LEADING TO THE MISINTERPRETATION OF THE “WALL OF SEPARATION” METAPHOR
Justice Hugo Black egregiously manipulated Jefferson’s words and intent. Black’s malfeasance stands as possibly our nation’s most disgraceful example of an attack against Christianity and misuse of the legal system. Why would a Supreme Court justice behave in such an inappropriate manner? The answer may lie in Black’s history:
Black might have had darker motives behind his opinion. He had been a member of the Ku Klux Klan in the 1920’s when the Klan was deeply resentful of the growing influence of Catholicism in the United States. According to Hugo Black, Jr., his father shared the Klan’s dislike of the Catholic Church: “The Ku Klux Klan and Daddy, so far as I could tell, had one thing in common. He suspected the Catholic Church. He used to read all of Paul Blanchard’s books exposing the power abuse in the Catholic Church. He thought the Pope and the bishops had too much power and property. He resented the fact that rental property owned by the Church was not taxed: he felt they got most of their revenue from the poor and did not return enough of it.”
Reading Hugo Black Jr. raises the frighteningly familiar concept of Marx’s class struggle. As if this was not bad enough, Black also declared that the religion clauses of the First Amendment, which were intended to be a check on the federal government, were now applicable to state and local governments, and in this way, the “wall of separation” would henceforth attach to every case or controversy arising under the establishment clause of the free exercise clause.
Black succeeded in creating a new definition of “wall of separation” and then mandated that this new definition would forevermore be applied to all cases dealing with religion. The court in Everson interpreted the “separation” phrase as requiring the federal government to remove religious expressions from the public arena. This is the complete opposite of the First Amendment’s meaning. Now the First Amendment is no longer a limitation on government interference. It is now a limitation on religious expression and principles.
Black is transparent and his motives are quite clear when he opted not to publish Jefferson’s letter in full, which is actually very short. Instead, he published only the eight words to which Black attaches his new definition. What we see here is Black using the techniques of avoiding the whole truth and mis-defining words. Barton Summarizes the perverse nature of Black’s decision:
Furthermore, the Court did not give the context of the phrase, or Jefferson’s numerous other statements on the subject; in fact, it did not even mention that previous Supreme Courts had used Jefferson’s letter to preserve religious principles in public society rather than remove them. In short, that 1947 Court was the first to divorce Jefferson’s metaphor from its context and then apply it in a manner exactly opposite to Jefferson’s clearly articulated intent.
How did all this go wrong? What was the legal situation that was such a First Amendment catastrophe? The catalyst that threw our nation into one of religious intolerance was created in Everson. In the 1940’s in some jurisdictions, most schools were Catholic, and it is within this environment that the controversy was addressed. A New Jersey statute authorized its local school districts to make rules and contracts for the transportation of children to and from schools. The township board of education authorized reimbursement to parents of money for the bus transportation of their children. Part of this money was for the payment of transportation to Catholic parochial schools, which of course, gave their students religious instruction. The New Jersey statute was challenged as a “law respecting an establishment of religion.” This is the nidus of the problem. Mere transportation was deemed respecting the “establishment of religion.” The court set about redefining transportation.
Justice Black summarized the importance of religious freedom and religious practices from the founding of the original colonies to his present day. Black used one paragraph to describe what the “establishment of religion” clause of the First Amendment meant but ended his paragraph by opening a door to judicial mischief:
The “establishment of religion” clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by laws was intended to erect “a wall of separation between Church and state.” [Emphasis added.]
The bold sentence is the point where Black completes his manipulation. Black set the stage early in the paragraph. He slipped in the following sentences to support his conclusion: “Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” Black is plainly wrong on two accounts. First, federal government disallows the establishment of a national religion. It says nothing about the states. Many states had a preferred religion . . . Secondly, the First Amendment says nothing about aiding a religion. In fact, our federal government has always aided religion and still aids religion today. Black shifts the scope from a narrowly intended theory to this amazingly overbroad, generalized list of non-tolerance and non-support. It is here that justice Black morphed Jefferson’s words from Jefferson’s original concept of a wall of non-interference, as we saw above, into a concept of a wall of non-support. Ironically, Justice Black goes on to decide the case in favor of the New Jersey statute and even remarks:
That Amendment requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions then it is to favor them.
Again, Black is distinctly wrong. The First Amendment does not require the federal government to be neutral to religion. Once again Black shifts the scope of the subject when he states, “State power is no more to be used so as to handicap religions than it is to favor them.” The word “state” can be used to mean the state as in a federal government or a state as in thirteen states. He is not clear but his ambiguity echoes his attempt as seen in the first paragraph when he uses, “Neither a state or federal government” to change the focus of the First Amendment from the federal government to the states.
Justice Black gives with one hand and takes away with the other. He concludes his opinion by stating, “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.” Justice Black created a bomb but decided not to use it in the Everson case. Ironically his decision aided religion in the short term.
Barron et al, in their textbook Constitutional Law, summarize the significance of the Everson case. Everson’s incorporation of the non-establishment principle as a part of due process liberty, which limits state power, essentially doomed the narrow concept that the national government would not interfere with state prerogatives in the religious sphere. As Barron, et al note, “justice black in Everson condemned ‘aid to religion’ as an invalid establishment.”
Was Justice Black unable to comprehend the Constitution? Unfortunately, the answer to that question is probably no. It is more likely that Black’s tortured manipulation of Jefferson’s letter was a purposeful first shot fired in the Supreme Court’s attack on Christianity based on Black’s fear of Catholicism.
Mark Levin, Men in Black: How the Supreme Court is Destroying America (Washington: Regnery, 2004) 43. Here Levin quotes from Gerald T. Dune, Hugo Black and the Judicial Revolution (New York: Simon & Shuster), 269. Quoting form Hugo Black, Jr., My Father (New York: Random House, 1975), 104.
David Barton, Separation of Church & State: What the Founders Meant (Aledo: Wallbuilders, 2007), 5.
Everson v. Board of Education, 330 U.S. 1, 67 S. Ct. 504, (1947).
Jerome Barron, C. Dienes, Wayne McCormack and Martin Redish, Constitutional Law: Principles and Policy, 5th ed. (Charlottesville: Michie, 1996), 1238.