Political Theology as Analytical Framework

The language of political theology is particularly suited to analysis of Black's religious thought and Establishment Clause jurisprudence. While the definition of the field is frequently contested, political theology is generally concerned with understanding how theological commitments shape visions of political life. Joshua Hawley has recently called for a renewal of political theology in legal analysis.Footnote ¹³ Daniel Conkle and John Witte, Jr. and Joel Nichols have fruitfully analyzed the theological underpinnings of establishment in the early republic in order to understand the religion clauses, and Richard Garnett has taken a similar approach in regard to the late nineteenth-century Blaine Amendments.Footnote ¹⁴ The field's recent popularity arguably originated in a rediscovery of German theorist Carl Schmitt's 1922 Political Theology: Four Chapters on the Concept of Sovereignty.Footnote ¹⁵ Schmitt's aphorism, “All significant concepts of the modern theory of the state are secularized theological concepts,” has inspired scholarship examining the religious roots of contemporary democracy.Footnote ¹⁶ Some, like Mark Lilla, describe political theology as the project of those who seek to model the state on religious principles. Paul Kahn's approach, like Schmitt's, argues that theology is not imposed by partisans onto political life, but rather that “the state is not the secular arrangement it purports to be.”Footnote ¹⁷ Others take the heart of the field to be theological assessments of the justice or injustice of political arrangements. Still others may include any overlap of religion and political life in its domain.Footnote ¹⁸

Here I take Kahn's decidedly descriptive approach to argue, contra Lilla, that precisely in the purported attempt to insulate political life from religious factionalism, Hugo Black succeeded in enshrining a particular normative notion of religion into constitutional law. In examining his background and attitudes, “political theology” most accurately describes Black's religious views. His lone legal monograph, A Constitutional Faith, mixed religious and legal language to define his deepest commitments.Footnote ¹⁹ On several occasions, he sacralized circuit court meetings with scripture readings. One biographer remarked that Black saw democracy as “Protestantism in its secular form.”Footnote ²⁰ Finally, as I argue, the Unitarianism surrounding Black constituted a particularly political theology—one that might be described as inverting Lilla's conception. For the ministers of All Souls, their congregants, and Justice Black, faith was comprised primarily of shared political principles and a normative vision of religion as subsumed (in Rousseauian fashion) under the modern liberal state.

Previous Portrayals of Hugo Black's Religious Thought

Biographers have consistently connected Black's religious upbringing and views to his legal opinions. Virginia Van der Veer Hamilton and Gerald Dunne have noted the anti-Catholicism pervasive in Black's Alabama upbringing, his 1926 Senate campaign speeches, and his comments to family members. For the Justice, the Catholic hierarchy represented opposition to the Enlightenment freethinkers he admired.Footnote ²¹ Others, like Roger Newman and Howard Ball, have highlighted Black's conviction that religion should be an intensely private matter, free from external influence. His dissent in Zorach v. Clauson (1952) insisted that schools be completely separate from religious bodies.Footnote ²² His assertion in Engel that “religion is too personal, too sacred, too holy” to permit civil interference was affirmed by an extemporaneous comment at the decision reading, in which the Justice declared, “[t]he prayer of each man from his soul must be his and his alone.”Footnote ²³

Steve Suits makes perhaps the clearest connections between Black's theology and his politics. In his childhood, Black witnessed the Harlan, Alabama Primitive Baptist Church attempt to publicly discipline both his father and his uncle for alcoholism. These episodes, as well as his father-in-law's exile from the Presbyterian hierarchy for heterodox opinions, led Black to fear the coercive power of organized religion. In early adulthood, he looked to historical Baptist theology as the origin of American civil liberties and saw religion's highest purpose as forming citizens.Footnote ²⁴ In a similar vein, Newman notes that Black saw explicit connections between democratic government and Protestant principles and was quick to connect the Establishment Clause to historical narratives of religious persecution. As Black told his nephew, “All of my religious decisions are influenced by what happened to our Toland ancestors in Ireland.”Footnote ²⁵ His aversion to organized religion and a comment recorded by his son, Hugo Jr.—“I cannot believe. But I can't not believe either”—have led biographers to characterize the Justice as agnostic and uninterested in theology.Footnote ²⁶ I argue, to the contrary, that Black's reading patterns, conversations, and correspondence demonstrate a keen interest in theology, albeit a theology that dogmatically rejected anything resembling traditional dogma.

