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Co-operation of Church and State - Part II
In the Supreme Court

by Fr. John A. Hardon, S.J.

Certain cases like the most recent discouragement of state movie censorship or the reputation for moral relativism in men like Oliver Wendell Holmes and Fred Vinson tend to obscure the authentic tradition of the nation’s highest judiciary body. With rare exception the Supreme Court has consistently recognized that most Americans are citizens of two societies, Church and State, and that consequently they have rights and privileges which no political power may take from them.

The purpose of the present study is to review the classic decisions in which the Supreme Court of the United States has proved its character of guardian of the people’s rights to worship and believe in God according to their conscience. Although Catholics figure in only one of these decisions, they are all very pertinent to the current problem which faces the Church in America of protecting her divinely committed interests for the salvation of souls.

Inviobility of Church-Affiliated Institutions

One of the earliest decisions of the Supreme Court on the relation of Church and State involved the juridical status of Dartmouth College in New Hampshire. In 1769 Dartmouth was chartered by the English Crown as a Congregational institution of higher learning. Ten years later a change in the board of trustees created a rift between the first founders and the new incumbents who changed the name to Dartmouth University and framed another constitution. This provided for a council of overseers appointed by the governor of the state, an annual inspection under state supervision and, in general, a reorganization of the school from a private church-affiliated college to a state university.

Action was brought against the innovators on the grounds that they had violated the charter by which the school was founded. In 1817 the Supreme Court of New Hampshire declared against the objectors that since the institution had become public in character it was subject to state control. A year later the case was brought to the U.S. Supreme Court, where Daniel Webster pleaded in favor of Dartmouth College and won a decision which restored its original status.

In delivering the majority opinion, Chief Justice Marshall stated that “Dartmouth College is an eleemosynary institution, incorporated for the purpose of perpetuating the application of the bounty of the donors to the specified objects of that bounty.” It is “not a civil institution, participating in the administration of government, but a charity school, or a seminary of education.” Moreover, “almost all eleemosynary corporations, those which are created for the promotion of religion, of charity, or of education, are of the same character. The law of this case is the law of all.” Consequently, “this is a contract, the obligation of which cannot be impaired without violating the Constitution of the United States.” [1] Historians of constitutional law believe that this decision “stands out as one of the great contributions made by government in this country to the Churches, for it protects their property from spoliation by the State,” [2] a phenomenon so familiar in countries like Italy, France and Spain.

Restrictions of Religious Liberty for the Common Good

The historic instance where religious liberty had to be curtailed for the national welfare concerned the Mormon practice of polygamy. Joseph Smith, who founded the Mormons in 1830, claimed he had learned by divine revelation that plural marriage was permissible. Accepted as an article of faith by his followers, polygamy became the main source of trouble for “The Latter-Day Saints” during the fist sixty years of their existence. As early as 1860 a bill was introduced in the House of Representatives “to punish and prevent the practice of polygamy and prevent the practice of polygamy in the Territories of the United States.” Passed by the Senate and House, the legislation remained inoperative because Mormon jurors would not convict their co-religionists. Moreover, the law was attacked as an unwarranted interference with religious freedom. Contested in the lower courts, it finally reached the Supreme Court of the United States which upheld (1878) the constitutionality of anti-polygamy legislation.

The basis of the Court’s decision was a concept of religious liberty which forbids the practice of such acts as are commonly regarded as criminal or immoral. “There has never been a time,” the Court declared, “in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life.” [3]

The Court then distinguished between internal convictions and external practices. Civil laws, it said, “are made for the government of actions, and while they cannot interfere with the mere religious belief and opinions, they may with practices.” Suppose, for example, “one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or, if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?” [4] The same is true in this case. “As a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” [5]

Yielding to circumstances, the Mormons amended their church doctrine by substituting “spiritual” polygamy for physical plural marriages.

Freedom to Propagate the Christian Religion

The Christian character of the American people was openly professed in a decision of the Supreme Court (1892) interpreting the federal law which prohibited “the importation and migration of foreigners and aliens under contract to perform labor in the United States.” It was decided that the law did not apply to a contract whereby an Episcopalian minister residing outside the United States agreed to become pastor of a church in this country.

