Men in Black: How Judges Are Destroying America

by Mark R. Levin

  And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally, to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.20

  So, our first president called for a national prayer to God within days of the vote on the Bill of Rights.

  Government interference with religion was relatively modest until the twentieth century. There were few, if any, significant court decisions regarding the religion clauses of the First Amendment for the first 150 years of the republic. During this period, the federal government actually provided direct funding to religious organizations. As Rehnquist has noted: “As the United States moved from the eighteenth into the nineteenth century, Congress appropriated time and again public moneys in support of sectarian [religious] Indian education carried on by religious organizations. Typical of these was Jefferson’s treaty with the Kaskaskia Indians, which provided annual cash support for the tribe’s Roman Catholic priest and church. It was not until 1897, when aid for sectarian education for Indians had reached $500,000 annually, that Congress decided thereafter to cease appropriating money for education in sectarian schools.”21

  In 1947, however, the Supreme Court upended the long-standing balance between the government and religion in a case called Everson v. Board of Education.22 Justice Hugo Black, a longtime admirer of Jefferson, revived a previously obscure metaphor from Jefferson’s writings.23 While president, Jefferson had written to a Baptist community in Danbury, Connecticut, which had congratulated him on his election. Jefferson used his letter to explain why he didn’t call for national days of fasting and thanksgiving, as George Washington and John Adams, his predecessors in office, had done. Jefferson wrote:

  Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting free exercise thereof,” thus building a wall of separation between Church & State.24 [Emphasis added.]

  Interestingly, two days after writing to the Danbury Baptists, Jefferson attended church services held in the House of Representatives and continued as a regular attendant throughout his presidency.25 Although the point of the Danbury letter was to explain why he didn’t issue proclamations for thanksgiving and fasting as president, he used “virtually indistinguishable” language invoking God in other official statements, such as in his annual messages to Congress.26

  But in writing for the court in Everson, Black seized on this idea that a “wall of separation” existed between church and state. 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. The term “wall of separation” was to attach thereafter to every case or controversy arising under the establishment clause or the free exercise clause.

  Everson involved a New Jersey statute that permitted local school districts to create their own rules for transporting children to and from school. The board of education for Ewing Township, New Jersey, which relied on public buses, reimbursed parents for their children’s fares.27 A portion of this money was distributed to parents who enrolled their children in Catholic parochial schools. As one would expect, these schools instructed their students in Catholic religious teachings.

  A taxpayer who lived in Ewing Township brought suit, alleging that the New Jersey statute violated the establishment clause. The Court, however, disagreed. Justice Hugo Black, delivering the majority opinion wrote:

  [New Jersey] cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief.28

  While this affirmed fair treatment of religion in the public sphere, other portions of Black’s opinion established the anti-religious precedent that has done so much damage to religious freedom. He wrote, “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.”29 He added, “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.”30

  According to his biographer, Roger K. Newman, although Black wrote the majority opinion upholding the use of public funds to transport children to Catholic schools, he did so for the purpose of undercutting the true meaning of the religion clauses:

  [Justice Black’s opinion in Everson v. Board of Education] drew criticism from all quarters. Black’s rhetoric and dicta contrasted too sharply with his conclusion and holding to satisfy anyone. If he had not written it as he did, he later said, “[Supreme Court Justice Robert] Jackson would have. I made it as tight and gave them as little room to maneuver as I could.” [Justice Black] regarded it as going to the verge. His goal, he remarked at the time, was to make it a Pyrrhic victory and he quoted King Pyrrhus, “One more victory and I am undone.”31

  Black, therefore, joined the majority in order to thwart them from the inside—and he succeeded. Today, Everson is remembered more for the easily understood “wall” metaphor than for the fact that state funds were used to reimburse the parents of parochial students.

  Black might have had darker motives behind his opinion. He had been a member of the Ku Klux Klan in the 1920s, 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 Blanshard’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.”32

  Whatever the motivation, Everson is an inherently flawed opinion. The implications of Black’s absolutist language lead to absurd outcomes. Bruce Fein, a former associate deputy attorney general of the United States, provided this withering critique:

  On the one hand, Black insisted that the establishment clause prohibited government from offering any type of financial or other support to religion either directly or indirectly: Neither a state nor the federal government can set up a church, whatever form they adopt to teach or practice religion.

  Black, however, seemed to sense the absurdity of his categorical prohibition, which would have required public ambulances to deny service to a cleric who suffered a heart attack while preaching from the pulpit. Accordingly, he immediately retreated from his unbending stance—but without saying so.33

&n
bsp; The fallacy of the “wall” metaphor is plain, but it is still a constant of constitutional law. Such is the power of Supreme Court precedent. In his dissent in the 1985 case Wallace v. Jaffree, Rehnquist pointed this out again:

  It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, expressly freighted with Jefferson’s misleading metaphor for nearly forty years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were pressed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written fourteen years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history to the meaning of the Religion Clauses of the First Amendment.34

  Yet liberals constantly rely on Jefferson’s words to justify their opposition to virtually any government intersection with religion.

