Hugo Black and the real history of "the wall of separation between church and state"

Commentor anonymous:

...[T]he Supreme Court has been consistent through the history of the United States on the subject to the establishment Clause, with the cases building on each other in a very easy to follow manner. Whine all you want, but this is not a set of precedents that are likely to be overturned any time soon, if ever.

Let's take a closer look at "separation of church and state" in American culture and law.

Of course "a wall of separation between church and state" is found nowhere in the Constitution. It was a casual phrase used by Thomas Jefferson in a personal letter written to the Danbury Connecticut Baptists association in 1802. Jefferson played no role in the ratification of the Constitution, and his personal letters obviously have no credible bearing on Constitutional law.

In fact, the Establishment Clause of the First Amendment

"Congress shall make no law respecting an Establishment of religion..."

was ratified in order to protect state established churches.  At the time of the ratification, many states had official churches.  The Establishment clause was ratified in large part to prevent federal interference with local government-sponsored religious activity-- to protect local governments' sponsorship of religious activities from federal censorship. Established state churches only disappeared with the 14th Amendment, which applied the Bill of Rights to the states through the doctrine of incorporation.

Jefferson's letter was forgotten for a half century, until it was reprinted in 1853. His phrase "wall of separation between church and state" first appeared in Supreme Court jurisprudence in 1878 in the Reynolds v. United States decision. In that ruling (about a bigamy conviction of a Mormon), the Court found that invocation of "religious duty" was not a defense to a criminal indictment.

The "wall of separation" phrase languished in jurisprudence for another 70 years, but it did not languish in American culture.

In the early 20th century, anti-Catholic bigots promoted the doctrine of "a wall of separation between church and state" to extinguish Catholic schools and other institutions. The Ku Klux Klan spearheaded the "wall of separation" doctrine. From the Seattle Civil Rights and Labor History Project:

During the Ku Klux Klan’s revival during the 1920s, the organization formed a strong presence in the Pacific Northwest. In Washington, the majority of the Klan’s work was devoted to passing an anti-Catholic school initiative and attempting to spread their particular brand of white, Protestant supremacy. Yet while Oregon passed an anti-Catholic school bill in 1922, heavily backed by the Oregon Klan, Washington voters rejected a similar measure–and the influence of the Washington Klan–two years later. The Ku Klux Klan that surfaced in the 1920s formed the second wave of Klan activity in the United States. Unlike the first emergence of the Ku Klux Klan, formed in the South in 1868 and mainly concerned with keeping black people from exercising their new freedoms, the second wave of the Ku Klux Klan focused their efforts on a wider range of issues. This new wave portrayed themselves as a race-protecting group that “espoused a virulent form of racism, anti-Semitism, anti-Catholicism, and anti-immigrant sentiment. . . .”

. . . The Oregon School Bill aimed to close private Catholic schools in Oregon and have the children sent to the public school system. Since public schools taught state-mandated curricula, the Klan saw this measure as a way to “Americanize” Catholic children and limit the amount of “non-Protestant” instruction they received. Oregonians who supported the Compulsory Education Bill, including the Oregon Klan, made the argument that private and parochial schools were often controlled by non-American organizations that emphasized foreign ideologies over traditional American values.

So how does this invocation of "wall of separation between church and state" become Supreme Court doctrine, extending from a casual phrase by Thomas Jefferson in a letter to an obscure comment in an 1878 Supreme Court ruling on bigamy to a pervasive doctrine of anti-religious censorship in the public square in the 21st century?

Here's how:

On August 11, 1921 Fr. James Coyle, a Roman Catholic priest in Birmingham, Alabama, was shot to death on the porch of his rectory by E.R. Stephensen, a local Ku Klux Klansman. Fr. Coyle had just performed a wedding between Stephensen's daughter and her Puerto Rican husband.

Stephenson was defended by five lawyers, four of whom were Klan members. The fifth lawyer who volunteered to defend Stephenson was Hugo Black, a prominent local attorney. Despite the fact that the Catholic priest was unarmed and the murder was committed in public in front of witnesses, Stephensen was acquitted of murder based on "self-defense"and "temporary insanity".

