Political Orphans
How the Democratic Party Left Traditional Believers Behind
by James Hitchcock
In 1943 the United States Supreme Court dramatically reversed itself on the matter of church and state. In the Barnette case it found that children could not be required (on pain of expulsion) to recite the Pledge of Allegiance in public-school classrooms if that violated their religious beliefs. But Justice Felix Frankfurter dissented, passionately supporting the Court’s earlier decision to the contrary (Gobitis, 1940). He argued that a state could reasonably conclude that certain religiously motivated behavior (such as the refusal of Jehovah’s Witnesses children to participate in a mandatory classroom flag salute) tended to undermine national unity—an important social value. Frankfurter therefore held that public schools could expel children who refused (on religious grounds or otherwise) to participate.
But the Court’s seeming new solicitude for religion soon went in the opposite direction. In two cases following World War II (Everson, 1947; McCollum, 1948) a nearly unanimous Court ruled that “separation of church and state,” a phrase not found in the Constitution, was intended to define the relationship of religion and public life and that there was a constitutional duty to expunge all traces of religious influence from public institutions, a principle that was applied with increasing rigidity until the 1990s, when for the first time it became a matter of serious contention within the Court itself.1
The seeming contradiction between the Court’s new vigilance for religious liberty and its equally strong conviction that religion should be excluded from the public square was explained in 1948 by Justice Wiley Rutledge, who misconstrued Acts 22:28 by recalling that Paul had said that his freedom was bought at a great price. (In fact Paul said that his freedom was his birthright.) All religious believers, Rutledge warned, must buy their freedom at a price, and the unhindered right to practice one’s religion in private necessarily demanded that it be restricted in public.
Roots of Alienation
Although Supreme Court rulings have applicability mainly to governmental agencies like public schools, the separationist philosophy first articulated in 1947 has set the direction for American life in general ever since, as a growing number of people have approached religion as potentially a dangerous phenomenon, which must be kept as private as possible.
One key to understanding the Court’s new position in 1947 is to notice that each of the justices who fashioned the separationist philosophy was alienated to some degree from the religion of his own youth (Frankfurter from Judaism, for example, Rutledge from the Southern Baptists) and seemed personally to think that orthodox faith was narrow, irrational, even dangerous.
The proximate causes of this attitude were perhaps two famous events of the 1920s—the legal prohibition of alcohol and the trial of John Scopes, which found that the teaching of evolution could be forbidden by law. Not widely noticed at the time, many of the American elite—academics, professional men, government officials, even some business leaders—seem to have concluded that traditional religion was socially damaging, that it stood in the way of progress, and that its influence had therefore to be curtailed.
The ultimate rationale for this was the claim that the Founding Fathers of the United States had been appalled by the specter of religious strife in Europe and realized that any religion that “intruded” itself into public life would have the same effect in America. Thus, the Constitution was intended to restrain all religions for the sake of civil peace.
In 1937, President Franklin D. Roosevelt was thwarted in his famous “court-packing” plan, his effort to increase the size of the Supreme Court in order to gain its approval for his various New Deal programs. There is no evidence that Roosevelt, a conventional Episcopalian who often invoked God in his speeches, intended that the Court should revolutionize the First Amendment as it applied to religion. However, he appointed all the justices who effected that revolution, and it was probably not coincidental that a philosophical commitment to the New Deal led some people in that direction.
James Hitchcock is Professor emeritus of History at St. Louis University in St. Louis. He and his late wife Helen have four daughters. His most recent book is the two-volume work, The Supreme Court and Religion in American Life (Princeton University Press, 2004). He is a senior editor of Touchstone.
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