Sunday, May 5, 2013

The Bible, The School, And The Constitution

A Conversation With First Amendment Scholar Steven K. Green

Green discussed his findings with Church & State recently.

Q. What was going on in post-Civil War American culture that made school prayer so contentious?
A. The secession crisis and Civil War diverted public attention away from the growing ethnic and religious diversity in America produced chiefly by foreign immigration. Many people awoke in the late 1860s to the realization that America was no longer a religiously homogeneous (i.e., Protestant evangelical) nation. The consensus over Protestant prayer and Bible reading in the public schools was quickly disintegrating due to opposition from Catholics, Jews, freethinkers and even liberal Protestants. Many Americans, though, still hung to the belief that republicanism and Protestantism were inseparable and essential for the survival of the nation.  The public school was where this battle over the religious identity of America was played out.

Q. In what way did these early battles over religion in public schools shape church-state law?
A. Even though these early legal battles took place in state courts and involved interpretations of state constitutions, the judges and litigants believed the principles at stake were national in scope and central to understandings of American democracy. These controversies forced judges and commentators to articulate those principles in constitutional terms, and they established the legal terminology and arguments that courts would use more than 100 years later.

Q. Roman Catholics began pro­testing prayer and Bible reading in public schools in the 1840s and ’50s. What sort of reception did these complaints receive in the courts and in the larger society?
A. Overall, people and judges were not sympathetic to Catholic complaints about prayer and Bible reading because it threatened their accepted assumptions about the universality of nonsectarian education. Catholic leaders did not help their cause as they were often intransigent in their opposition to public education, whether it was nonsectarian or secular.

Q. What was the Cincinnati Bible War, and why is the legal case that grew out of it important?
A. The Cincinnati Bible War is the name given to a controversy that arose in 1869 which marked the first time that a city school board had discontinued the practice of daily Bible readings. Bible-reading proponents challenged the board’s decision and were able to have the decision reversed by a trial court, over the objection of Judge Alfonzo Taft, father of the future president and chief justice. Taft wrote magnificently about the importance of separation of church and state and how Bible reading was inconsistent with that principle. Three years later the Ohio Supreme Court reversed the trial court and embraced Taft’s opinion, making Ohio the first state to declare Bible reading unconstitutional. In 1963, the U.S. Supreme Court acknowledged the influence of the Cincinnati case in its Abington Township School District v. Schempp decision.

Q. You’ve written several books and law review articles about church-state law in the late 19th century. Why is this period important?
A. The 19th century is important because it serves as the bridge from the Founding period to the Supreme Court’s church-state decisions of the 20th century. Particularly with respect to both Bible reading and public funding of religious schools, there was no public school system or practice of education funding during the Founders’ generation. Those systems developed during the 19th century, so the way in which church-state attitudes evolved during that century are highly significant.
Q. In your book, The Bible, the School and the Constitution, you discuss the School Question. What was the School Question and why was it important?
A. The School Question was the name given to the two interrelated controversies about religious instruction in public schools and the public funding of private schools.  During the 19th century those issues were intertwined more so than today. Public education was more religious (Protestant oriented) then, which drove many Catholics to create parochial schools. Catholics then demanded a share of the public school funds for their schools, but they generally were unsuccessful. Though Catholics had valid complaints about the Protestant character of early public education, many schools attempted to accommodate Catholic children by making their programs more secular. This trend failed to satisfy most Catholics, who continued to seek public funding for their schools.

Q. Horace Mann is an important figure from this period. Mann is often vilified by the Religious Right. Who was Mann and what role did the play in this drama?
A. Mann, first head of the Massachusetts department of education, was troubled over the distinctly Protestant character of early public education and sought to make education more accessible to all children by having schools teach only “universal” Christian values. Though he was misguided about the ability to identify universal religious values upon which everyone could agree, his was a sincere effort to make public schooling less sectarian.

Q. How did Mann and other reformers define “nonsectarian” education?
A. All 19th-century educators believed their systems were nonsectarian. However, Mann and his fellow reformers defined it in a more reli­gi­ously inclusive way than had been the prevailing view. But Mann did not see his system of nonsectarian education as being secular. Advocates of secular education did not emerge until after the Civil War. These later reformers believed that a truly nonsectarian educational system was impossible, as it would always reflect some religious perspective. In this sense they concurred with Catholic indictments of nonsectarian education.

Q. In the late 19th century, a U.S. senator named James G. Blaine attempted to resolve these issues with a constitutional amendment. What was the Blaine Amendment and in your view, was it anti-Catholic as is sometimes asserted?
A. By 1875, the controversies over public school Bible reading and funding of religious schools were tearing communities apart. Many people proposed resolving the conflict through some type of constitutional amendment. Politicians, such as James Blaine, saw the political opportunities behind politicizing the controversy, so Blaine jumped on the constitutional bandwagon by proposing an amendment to prohibit states from providing funding for religious schools. As the leading con­tender for president in 1876, Blaine, like most Republicans, hoped this would align his party with public education while associating the Democrats with the Catholic Church. Although many Republicans sought to heighten anti­-­Catholic sentiment through the Blaine Amendment, other people, including several Catholic legislators, sup­ported alternative versions of an amendment out of the sincere hope of resolving the School Question controversy. In the end, the Blaine Amendment failed because people believed Rep­ublicans were co-opting the idea for political gain. So it is true that some people supported the Blaine Amendment out of anti-Cath­olic animus; yet others supported it for altruistic reasons. Critics of the Blaine Amendment and re­lated state provisions are wrong, however, to associate the noble principles those measures represent with the motivations of some of their supporters.

Q. The leading U.S. Supreme Court case dealing with Bible reading turns 50 years old next month. Yet we still fight over this issue. Legislators in Mississippi, for example, just passed a bill to foster school prayer. As America becomes more diverse, do you have any hope that we will ever put this issue to rest?
A. So long as lawmakers believe they can gain mileage by manipulating the school prayer issue, then there will be no end to prayer and Bible reading proposals. These efforts are cynical as they play on fears and misperceptions among religious conservatives about the Supreme Court’s holdings. Students enjoy many freedoms of religious expression in schools, but enforced religiosity is not a cure for society’s ills.

Q. Is there anything else you would like to add?
A. Chiefly, as we mark the anniversary of these seminal decisions, we should acknowledge that they were not cases of first instance; rather, they built on a long-developing body of jurisprudence that was affirming the centrality of religious equality and church-state separation to our nation’s democratic system.   

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