Thursday, May 10, 2007

Esbeck on the 60th Anniversary of Everson v. Board of Education

Carl H. Esbeck, Univ. of Missouri, has posted a new article, The 60th Anniversary of the Everson Decision and America's Church-State Proposition. It is forthcoming in the Journal of Law and Religion. Here's the abstract:
Sixty years ago the U.S. Supreme Court handed down Everson v. Board of Education of Ewing Township, which for the first time “incorporated” the Establishment Clause through the Fourteenth Amendment and made it binding on state and local governments. The case marks the beginning of the Court's modern era with respect to church-state relations. In Everson, the Justices said that the restraints on federal power represented by the Establishment Clause were the same as the ideas that emerged from the disestablishment struggles in the several states, with special attention to the Virginia experience. The disestablishment effort in the states, which took place from 1776 to 1833, involved nine of the original 13 states, as well as Vermont and Maine. Despite what is commonly believed, the push for disestablishment was not at all influenced by the First Amendment. The reason is simple enough: it was widely understood that the Bill of Rights was not binding on the states, and thus the amendment was of no use against those states that were maintaining an establishment by law. Disestablishment — most importantly the cutting off of tax assessments for the Anglican Church in the South and the Congregational Church in the New England states — was the first step in the implementation of a larger idea that was then called (and spelled) voluntaryism. Voluntaryism is where religion is supported voluntarily by those in the private sector — which is to say, not by the government. While the principle of voluntaryism was increasingly being embraced in the new nation, once disestablishment was completed there remained a gap between the actual practice of voluntaryism and the larger principle when it came to government support of “God language” and other religious symbols and observances agreeable to the dominant Protestants. That is were matters stood, more or less, until the Everson Court in 1947 uncovered a near dormant Establishment Clause, and put it to the task of social clearing in the interest of a government that is to be “neutral” with respect to religion. With the decision in Everson, for the first time in the nation's history the daily, retail-level interactions between church and state were now a matter of federal constitutional law and thereby subject to federal judicial review. We had, so to speak, the nationalization of American socio-religious culture. It was not long before teacher-led prayer in public schools, as well as daily devotions from the King James Bible to begin the classroom day, all agreeable to nondenominational Protestantism, fell under the Court's review. The changes downstream of Everson were painful for many white Protestants who held the mantle of cultural authority. Even now as the logic of voluntaryism continues to be worked out with respect to public displays of the Ten Commandments or the insertion of “under God” in the Pledge of Allegiance, the American civil polity is divided along interesting lines with religious people coming down on one side or the other of these cases depending on their allegiance to the voluntary way. Because voluntaryism takes power away from government so that its officials and its laws simply have “no cognizance” (James Madison's phrase) with respect to certain specifically religious matters, the modern Establishment Clause is about securing religious freedom. However, it is the sort of freedom that is consequential to limiting the power delegated to the government. And, while it is said that voluntaryism means that government is “neutral” as to religion, this is correct if properly understood. In an absolute sense, there is no such thing as a neutral state. Nor is that required. Just as the very text of the First Amendment is pro-freedom of speech and pro-freedom of the press, in like manner the two religion clauses are, each in their own way, pro-religious freedom. The Everson decision took up the Establishment Clause, very much a late bloomer, and in giving the clause meaning drawn from the period of disestablishment in the states the Court set for the federal judiciary an ambitious course these last 60 years, one whose dispute over direction gives no evidence of abating soon.