In giving its unanimous judgment, the Court proclaimed that “the people of this country profess the general doctrines of Christianity as the rule of their faith and practice.” One evidence for this is the fact that the law punishes those who “revile, with malicious and blasphemous contempt, the religion professed by almost the whole community,” and does not take the same critical attitude toward “like attacks upon the religion of Mahomet or of the Grand Lama.” Behind the discrimination is “this plain reason, that the case assumes that we are a Christian people, and the morality of the country is deeply engrafted upon Christianity, and not upon the doctrines or worship of those imposters.” If we further examine the whole of American life “as expressed by its laws, its business, its customs and its society, we find everywhere a clear recognition of the same truth. Among other matters note the following: The form of oath universally prevailing … the laws respecting the observance of the Sabbath … the churches and church organizations which abound in every city, town and hamlet; the multitude of charitable organizations existing everywhere under Christian auspices; the gigantic missionary associations, with general support, and aiming to establish Christian missions in every quarter of the globe. These, and many other matters which might be noticed, add a volume of unofficial declarations to the mass of organic utterances that this is a Christian nation.” Confronted with such evidence, “shall it be believed that a Congress of the United States intended to make it a misdemeanor for a church of this country to contract for the services of a Christian minister residing in another nation?” [6]

This national profession of faith was repeated with approval by the Supreme Court in 1930, when it stated, “We are a Christian people, according to one another the equal right of religious freedom, and acknowledging with reverence the duty of obedience to the will of God.” [7]

Freedom of Education Under Religious Auspices

One decision of the Supreme Court which Pope Pius XI used in his encyclical on Christian Education involved the Oregon education law, adopted November 7, 1922, and scheduled to take effect September 1, 1926. By a popular referendum vote of 115,000 to 103,000, Oregon passed a law requiring parents and guardians to send all children between the ages of 8 and 16 “to public school.” Failure to comply was to be punished as a misdemeanor. The constitutionality of the measure was contested in the Supreme Court by the Society of the Sisters of the Holy Names of Jesus and Mary, conducting orphanages, parochial schools and junior colleges. Governor of Oregon at the time was Walter Pierce; hence the case is known in legal history as Pierce vs. Society of Sisters.

A unanimous decision was rendered on June 1, 1925, invalidating the compulsory education act as interfering with religious freedom. The judges took the position that if the statute were carried into effect, it would force the closing of private schools; they also upheld the contention of the Sisters that, “the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void.” [8]

Chief Justice McReynolds read the judgment of the Court. He first pointed out that “No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.” [9]

But the Oregon school law went far beyond this. In the opinion of the Court, “we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control… Rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” [10]

This has generally been considered one of the wisest decisions of the Supreme Court in voiding a state law as unconstitutional. Pius XI praised it as a declaration, based on the natural law, that the State has no authority “to fix a uniform standard of education by forcing children to receive instruction exclusively in public schools.” [11]

Religious Freedom from Civil Duties and Practices

In the past thirty years, the Jehovah’s Witnesses have figured in more cases of religious freedom tried before the Supreme Court than any other denomination, in fact, more than all other religious bodies combined. Between March, 1938, and April, 1955, they were defendants in forty-six trials, with the majority decided in their favor. In 1938, e.g., the Court ruled that a city ordinance in Griffin, Georgia, prohibiting distribution of literature without permission, was a violation of the First Amendment. Two years later a Connecticut conviction of the Witnesses for playing phonograph records which attacked the Catholic Church was held to abridge freedom of worship. Doctrinally the Witnesses claim that all civil authority is derived from the devil, with no right to command obedience from the citizens, especially to engage in military service. Most of the litigations, therefore, have centered around exemptions from the draft. Legally the Witnesses argue principally from their status as conscientious objectors and as ministers of the Gospel for every member of the Watch Tower Society, and they have been regularly victorious.

The outstanding issue of religious liberty raised by the Jehovah’s Witnesses concerned the compulsory flag salute. Witnesses refused to salute the flag and forbade their children to do so because, they said, this violates the First Commandment of God which prohibits the worship of any graven image. Their refusal caused resentment, and some seventeen States passed laws requiring all school children to salute the flag under penalty of expulsion if they refused. The question of whether these laws unconstitutionally restricted religious freedom came to the Supreme Court in 1940 and again in 1943. In the first trial, the Court decided against the Witnesses, but this provoked such a storm of protest that the decision was reversed three years later.