Legal scholars, especially those critical of modern religion clause jurisprudence, have argued that Black's Establishment Clause decisions ironically constitute the establishment of his own religious views. Barbara Perry has argued, “Black's personal religious heritage and attitudes may well have served as the most formative components of his nearly unanimous record in religious establishment cases.”Footnote ²⁷ In her account, Black's religious thought was marked primarily by its similarity to Thomas Jefferson's. In practice, this meant that Everson and Engel defined religion as an eminently private practice, free from both governmental and ecclesiastical coercion.Footnote ²⁸

While Perry contends that Black abandoned many of the tenets of his Baptist upbringing, Jay Sekulow argues that the Justice enshrined Baptist notions of separationism into law. In a 1970 interview with a graduate student, Black commented that the Baptist faith of his childhood was the most important influence in his legal career. The traditional Baptist position on church-state relations is reflected not only in Jefferson's famous 1802 letter to the Danbury Baptists, from which Black drew his “wall of separation” metaphor, but in Black's brief involvement with the Southern Baptist Convention's Committee on Public Relations. Upon his nomination to the Supreme Court in 1937, Black had to leave the commission just before it released a statement condoning strict separationism. For Sekulow, Black's separationist position thus constitutes an establishment of Baptist theology. Sekulow also helpfully points to the influence of A. Powell Davies, pastor at All Souls Unitarian Church in Washington, DC. He concludes that the combination of Black's Baptist and Unitarian leanings led the justice to introduce strict separation, the “secular purpose” doctrine, and the possibility of government neutrality into jurisprudence.Footnote ²⁹ I offer somewhat related arguments here but contend that instead of opening the possibility of “neutrality” in state action, Black's thought is best read as a positive theology of the state and civic life.

Phillip Hamburger has treated Black in a similar way, although he sees Justice Black's thought as only one expression of a broader establishment of liberal Protestantism.Footnote ³⁰ Similarly, we might view mid-twentieth-century jurisprudence as an extension of the nineteenth-century nondenominational Protestant “moral establishment” described by David Sehat.Footnote ³¹ My argument here fits well within existing “establishment thesis” scholarship but contends that Black enshrined a more distinct and personal theology into law. While the Justice was certainly influenced by particular aspects of his Baptist heritage, he melded this with the Unitarianism he discovered in mid-century Washington. The Unitarian tradition offered a more powerful, prescriptive understanding of the end of political life and therefore was more congenial and influential to his own “constitutional faith.”

In adopting a species of this argument, I am aware that it risks a certain facetiousness. As Justice O'Conner warned in Elk Grove v. Newdow (2004), the Establishment Clause should not be a tool of the “heckler's veto.”Footnote ³² Here my intention is not to heckle the law itself. Rather, I am convinced that understanding the theological roots of Establishment Clause jurisprudence might help us better navigate a legal landscape which scholars have variously termed “impossible” and a “tragedy.”Footnote ³³

While his preeminent biographer, Roger Newman, has portrayed the Justice as ambivalent or skeptical about religious matters, a good deal of evidence suggests otherwise. Consistent with his attitude in other areas of life—politics, romance, finance, philosophy, and law—Hugo Black held firm religious opinions informed by wide reading.Footnote ³⁴ He declared his favorite books to be the Bible and John Bunyan's Pilgrim's Progress.Footnote ³⁵ His personal library was filled with popular titles on religion, and he recommended works to religious seekers. He engaged in principled theological arguments, whether with angry correspondents or strangers on the street. We might then take Black's religious ideas as constituting a coherent—albeit uniquely personal—theology, the contours of which are revealed through his upbringing, reading, relationships, correspondence, and conversations.

Alabama Life: Early Church Membership and the Klan

Schmitt's assertion that theological ideas are eventually transformed into secular political principles found expression in Black's life. His earliest religious opinions would later animate his interpretation of constitutional principles. As Steve Suits has noted, his horror at the public shaming of his father and uncle at the hands of the Primitive Baptist Church led young Hugo to distrust religious authority.Footnote ³⁶ However, this did not result in an antipathy toward religion, but rather a distinct pattern of religious membership. As a child, Black attended both Methodist and Baptist Sunday Schools.Footnote ³⁷ Upon his arrival in Ashland, Alabama, in 1906, the young lawyer sought out the local Baptist minister to discuss his potential membership:

Upon his move to Birmingham one year later, Black established a similar arrangement with Birmingham First Baptist pastor Alfred Dickinson. He soon began to teach the “Baraca Sunday School Class” for young men. When Hugo Jr. later questioned how his father reconciled selective belief with a teaching position, Black replied, “All I did was teach the Bible in Alabama; those parts I selected, I taught. I didn't have to go listen to the preacher.”Footnote ³⁹ When his first wife Josephine, a Presbyterian, felt out of place at the church, Black simply skipped Sunday services and continued leading the class.Footnote ⁴⁰ Thus while his pattern of membership was rather unorthodox and radically individualistic, it did not prevent Black from leadership in the church. The pattern would become something of an ideal of religious involvement when Black moved to Washington, DC. His sons attended a Methodist Sunday School, while he became loosely involved with All Souls Unitarian Church.Footnote ⁴¹

Much has been made of Black's involvement in the Ku Klux Klan during his Alabama years. He joined the Klan in Birmingham in 1923, and his tour of Alabama Klaverns was crucial to his victory in the 1926 senate race.Footnote ⁴² When the Pittsburg Post-Gazette uncovered details of his membership soon after his appointment to the Supreme Court in 1937, Black took to the radio to excuse his involvement as born of political expediency. Many biographers turn a somewhat sympathetic ear to this narrative. Black's history of legal advocacy for African Americans in Birmingham and the fact that in 1923 the Klan claimed 50,000 Alabaman members give some credence to his explanation.Footnote ⁴³

Yet there is good reason to believe that as regards religion, Black adhered to Klan principles. After his radio address, a Birmingham friend alleged that Black had openly expressed his sympathy with the Klan's values during a golfing outing years after his Senate victory.Footnote ⁴⁴ Yet another suggested that Hugo should openly admit the appeal of an organization that seemed “a tremendous power for good … a balance wheel against all the foreign ‘isms’ that afflict the United States.”Footnote ⁴⁵ Black's audience would have recognized both this suggestion and Black's comment that the Post-Gazzette story was “a planned and concerted campaign … which fans the flames of prejudice” in part as a caution against the rising political power of American Catholics.Footnote ⁴⁶ It seems the primary appeal of Klan membership for Black was the organization's strident anti-Catholicism. As his son Hugo Jr. remembered, “The Ku Klux Klan and Daddy, so far as I could tell, only had one thing in common. He suspected the Catholic Church.”Footnote ⁴⁷

While Black's record as a Birmingham lawyer included legal work in defense of African Americans and friendships with prominent Jews, it also gave evidence of anti-Catholic prejudice. In 1921, Black defended a Methodist minister, the Reverend Edwin Stephenson, who was charged with murdering a Catholic priest, Father James Coyle. Stephenson's daughter Ruth had married Pedro Gussman—a Puerto Rican and a Catholic—without her father's permission. Father Coyle had officiated at the private ceremony. On the evening of his daughter's marriage, Reverend Stephenson walked to Saint Paul's Church and found Father Coyle sitting on the rectory porch. A brief struggle ensued in which Stephenson shot and killed the priest.Footnote ⁴⁸ Black's successful defense, which was funded by the Alabama Klan, relied not only on racial animus but on fears of Catholic influence. His closing remarks aimed to justify Stephenson's outrage by appealing to tropes of Catholic prelates as authoritative manipulators: “Because a man becomes a priest does not mean that he is divine. He has no more right to protection than a Protestant minister. Who believes Ruth Stephenson has not been proselytized? A child of a Methodist does not suddenly depart from her religion unless someone has planted in her mind the seeds of influence.”Footnote ⁴⁹ As if to ensure his meaning was clear, Black recited selections from an official Klan prayer to call the jury to the solemnness of their duty.Footnote ⁵⁰

The Klan's specifically religious dimensions are often understated in historical memory. Yet the first grand wizard of the Revised Klan identified “spiritual independence” as one of three pillars of Klankraft, which “found its chief expression in Protestantism.”Footnote ⁵¹ Official liturgies for both men and women members included a copper penny placed upon an altar to symbolize Christ's admonition to “repay to Caesar what belongs to Caesar” (Matthew 22:21). The leader, or “Excellent Commander,” would inform the congregation, “we are especially reminded of this lesson—that Church and State ought forever to be kept separate.”Footnote ⁵² Were Black to have participated in these rituals, he would understand government insulation from religious organizations as a theological principle ordained by Christ.

