Zuker, Better a Catholic Than a Communist?

Better a Catholic Than a Communist has just been published by James Zucker, a recent University of Virginia Law School graduate and 5th Circuit law clerk, in the Virginia Law Review. It is nice to see a law school supporting good student work in legal history all the way to publication. Here's the abstract:

In 1948, the Supreme Court in McCollum v. Board of Education declared a “released time” program for religious instruction in the Champaign, Illinois, public schools unconstitutional. Four years later in Zorach v. Clauson, the Court upheld an almost identical program in the New York City public schools. The Court distinguished the two programs on the grounds that the instruction in Champaign occurred in the school building, while the instruction in New York occurred off school grounds.

It is clear this factual distinction was persuasive to at least one justice, yet Justice Douglas inexplicably included in his opinion for the Court another justification for finding the New York plan constitutional. He wrote that Americans “are a religious people whose institutions presuppose a Supreme Being.”

This Note offers an explanation for Justice Douglas’s appeal to Americans as a religious people and contends that the argument was persuasive to the majority, save for Justice Burton. It argues that increasing post-war anti-Catholicism and the Court’s decision in Everson created a climate in 1948 where the country was concerned with a growing Catholic influence in the public schools. Following Everson, McCollum provided the Court with an opportunity to draw a line and establish Mr. Jefferson’s high wall, so much discussed in Everson, between the church and state sponsored education.

Following McCollum, however, the country’s concern shifted to Communism. With this shift, the country’s perception of “released time” public education changed. Instead of viewing these programs as opportunities for Catholic influence in the public schools, the country viewed public religious education as an opportunity to oppose the spread of “Godless Communism,” and opposition to “released time” education was characterized as support for totalitarianism.

This Note posits that Justice Douglas’s appeal to the religious character of America reflected the changed historical context from McCollum to Zorach, namely, that by 1952 it was better to be a Catholic than a Communist.