In delivering the opinion of the Court, Justice Jackson isolated the problem as a question affecting the national unity. In favor of compulsory flag-saluting it was urged that since national unity is the basis of national security, civil authorities have the right to select appropriate measures for its attainment, including coercion. But this, the Court objected, is contrary to the spirit of the American government. “There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.” [12]

Advocates of compulsory unification claim that freedom to be spiritually diverse or even contrary will disintegrate the social organization of our country. The Court disagreed, calling this “an unflattering estimate of the appeal of our institutions to free minds.” Rather, “we can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great.” [13] But even if the issue were far more significant, the right to diversity of opinion would still remain, since “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” [14]

If there is any fixed star in our Constitution, Jackson concluded, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” Consequently, the action of the local authorities in compelling the Witnesses to salute the flag “invades the sphere of intellect and spirit which it is the purpose of the First Amendment… to reserve from official control.” [15]

Freedom from Prosecution for Religious Belief

The most celebrated case in modern times showing the reluctance of the State to interfere with religious convictions came before the Supreme Court in 1943. It was the case of a fantastic religious group called the “I am Movement,” organized in Los Angeles by Guy W. Ballard. He claimed to be in touch with certain “ascended masters,” chief of whom was St. Germain, and from these saints he received the communications which constituted the new religion. The climax was reached when St. Germain and Christ Himself were said to have appeared and allowed an artist to paint their portraits from life. Reproductions of these pictures and copies of the revelation were sold to the believers. Wife and son, Edna and Donald Ballard, successors to Guy, were convicted by the Federal Government of using the mails to defraud. They appealed to the Supreme Court which reversed the decision of the lower courts.

Justice William Douglas wrote the majority opinion, defending the rights of the Ballards to their peculiar beliefs. He explained that “The First Amendment has a dual aspect. It not only forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship, but also safeguards the free exercise of the chosen form of religion.”

Freedom of religious belief, the Court stated, is essential to the American way of life. “It embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths. Heresy trials are foreign to our Constitution. Men may believe what they cannot prove. They may not be put to the proof of their religious doctrines or beliefs. Religious experiences which are as real as life to some may be incomprehensible to others. Yet the fact that they may be beyond the ken of mortals does not mean that they can be made suspect before the law.” [16]

No doubt the religious views espoused by the “I Am Movement” might seem incredible or even preposterous to most people. “But if those doctrines are subject to trial before a jury charged with finding their truth or falsity, then the same can be done with the religious beliefs of any sect. When the triers of fact undertake that task, they enter a forbidden domain. The First Amendment does not select any one group or any type of religion for preferred treatment. It puts them all in that position.” [17]

Mrs. Ballard and her son were acquitted. There were two dissenting opinions on matters of procedure, but they did not question the basic position of the majority opinion. Justice Robert Jackson even declared that “I would dismiss the indictment and have done with this business of judicially examining other people’s faith.” [18] The Supreme Court verdict has contributed materially to the spread of some twenty similar cults, imitating the “I Am Movement” and generally called “New Thought,” which claim to have a membership of several million.

“Released Time”

A forthright statement of harmony between Church and State was made by the Supreme Court in its decision on the Zorach school case of 1952.

According to the New York State Education Law, provision is made for absence during school hours for religious observance and education outside the school grounds. Students must obtain written requests for such absence from their parents or guardians. Weekly reports of attendance for one hour a week at religious schools must be filed with the principal or teacher. The Board of Education of the City of New York supplemented the State regulations by forbidding any religious announcement in the public schools, and placing on the religious organizations and parents the full responsibility for children’s attendance at religious instruction.

This “released time” program was challenged by the appellants, Tessim Zorach and Esta Gluck, on the grounds that “the weight and influence of the school is put behind a program for religious instruction; public school teachers police it, keeping tab on students who are released; the classroom activities come to a halt while the students who are released for religious instruction are on leave; the school is a crutch on which the churches are leaning for support in their religious training; without the cooperation of the schools this ‘released time’ program, like the one in the McCollum case, would be futile and ineffective.” [19]

Mr. Justice Douglas read the majority opinion (6 to 3) which upheld the New York State and City education laws. Fundamentally the appellants objected on the principle of separation of Church and State demanded by the First Amendment. The Court refuted their claim with a distinction that may become the basis for a new era in religio-civil cooperation in America.

