Posted Sept. 19, 2002
Religious Prejudice Caused Church and State Separation

The separation of church and state, a pillar of American civic life ostensibly derived from the U.S. Constitution's Establishment Clause, is not the legacy of noble philosophizing by Jefferson or Madison, but the product of anti-Catholic prejudice by 19th-century Protestants, according to Law School Dean John C. Jeffries Jr., who laid out the case in the 2002 Henry J. Abraham Distinguished Lecture Sept. 13 in Caplin Auditorium.

The modern interpretation of the Establishment Clause dates to 1947 when the U.S. Supreme Court ruled in the case of Everson vs. the Board of Education that the First Amendment broadly rejects public funding for parochial schools. The case arose in New Jersey over the use of public funds to pay the bus fares of children whose locality did not provide secondary education but instead sent its students on to neighboring schools, some Roman Catholic. The decision on the bus fares was five to four to allow them, but there was unanimity among the justices that the affairs of church and state should be kept strictly separate, that government should be neutral toward all religions, and that no matter how it gets there, public funds should not support religious schools. Most of the church/state cases heard by the Supreme Court since then have been school-related, Jeffries noted.

The majority in the Everson case was "crystal clear" about how their ruling agreed with the intent of the Founding Fathers, Jeffries said. They invoked the words of Thomas Jefferson (the phrase "wall of separation" was coined by him) and James Madison. "They treated the history of Virginia as if it were the history of the United States and the Establishment Clause as if it were based on the Virginia Statute for Religious Freedom. None of these propositions are true," Jeffries declared confidently.

"The Everson decision treats Jefferson and Madison as if they represent the consensus of the Founding Fathers' generation," Jeffries said. "But there were other states when the constitution was adopted and seven of them had government-sponsored religions.

"It's not clear that the other states meant to follow Virginia. If the Jefferson/Madison view was widely shared, why did the Establishment Clause not adopt this separation of church and state? It doesn't say that. It merely says the Congress cannot pass any law establishing a religion. Congress has to stay out of it. It is a decision of the states whether to establish a religion. So the Establishment Clause is not so much against establishment as it is pro-states rights."

Though originally intended to apply to Congress, the separation concept became applied to the states through the "familiar doctrine of incorporation," Jeffries said.

The concept of no government funding for parochial schools is the result of the failed Constitutional amendment proposed by James Blaine of Maine in 1875, Jeffries said. Blaine, then Speaker of the House and angling for the Republican presidential nomination, introduced an amendment that would extend the establishment and free exercise clauses to the states. The idea took up a call from Ulysses S. Grant for legislation funding public education but not parochial schools. Blaine's amendment, altered and weakened in debate, failed to pass the Senate and go on to state consideration, but many states nonetheless adopted the language.

"Blaine was the champion of nativist, anti-Catholic, anti-immigrant prejudice," Jeffries said, "and his amendment was hostile to any use of government money for any religious use anywhere ever. It attempted to foreclose any possibility that Catholic schools would get public money. The public schools were Protestant and the Blaine amendment went so far as to say that the amendment was not meant to prevent the reading of the King James Bible in schools. Catholics opposed private reading of the Bible because they believed unguided reading could lead to error. So they didn't want their children in the public schools.

"The Blaine amendment was trying to preserve the informal establishment of Protestantism as the official American religion. Because it was not ratified, the anti-Catholic context of the Everson decision is not clear."

But the Blaine amendment did get into the Constitution "through the back door," Jeffries said. States began adopting the amendment, especially western states joining the union, and by 1890, 29 out of 45 states had it. "It was like the Equal Rights Amendment in that it failed formally but its content got adopted by the Supreme Court.

"My guess is that the Everson judges thought they were saying what everyone had always thought was true: that they were preserving a national consensus by policing a state that was different from the national norm. But that norm derives not from lofty words from Jefferson and Madison but the dominant Protestant culture that wanted to ensure that government money continued to go to their schools, the public schools, only."

Jeffries said the country "should take satisfaction" in the Supreme Court's recent ruling on Cleveland's voucher program because "all the justices agree that the Constitution forbids favoritism of religion.

"The majority saw Cleveland's plan as neutral because the voucher could go to any type of private school. Justice Thomas was especially influenced by the impact of school failure on poor black children, whom he wanted to have school choices. The dissent by Justice Souter said that 95 percent of the vouchers were used to send students to Catholic schools, so the program was not really neutral. If, as it appears true, the Supreme Court is going to act as the final political authority for our nation and treat the Constitution as a living document, then it is far better that the Justices act in awareness of the real-world consequences of their decisions."

He explained the subsequent secularization of schools as necessary to making the public schools hospitable to Catholic, and especially after World War II, to Jewish students, who were demanding equal treatment in schools.

He said it took so long to get to the Everson decision because the effect of the Blaine amendment was to prevent the question from arising. When it did it was in a state that had no constitutional provision against aid and a large Catholic population.

Jeffries' talk was sponsored by the Thomas Jefferson Center for the Protection of Free Expression. The annual lecture, begun in 1999, honors former U.Va. professor of government and foreign affairs Henry J. Abraham, a constitutional scholar, who attended this year's talk.
• Reported by M. Marshall