Each
year the Fellowship of Reconciliation presents a Pfeffer
Peace Prize to honor those around the world committed to
work for peace with justice. Leo Pfeffer, who died in 1993,
was a distinguished jurist and America’s leading theoretician
on the separation of church and state. In one of the cases
he argued before the Supreme Court of the United States,
the decision for the Everson case, included the words “separation
of church and state.” He is the author of Church,
State and the Berger Court.
This
article is abridged from Speak Out Against the New Right
edited by Herbert F. Vetter (Boston:
Beacon Press, 1982)
The concept that true religious freedom mandates a separation
of church and state is peculiarly American. It was written
into the Constitution as the first words of the First Amendment
because the American people, under the intellectual and
moral leadership of Jefferson, Madison, Tom Paine and George
Mason, would not otherwise accept the Constitution and declare
it to be the supreme law of the land.
Under our system of separation of powers, the judicial system,
and ultimately the Supreme Court, became the final arbiter
in relation to the meaning of the Constitution and all its
parts, and this included the First Amendment, the opening
words of which mandate that "Congress shall make no
law respecting an establishment of religion or prohibiting
the free exercise thereof." It was Jefferson who first
used the phrase "the separation of church and state"
to describe the meaning of the phrase, although it was Paine
who, earlier, in Common Sense, epitomized the unity
of church-state separation and religious freedom in the
statement that, "as to religion, I hold it to be the
indispensable duty of our government to protect all conscientious
professors thereof, and I know of no other business which
the government hath to do therewith."
In 1962 and 1963 the Supreme Court ruled that prayers in
the public schools violate the Establishment Clause. Reagan,
Helms, and the Moral Majority have not been happy with these
decisions, but they were not the first to manifest their
unhappiness. In the almost two decades since the decisions
were handed down, numerous efforts were made towards the
adoption of a constitutional amendment overruling the decisions.
All have proved unsuccessful and because during this period
the Supreme Court has shown no indication of itself either
overruling the decisions or sanctioning ill-disguised efforts
to evade them.
The purpose of the amendment is to leave the question of
constitutionality exclusively in the hands of state legislatures
and courts. Legislators, and, to a somewhat lesser extent,
judges who are not appointed for life but must look to the
voters for reelection, are far more amenable to political
pressures than are federal judges and particularly Supreme
Court justices. It is, therefore, almost a certainty that
many state courts, especially in the South, will uphold
public school prayer. Adoption of the Helms proposal would
thus mean the frustration of what has heretofore been deemed
a binding determination by our highest tribunal that public
school prayer violates the First Amendment, not in some
but in all states.
Many, perhaps most constitutional lawyers believe that if
the Helms amendment were adopted, the Supreme Court would
hold it unconstitutional. Nothing, however, is certain in
law, and we must consider the possibility that the measure
would survive court challenge. What then?
One should, however, not assume that the Moral Majority
and its allies will be content with the local option. Nor
will they be content with limiting their efforts to legislation
affecting only public schools. Their concern now encompasses
governmental funding of religious schools as well, and,
as will be discussed later, to arenas having no direct relationship
to education at all, such as that of abortion.
For many years the staunchest opponents of governmental
financed aid to parochial schools have been southern Protestants.
The sponsors of the measure to provide aid that is now most
forcefully urged upon Congress, with the blessings of Mr.
Reagan, are Senators Packwood and Moynihan, who represent
respectively the northern states of Oregon and New York,
and who are both moderately liberal in their politics. However,
the Supreme Court's exclusion of prayer and the rigorous
federal court enforcement of the Brown v. Board of Education
segregation decision have impelled reconsideration by many
right-wing legislators and fundamentalist churchmen in the
South of their anti-aid position.
Reconsideration has resulted in a comparatively new phenomenon
in American education, the southern fundamentalist parochial
school that welcomes prayer and Bible but manages to escape
from the Blacks. When the Court handed down its 1962 decision
forbidding prayer in the public schools, the response by
Representative George W. Andrews of Alabama was typical.
"They put Negroes in the schools," he said, "and
now they've driven God out." These schools are seeking
and sometimes getting governmental funding not merely in
the form of tax-exemption (a suit by Bob Jones University,
now before the Supreme Court, challenges revocation of its
tax exemption because it forbids interracial marriage or
dating among its students) but also of subsidization, either
in cash or its equivalent. This trend is manifested in a
suit by Americans United for Separation of Church and State
challenging a grant by the federal government to the Valley
Forge Christian College of some 77 acres of land and buildings
with an assessed value in excess of $1,000,000.
These cases involve federal action, and the Helms device
will obviously not do. It is hardly likely that a Republican
Congress will pass, or the President will approve, a measure
that nullifies all constitutional law respecting Supreme
Court jurisdiction beginning with John Marshall's 1803 decision
in Marbury v. Madison. Even where a Helms barrier would
apply, the Moral Majority and other constituents of the
new right, are certainly not going to be content with it.
What they aim for are laws affecting all people in all states,
north no less than south of the Mason-Dixon line. They want
devotional Bible reading and prayer recitation even in states
where the legislatures will not enact permissive laws or
where the state courts would declare the laws unconstitutional.
If parents will not insure salvation for their children,
the government must do so, with or without the cooperation
of state courts or legislatures.
Nor, for that
matter, are they content with legislation affecting education.
They seek governmental action, by law and law enforcement
agencies, which will remove pornographic magazines from
newspaper stands, peep shows from Times Square, and immoral
books from libraries and book stores.
They want also an end to abortion and here (as in the case
of aid to religious schools) they have joined Catholic Church
leadership in efforts to achieve this. In the 1973 case
of Roe v. Wade, the Supreme Court ruled that a state may
not restrict abortions during the first trimester of pregnancy.
However, it later ruled that it is not unconstitutional
for federal or state governments to refuse to finance abortions
for women who cannot economically afford them.
In this instance as well as the others mentioned in this
chapter, the measure will represent an effort on the part
of the radical right coalition not only to repeal the provision
in the Constitution declaring that it is the Supreme Law
of the land but also to transform what is now the Supreme
Court into a very inferior court, at least in respect to
the fundamental freedoms of the American democratic system.
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