  For example, Robert Chanin, general counsel for the National Education Association (NEA), explained that the NEA opposed school voucher programs that include religious institutions because “if a state can take millions of dollars, hand it over to sectarian schools, which is then used to provide a religious education, it seems to me you’ve punched a gaping hole in the wall of separation between church and state.”35 Barry Lynn, the executive director of Americans United for Separation of Church and State, criticized the Supreme Court’s decision to uphold a school voucher program, saying, “The Supreme Court has taken a wrecking ball to the wall of separation between church and state.”36 Ralph Neas, president of a group calling itself People for the American Way, complained about politicians “campaigning from the pulpit,” which “clearly violates the spirit of the founders’ wall of separation between church and state.”37 These left-wing groups and their leadership are clearly out of the mainstream of American thought and tradition, but their views often resonate in judicial chambers.

  As Rehnquist has written:

  The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the “wall of separation” that was constitutionalized in Everson….

  …The “wall of separation between church and State” is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.38

  Despite this, the “wall” is part of the lexicon of many Supreme Court cases that involve religion and it has led to an inconsistent and illogical series of decisions.

  Once again, Justice Rehnquist explained, in his 1985 opinion in Wallace v. Jeffree:

  [I]n the thirty-eight years since Everson our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the “wall of separation” is merely a “blurred, indistinct, and variable barrier,” which “is not wholly accurate” and can only be “dimly perceived.”39

  …[A] State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing “services” conducted by the State inside the sectarian school are forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.40

  It is almost impossible to discern a consistent thread of logic in these cases. This is because the Supreme Court has once again intervened in matters not on sound constitutional grounds, but because it wishes to dictate policy. And in this area of law, lacking a consistent rationale for its decisions, the Court is flailing. Having rejected the plain meaning of the religion clauses, it is forced to concoct ever more nuanced arguments to support its rulings. Two recent cases highlight the problem.

  In 2002, in Zelman v. Simmons-Harris, the Supreme Court ruled that the state of Ohio could provide education vouchers to low-income parents so they could send their children to private secular or religious schools.41

  Writing for a 5–4 majority, Rehnquist noted that the Ohio program did not favor one religion over another: The choice was completely up to the parents. “In keeping with an unbroken line of decisions rejecting challenges to similar programs, we hold that the program does not offend the Establishment Clause.”42

  Still, four of the justices would have overturned the program. Predictably, Justice John Paul Stevens, the most senior (and arguably most liberal) member of the Court, argued, “Whenever we remove a brick from the wall that was designed to separate religion and government, we increase the risk of religious strife and weaken the foundation of our democracy.”43

  Only two years later, in the 2004 case Locke v. Davey, the Supreme Court ruled that a Washington State scholarship program could specifically bar state scholarship funds to students pursuing a degree in theology.44 Joshua Davey—who had won such a scholarship—sued the state and argued that its prohibitions on religious study violated the free exercise, establishment, and free speech clauses of the First Amendment. The Supreme Court’s majority opinion against Davey was written by Rehnquist. On the surface, this seems remarkable, given Rehnquist’s grasp of constitutional history and his past opinions. However, it’s possible that Rehnquist, seeing that a majority of his fellow justices had lined up against Davey, decided that he would write the decision with the intention of limiting its scope and, therefore, its damage to the religion clauses.

  In any event, Rehnquist wrote:

  The Religion Clauses of the First Amendment provide: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two Clauses…are frequently in tension. Yet we have long said that “there is room for play in the joints” between them. In other words, there are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause….

  Under our Establishment Clause precedent, the link between government funds and religious training is broken by the independent and private choice of recipients. As such, there is no doubt that the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology.45

  Rehnquist reasoned that while the state could provide scholarship funds for a student to major in theology, refusing to do so—while funding other majors—is neither discriminatory nor violates the First Amendment.

  The schools, of course, have been a particular battleground in the assault on the free exercise of religion and even mere references to God. The battles started in earnest with the 1962 Supreme Court ruling of Engel v. Vitale, which outlawed state-sponsored prayer in a controversial and dubious decision that was at odds with American history.46

  Over the
years, state restrictions on prayer in school have grown more oppressive and ridiculous, as two recent cases help highlight. In 1992, in Leev. Weisman,47 Justice Anthony Kennedy wrote the Supreme Court’s majority decision that struck down the long-standing practice by Providence, Rhode Island, schools of inviting clergy to give invocations and benedictions at high school graduation ceremonies. Kennedy said that such prayers violated the establishment clause and was specifically concerned with the “coercive” nature of such prayer. Kennedy wrote, “The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion.”48

  This absurdity was picked apart by Professor Vincent Phillip Muñoz in testimony before the Senate Judiciary Committee:

  In Lee v. Weisman, the Court eliminated non-denominational invocations and benedictions at public school graduations. According to Kennedy, to ask public school children to stand respectfully while others pray “psychologically coerces” religious practice. In 2000, the Court prohibited the Texas tradition of non-denominational prayer before high school football games, because, it said, some fans might feel like “outsiders.” Thus interpreted, the “coercion test” secures “the right not to feel uncomfortable” because of others publicly expressing their religious beliefs.49