Defense attorney Black joined the Ku Klux Klan after the trial. In the Klan, Black was a Kladd of the Klavern, which was an initiator of new Klansmen.


From The Volokh Conspiracy:

... Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.”... Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed... 

Several years later, Black ran for U.S. Senate from Alabama. He barnstormed the state, campaigning on a virulent anti-Catholic platform and demanding "a wall of separation between church and state". His strongest support came from his Klan base, and he gave many anti-Catholic "wall of separation" speeches to Klan meetings across Alabama.

Black, a Democrat, won the Alabama senate seat in 1926, defeating his Republican opponent with 80.9 % of the vote. He easily won re-election in 1932, with 86.3 % of the vote. He was a staunch defender of FDR's New Deal and of Roosevelt's court-packing plan.

In 1937 Roosevelt appointed Black to the Supreme Court. Despite controversy about his Klan history, Black was easily confirmed. He quickly acquired a reputation for idiosyncratic interpretation of the Constitution.

In 1947, Justice Hugo Black wrote the majority opinion in Everson v. Board of Education, the landmark Establishment Clause Supreme Court decision that barred use of tax revenues to transport children to religious (Catholic) schools.

Justice Black 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. 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 law was intended to erect 'a wall of separation between Church and State.'" 330 U.S. 1, 15-16 [emphasis mine]

In 1962, Justice Hugo Black wrote the majority opinion in Engel v. Vitale, the landmark Establishment Clause Supreme Court decision that outlawed prayer in public schools.

Justice Black wrote:

The petitioners contend among other things that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. [emphasis mine]

Justice Hugo Black began his political career in the wake of his successful defense of a Klansman who murdered a Catholic priest. The modern application of the non-Constitutional doctrine "a wall of separation between church and state" derives from Black, a former Kladd of the Klavern of the Alabama Ku Klux Klan, who used his Klan base to secure a Senate seat and ultimately an appointment on the Supreme Court.

The phrase "a wall of separation between church and state" played little role in jurisprudence until the mid-20th century. The doctrine has long played a large cultural role, preserved by pervasive anti-Catholic bigotry through organizations such as the Ku Klux Klan, and became a 'Constitutional principle' through the jurisprudence of an anti-Catholic bigot. It is used today to suppress prayer and religious expression in all public schools in the United States.

Why is it that discussions of the "separation of church and state" don't generally include the cultural and political history of the "doctrine"? Why is the central role that "separation" played in the political and judicial rise of Justice Black-- the father of modern Establishment Clause jurisprudence-- never seems to show up in New York Times Op-Ed columns or NPR's  "All Things Considered"? Ever see a press release by Americans United for Separation of Church and State note the fact that "an eternal separation of church and state" was a part of the KKK’s jurisprudential agenda and the Klansmen's Creed, and that one of those Klansmen jurists wrote the Supreme Court opinions establishing "separation of church and state" as the law under which we live?

Commenting on the Black's "wall of separation" doctrine, twogaybullies express (approvingly) the censors' view quite nicely:

Black was a former member of the Knights of the Ku Klux Klan, and a rabid anti-Catholic. He hated Catholics almost as much as I do. He once worked as defense counsel to a KKK member accused of murdering a Catholic priest. The KKK member was acquitted, thank goodness!

The term “separation of church and state” first became case law when Justice Black cited it in Everson v. Board of Education (1947). The case involved a school district that used its buses to help transport children to Catholic schools. Keep in mind that Black was a Catholic-hater of the first degree, although that certainly had no bearing on his judgment at all. Black interpreted the constitution with an eye toward Thomas Jefferson’s “Letter to the Danbury Baptists”. He plucked the phrase “separation of church and state” from Jefferson’s letter, albeit wildly out of context. Which is really odd, because Thomas Jefferson was not the author of the constitution. In fact, he had nothing to do with its text as he was serving as the US Ambassador to France at the time. But I don’t care. I like Black’s conclusion and I don’t care how he came to it.

For years, the doctrine established in Everson v. Board of Education has been used as a weapon against people of faith, and that’s great. That’s what it’s supposed to [be] used for...

Do you understand?