1 Race Relations and Modern Church-State Relations Thomas C. Berg This article concerns religion and race – two controversial subjects that have figured prominently in America’s constitutional and political debates since World War II. In particular, I wish to trace some connections in the last 50 years between developments in church-state relations and developments in race relations. Recently scholars of the First Amendment’s Religion Clauses have shown interest in how the Supreme Court’s modern decisions on that subject might have been influenced by the political, social, and cultural context of recent decades: such factors as the changing attitudes toward Roman Catholicism, 1 the rise of secularism in culture, 2 the position of religious minorities, 3 and so forth. Like some of that other work, this Article traces the course of not only in the Court itself, but in the broader society. It would hardly be surprising if developments concerning church and state in the last 50 years interacted with developments in the area of race, since the latter have been so central to Professor of Law, University of St.
Thomas School of Law (Minneapolis).
I presented portions of the material here at the Boston College Law Review Symposium on Separation of Church and State, in April 2002; at a Federalist Society program on “Faith Under Democracy,” in March 2002; at a summer 2001 symposium on Spirituality and Social Justice, sponsored by a grant from the Lilly Endowment; and to a fall 2001 meeting of the Colloquium on Religion and Philosophy at Samford University. I thank David Bains, Hugh Floyd, Penny Marler, [OTHERS], and the participants in those sessions for their comments on the various versions of the paper. 1 See, e. g.
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Theories of secularisation assume an irreversible decline of religion in modern society, usually from the mid 18 th century. It is proposed that unable to provide a generally held conception of meaning, due to the emergence of plurality of life experiences and rapidly changing social order, religion loses its ideological, political and social relevance. This loss of function in Modern day Britain ...
, John C. Jeffries, Jr. , and James A. Ryan, A Political History of the Establishment Clause, 100 Mich.
L. Rev. 279 (2001); Thomas C. Berg, Anti-Catholicism and Modern Church-State Relations, 33 Loyola U-Chi. L. Rev.
121 (2001); Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46 Emory L. J. 43, – (1997).
2 See George W. Dent, Jr. , Secularism and the Supreme Court, 1999 B.
Y. U. L. Rev.
1. 3 See Stephen M. Feldman, Religion-Clause Revisionism: Minorities and the Development of Religious Freedom (unpublished draft, on file with author).
2 constitutional law and moral-political debate – from the constitutional success of Brown v. Board of Education 4 to the moral-political triumph of the civil rights movement to the current conflicts over how to define and achieve racial justice. The central story in church-state relations in the last 50 years has been the rise of a fairly strict separation of church and state as the overriding constitutional and moral ideal in the 1960 sand 1970 s, and the partial decline of that ideal from the 1980 s through the present.
The purpose of this Article is to discuss how developments in the area of race may have facilitated both the rise of strict church-state separation ism in the 1960 s and 70 s and its decline in the last 20 years. I do not claim that these connections have been crucial, or even especially direct. I claim only that developments in race relations created an atmosphere, a set of general attitudes that were hospitable first to the rise of and then to its decline. I.
CHURCH-STATE SEPARATION ISM IN THE CIVIL RIGHTS ERA The movement for equal rights for black Americans reached its height in the 1960 s and early 1970 s. In the early 60 s the national media focused attention on the nonviolent protest movement; in the mid 60 s the key civil rights statutes like the Civil Rights Act and the Voting Rights Act passed; and in the late 60 sand early 70 s the federal courts reached their greatest vigor in enforcing racial desegregation of schools through measures such as busing orders. During this same period in church-state matters, the Supreme Court made dramatic moves toward the strict form of church-state separation ism. In the 1960 s it struck down the longstanding practices of official prayers and Bible readings in the public schools, 5 and in the early 1970 s, in decisions such as Lemon.
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Kurtz man, 6 it began to restrict severely the provision of 4347 U. S. 483 (1954).
5 Engel v. Vitale, 370 U.
S. 421 (1962); Abington School Dist. v. Schempp, 374 U. S. 203 (1963).
6403 U. S. 602 (1971); see also Committee for Public Education v. Nyquist, 413 U. S. 756 (1973); Sloan v.
Lemon, 413 U. S. 825 (1973); Meek v. Pittenger, 421 U. S. 349 (1975).
3 government aid to religious schools. In these years the dominant ideal for church-state matters not only in the courts, but more broadly among cultural elites such as the media, educators, and the government bureaucracy. This section explores some possible relations between these two concurrent developments: it suggests how certain interpretations of the civil rights movement contributed to the cresting of church-state separation ism and to separation ism’s distinctive features. A. Emphasis on Minority Rights At the most general level, the 1960 s’ concern with the unjust treatment of blacks contributed to, and helped to reinforce, a concern for the treatment of other minorities, including religious minorities.
A pervasive theme of the Warren Court’s work, as various scholars have emphasized, was “to champion the legal position of the underdog and the outsider in American history”7 -to carry out the notion of footnote 4 of Carolene Products, that the courts should show special solicitude for “discrete and insular minorities”8 who are subject to discrimination and other mistreatment by the majority. African Americans, of course, were ” the quintessential discrete and insular minority.” 9 But the label could also apply, with a bit of a stretch, to those who publicly dissented from the generalized theism reflected in public school prayers – atheists, secularists, and some prickly Christians who thought the prayers were too watered-down. Moreover, the quintessential American religious minority, Jews, denounced official religious exercises as a threat to their equal status – partly because some such exercises, such as the Lord’s Prayer and the Bible readings in Schempp, were indeed Christian in orientation, 10 but more broadly because the idea of majority rule on public religious ceremonies was dangerous in principle to Jews and other 7 Morton J. Horwitz, The Warren Court and the Pursuit of Justice 13 (1998).
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8 United States v. Carolene Products, 304 U. S. 138, 144 n. 4 (1938).
9 Lucas A. Powe, Jr. , The Warren Court and American Politics 487 (2000).
10 See Schempp, 374 U.
S. at 207-09. 4 minority faiths. 11 B. Ambivalence Toward Religion-Government Interaction In addition, the course of race relations in the 1960 s helped foster an ambivalent attitude among many elites about the public role of religion.
Although the civil rights movement itself had a huge religious component, many in elite culture treated it primarily as a secular movement for social justice. Even for religious elites, their perceptions of the civil rights movement led to an ambivalent attitude toward the intertwining of religion and government. This attitude is exemplified in a theological outlook called “secular theology,” which became popular in the 1960 s among the leaders of mainline or liberal Protestantism, the faith that historically had been the most intertwined with American government and public life. 12 Secular theology arose in the late 50 s and early 60 s as a response to the increasing secularization and urbanization of society. Basically, it taught that Christians should embrace the secular world and become active in its movements. Seculartheology’s best-known manifesto was Harvey Cox’s 1965 book The Secular City; 13 but the theology found its inspiration in some enigmatic lines from the Prison Letters of Dietrich.
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accomplishments and success of civilizations are closely linked to their religious outlook and the role of religion in their governments and society. Throughout history rulers have used the influence of religions to control their populations and provide the justification for their power. A society with a greater degree of separation between religion and government promotes a superior level of ...
