a general
principle. 263 But this claim ignores the similar lack of contestation over
other clauses of the Bill of Rights. It further ignores that the very public position of the Bill's sponsor (publicly honed over more than a decade) provoked no battle of principles or particulars against Madison
that would contest the publicly-developed Madisonian understanding of
separation. Nor did the ratification process result in any such contestadon or dissension or differ depending on whether a state had an established church or not. 264
d. There is the post-ratification practice of Madison and his coarchitect and co-builder of the Virginia Wall of Separation, Jefferson, as
well as their post-ratification commentary, including Jefferson's Danbury letter and Madison's Detached Memoranda (expressing, inter alia,
regret over his mild encouragement of Thanksgiving prayers for those
who were so inclined).26 5
While there were deviations from separation principles in postratification practice in the early Republic, no early practice departed to a
degree comparable to the Alien and Sedition Acts' departure from the
principles of the free speech and press clauses of the First Amendment.
Recent commentary on departures from church-state separation
often focuses on presidential religious speech in formal Thanksgiving
proclamations calling for a religious exercise, and on the non-official
personal speech in inaugural addresses (which simply prove what needs
no proof, that presidents and their audiences have religious beliefs). In
262For an excellent and illuminating review, see Esbeck, supra note 250.
263See Steven D. Smith, The juisdictionalEstablishmentClause: A Reappraisal,81 NOTRE DAME
L. REV. 1843 (2006); DRAKEMAN, supra note 250 (engaging in an analysis that identifies the original meaning of a clause as the lowest-common denominator of the multiple conceptions of the
multiple concepts advanced in the debates); but cf McCulloch v. Maryland, 17 U.S. 316, 407
(1819) (adopting a different background rule for interpreting the Constitution:"[I]t is a constitution we are expounding.") (emphasis in original).
264 See MEYERSON, supra note 261.
265See Elizabeth Fleet, Madison's 'DetachedMemoranda", 3 WM. & MARY Q. 534, 534-36, 56062 (1946).
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contrast to Washington's inclusive religious referenceS266 and Jefferson's
and Madison's mild invocations (often amounting to ceremonial deism), 267 President Adams engaged in Protestant sectarian endorsements.
His inaugural address offered to the nation, "among the best [self-] recommendations for .. . public service," his "decent respect for Christianity," which in turn led to his sectarian proclamations for thanksgiving, fasts, and humiliations.268 Of his recommendation of a fast day, the
strongly critical PhiladelphiaAurora wrote on May 6, 1798:
Because there is nothing in the constitution giving authority to proclaim fasts . . . Because prayer, fasting, and humiliation are matters
of religion and conscience, with which government has nothing to
do .
.
. And Because we consider a connection between state and
church affairs as dangerous to religious and political freedom and
that, therefore, every approach towards it should be discouraged.269
Two months later, also in response to Adams' religious speech and
proclamations, a member of Congress, Mathew Lyon, accused Adams,
inter alia, of causing "the sacred name of religion [to be] employed as a
state engine, to make mankind hate and persecute one another," in a
letter to Spooner's Vermont Journal270 An Irishman originally from a
county south of Dublin, Lyon represented western Vermont, which
271
was settled by religious dissenters.27 In its first prosecution using the
Sedition Act, the Adams administration prosecuted Lyon and submitted
to the jury, along with other evidence, the above quote criticizing Adams for his religious proclamations. Following his conviction, a federalist judge fined Lyon and sentenced him to four months in jail. But
the citizens of Vermont reelected Lyon to the House of Representatives while he was incarcerated. Eventually given his electoral mandate,
Jefferson pardoned those who were convicted under the Sedition
See, e.g.,MEYERSON, supranote 261, at 82-90, 187-99.
See, e.g.,Ketcham, supra note 50, at 176-77.
26s See President John Adams, Inaugural Address of John Adams (Mar. 4, 1797), available at
http://avalon.law.yale.edu/18th-century/adams.asp, last visited Dec. 19, 2014.
269 RicHARD N. ROSENFELD, AMERICAN AURORA: A DEMOCRATIC-REPUBLICAN RETURNS:
266
267
THE SUPPRESSED HISTORY OF OUR NATION'S BEGINNINGS AND THE HEROIC NEWSPAPER THAT
TRIED TO REPORT IT, 113 (St. Martin's Press, 1997).
270 M. Lyon, Letter, SPOONER'S VT.J. (July 31, 1798), at 2.
He may have been Episcopalian originally, though eventually he became a rational Deist
like Ethan Allen. See ALEINE AUSTIN, MATI'HEW LYON: "NEW MAN" OF THE
DEMOCRATIC REVOLUTION, 1749-1822 (1981).
271
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THE STRUCFURAL WALL
249
Act.272
This use of the Alien and Sedition Acts helped turn the 1800 presidential contest between Jefferson and Adams into a referendum, not
just on speech, but on the Establishment Clause. As one Republican
newspaper editor wrote, the election of 1800 involved a choice between
Adams with "an established church, a religious test, and an order of
Priesthood" on one side and "religious liberty, the rights of conscience,
no priesthood, truth and Jefferson." 273 In late life, Adams added some
support for this assessment of the election: he attributed his loss to the
unpopularity of his religious proclamations.27 4 Given the campaign's
virulent religiously-themed hostility to Jefferson, his election "was in
many ways an early referendum on the constitutional relationship between government and religion." 27 5 As this election of Jefferson (following the Adams' administration's Sedition Act prosecutions) is recognized as decisive in establishing the "central meaning" of the Free
Speech Clause in the "court of history,"2 76 so too it should be seen as
giving important meaning to the Establishment Clause.