First Amendment Does Not Mean Complete Separation

“There cannot be the slightest doubt,” it was conceded, “that the First Amendment reflects the philosophy that Church and State should be separated. And so far as interference with the ‘free exercise’ of religion and an ‘establishment’ of religion are concerned, the separation must be complete and unequivocal. The First Amendment within the scope of its coverage permits no exception; the prohibition is absolute.” [20]

But there is danger of reading into the Constitution more than it obviously means. “The First Amendment does not say that in every and all respects there shall be a separation of Church and State … Otherwise, the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups. Policemen who helped parishioners into their places of worship would violate the Constitution. Prayers in our legislative halls; the appeals to the Almighty in the messages of the Chief Executive; the proclamations making Thanksgiving Day a holiday; ‘so help me God’ in our courtroom oaths—these and all other references to the Almighty that run through our laws, our public rituals, our ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic could even object to the supplication with which the Court opens each session: ‘God save the United States and this Honorable Court.’” [21]

For anyone to oppose released time for religious instruction is to ignore the most cherished traditions of our country and to support those who are hostile to all religious values. “We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary … When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That wold be preferring those who believe in no religion over those who do believe… We find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.” [22]

Reactions to the Zorach Decision

The Zorach decision evoked two kinds of opposite reaction in the public mind, typical of the unnatural tension which exists between religion and secularism in the United States. Critics of the Supreme Court accused it of promoting “state coercion in behalf of religious programs [and] state discrimination between religious and nonreligous citizens [which] can do infinite damage to the future stability of the American principle of church and state separation.” [23] Catholics and Christians generally rejoiced at the realism which the Court showed in refusing to separate Church and State into two hostile camps. “What happened will encourage those who refuse to believe that the religious differences within the community make it necessary to abandon the field entirely to the agnostics, the atheists and the secularists.” [24] The judges recognized that the prominence of religion in our national life is not a mere accident of history; it is an expression of the law of nations, that obedience to the will of God is the foundation of civil society.

In the preceding summary of cases, no attempt was made to interpret the decisions of the Supreme Court and appraise their relevance to the Catholic Church. When such an appraisal is made, it will conform in a marvelous way the growing conviction among American Catholics that our judiciary history is basically favorable to the Church’s interests. It should also be an incentive to consolidate the benefits already gained and not allow minority forces inimical to Catholicism to use the nation’s courts—especially the Supreme Court—to propagate irreligion and hinder the Church’s apostolate.


[1] “The Trustees of Dartmouth College vs. Woodward,” Leading Constitutional Decisions (R. E. Cushman, ed.), New York, 1947, pp. 181, 183.

[2] Anson P. Stokes, Church and State in the United States, New York, 1950, Vol. I, pp. 637-638.

[3] Reynolds vs. United States,” ibid., Vol. II, p. 62.

[4] Ibid.

[5] Ibid.

[6] “Church of the Holy Trinity vs. United States,” Ibid., Vol. III, p. 572.

[7] “Macintosh vs. United States,” United States Reports, Vol. CCLXXXIII, p. 625.

[8] “Pierce vs. Society of Sisters,” Cases on Constitutional Law (N.T. Dowling, ed.), Brooklyn, 1950, p. 1057.

[9] Robert A. Maurer, Cases on Constitutional Law, Rochester, N.Y., 1941, p. 615.

[10] Ibid., pp. 615-616.

[11] Pius XI, Christian Education of Youth, New York (Paulist Press), p. 14.

[12] “West Virginia Board of Education vs. Barnette,” Leading Constitutional Decisions, p. 131.

[13] Ibid.

[14] Ibid.

[15] Ibid., pp. 131, 132.

[16] “United States vs. Ballard,” Church and State in the United States, pp. 374, 375.

[17] Ibid., p. 375.

[18] Ibid.

[19] Supreme Court of the United States, No. 431 (Private Printing), p. 2.

[20] Ibid., p. 4.

[21] Ibid.

[22] Ibid., p. 5.

[23] The Christian Century, May 14, 1952, p. 583.

[24] Boston Pilot, May 3, 1952.

Homiletic and Pastoral Review
Vol. 57 - #5, February 1957, pp. 419-427

Copyright © 1998 by Inter Mirifica

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