Whatever the exact rule should be regarding the wavering line between personal and official speech of presidents and other officials,
there is also post-ratification clarity in Madison's successful veto, on
grounds of the First Amendment, of a bill granting land to a Baptist
church and a church incorporation bill with entangling requirements.
There is also clarity in the unambiguous 1810 law requiring post offices
to remain open on Sundays (and the subsequent Post Office closure
controversy), which triggered an extended debate about the religion
272 See ANTHONY LEWIS, FREEDOM FOR THE THOUGHT THAT WE HATE: A BIOGRAPHY OF
THE FIRST AMENDMENT 20 (2007); Robert Rachlin, The Sedition Act of 1798 and the East-West
PoliticalDivide in Vermont, 78 VT. HIST. 123, 124 (2010); The Sedition Act Trials-HistoricalBackground and Documents, HISTORY OF THE FEDERAL JUDICIARY, available at http://www.fjc.gov/hist
ory/home.nsf/page/tu sedition_hdstatements.html.
273 Jill Lepore, Party Time: Smear Tactics, Skulduggerj, and the Debut ofAmeican Democray, NEW
YORKER, Sept. 17, 2007 (quoting an October 14, 1800 edition of AURORA, supra note 269).
274 Letter from John Adams to Benjamin Rush (June 12, 1812), in OLD FAMILY LETTERS:
COPIED FROM THE ORIGINALS FOR ALEXANDER BIDDLE 391-93 (1892) ("The National Fast,
recommended by me turned me out of office. It was connected with the general assembly of
the Presbyterian Church, which I had no concern in ... A general Suspicion prevailed that the
Presbyterian Church was ambitious and aimed at an Establishment as a National Church. I was
represented as a Presbyterian and at the head of this political and ecclesiastical Project.").
275 MEYERSON, upra note 261, at 205-206, 210, 251.
276 See N.Y. Times v. Sullivan, 376 U.S. 254, 273, 298 n. 1 (1964).
277 See MEYERSON, supra note 261, at 260.
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clauses in Congress.2 78
Some commentators cite, as evidence of federal aid to religion, the
pre-consfitutionalhistory involving the Land Ordinance of 1785 (in which
the Congress rejected land grants for the support of religion), the
Northwest Ordinance (which contained only a sentence that acknowledged the role of religion in producing an educated citizenry), and two
land grants in Ohio (in which a Congress under the Articles of Confederation addressed the complex and narrow problem of how to develop
and privatize its control over territorial land). But these preconstitutional acts are of limited constitutional significance; and the debates on these ordinances show some concern for the no-aid principle.
Nor is the post-Constitution technical act of the First Congress enabling the new government to administer the pre-existing Northwest
Ordinance an endorsement of or aid to religion.279 Other early postconstitutional practices often cited as aid to religion involved specialized instances of congressional power that did not regulate citizens or
affect the states: Congress' internal self-governing power under Article
I to hire congressional chaplains; ad hoc incorporation acts of churches
in the District of Columbia before general and neutral incorporation
statutes came to be used; and the funding of religious organizations to
convert and educate Indians (a goal understood to serve secular purposes with means that were the primary form of education at the time,
pursuant to powers over external relations, including Article I's treaty,
war-making, and Indian commerce powers, as to which judicial review
is deferential).
e. Finally, the Revolution and the processes of constitutionmaking, in the states and the nation, launched broad and consistent
trends in our country that Madison's Virginia church-state program illustrates: a "zeitgeist" of liberal democratic government. Although not
governed by the Establishment Clause, the trend, both pre-enactment
and post-enactment, 280 in every state was in the same direction: establishments rapidly died out, without a great struggle or Kulturkampf
Some states had no establishment at all in 1791. In those states with
278See ISAAC KRAMNICK & R. LAURENCE MOORE, THE GODLESS CONSTITUTION: A MORAL
DEFENSE OF THE SECULAR STATE 132-42 (2005).
279 See MEYERSON, supra note 261, at 121-27; CHRIS RODDA, 1 LIARS FOR JESUS: THE
RELIGIOUS RIGHT'S ALTERNATE VERSION OF AMERICAN HISTORY 31-70 (2006); Ronald Smith,
Freedom ofReligion and the Land Ordinance of 1785, 24 J. CHURCH & ST. 589 (1982).
280See structure of originalist arguments in Districtof Columbia v. Heller, 554 U.S. 570 (2008).
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the strongest establishments, the move was first to non-preferentialism
and then to no aid, with Massachusetts adopting that position within 42
years of the First Amendment's adoption. 28 1 The Establishment Clause
is, from this perspective, simply declaratory of an American principle.
281 See, e.g, Mark McGarvie, Disestablishing Reliion and Protecting Rekgious Liberty in State Laws
and Constitutions (1776-1833), in Gunn & Witte, supra note 12, at 70-99 (emphasizing the role in
disestablishment of voluntarism furthered by the common law of contracts).
By contrast, the framer's "jurisdictional" response to slavery, which many also hoped
would eventually die out in the states, was not successful.