Black's theo-political persuasions were reinforced not only by the Klan, but by a host of other fraternal organizations. As a young man, he submitted an application to the Birmingham Masons just before his twenty-first birthday so that it might be processed as soon as he was eligible.Footnote ⁵³ He renewed his Masonic membership until at least 1965, and received correspondence from the Knights of Pythias, the Cyrene Commandery, the Knights of Khorassan, and the Shriners, all of whom counted Black as a member.Footnote ⁵⁴ Many of these organizations shared not only a vague nativism but substantive ideas about the proper nature of religion. The Masons in particular viewed religion in Enlightenment rationalist terms and saw natural religion as essential for the health of the nation. An undated letter to Black from a fellow Shriner was signed “Yours in the Faith.”Footnote ⁵⁵ Whether this faith was essentially a committed opposition to the Catholic Church—as the Mason-sponsored Oregon law which spurred the 1925 Pierce v. Society of Sisters decision indicates—or more akin to the Jeffersonian notion of natural religion, Black's membership in these organizations indicates a particular normative view about religious life, one which influenced his jurisprudence.Footnote ⁵⁶ As he told a friend after mailing him his Engel opinion, “I think the constitutional principles there relied upon are not so far away from the Scottish Rite lectures in which you have participated so many times.”Footnote ⁵⁷

Black's Bookshelf

Popular biographer and historian David McCullough has remarked, “We're all what we read to a very considerable degree.”Footnote ⁵⁸ As a child, Black was a prodigious reader and admired his parents’ modest library. His classical education at the Ashland Academy under the direction of headmaster Hiram Evans (whose son would become a future Klan Grand Wizard) inspired a lifelong love for Greek and Roman philosophy and history.Footnote ⁵⁹ Upon his election to the Senate in 1926, Black undertook a structured program of personal reading, soon guided by William Durant's 1929 article “One Hundred Best Books.”Footnote ⁶⁰ Throughout his career in Washington, he kept a rather active account at the Library of Congress and corresponded with several favorite booksellers.Footnote ⁶¹ A list of the nearly one thousand volumes in the Justice's chambers and home study upon his death has been compiled by Daniel Meador. While Black's marginalia indicate that his library did not represent a mere catalogue of his intellectual sympathies, much can be gleaned from an examination of his reading habits and favored texts. Indeed, his son remarked that he only read what seemed relevant to his work on the bench.Footnote ⁶²

Among the religious titles on Black's shelves, many seem to have reflected his preoccupation with Rome. In particular, biographers have noted his appreciation for Paul Blanshard's anti-Catholic works. Blanshard made his career arguing that rising Catholic political influence, especially among Irish-Americans, risked introducing anti-democratic principles into American government.Footnote ⁶³ Other titles in Black's library, such as Kahlil Gibran's The Prophet, William Wilfred Walter's The Unknown God, and Joseph Gaer's The Wisdom of the Living Religions reflected an interest in Eastern religion shared by Josephine Black.Footnote ⁶⁴

Still others represented some of Black's most enduring religious convictions. Bunyan's Pilgrim's Progress, a fixture in Hugo's youth, remained close throughout his life. While writing his Engel decision, he kept a copy on his desk for inspiration.Footnote ⁶⁵ Penned during Bunyan's twelve-year imprisonment at the hands of the Anglican authorities, Pilgrim's Progress reflected its author's distaste for powerful ecclesiastical institutions. Accordingly, many scholars have described the epic as an early manifestation of modern radical individualism. For example, Robert Bellah has seen the work as a prototype of the particularly Puritan and American narrative of “leaving home” to “find oneself.”Footnote ⁶⁶ For seventeenth-century Anglicans or Catholics, a young person grew in faith because of her membership in the church. For the Puritans, Baptists, and other dissenters, individual discovery of God was a prior condition for church membership.

“Christian,” the protagonist of the first part of Pilgrim's Progress, has long been considered the archetype of this personal journey. While he is aided by a few close friends, most of the characters he encounters attempt to turn him from his path towards the Celestial City.Footnote ⁶⁷ Christian meets “Formalist” and “Hypocrisy,” who claim that their thousand-year-old tradition is a sufficient substitute for a proper personal pilgrimage. The pilgrims pass by the giants “Pope” and “Pagan,” finding the first powerless and the second dead. When they reach the “Vanity Fair,” marked by the sale of “the Ware of Rome,” Christian's friend “Faithful” is tried as a heretic.Footnote ⁶⁸ For Bunyan, as well as for Black, dogmatism and traditional ecclesial institutions were not simply oppressive, they were opposed to true religion.

Black's correspondence reveals another of his political and theological influences—the eighteenth-century Unitarian minister, scientist, and political exile Joseph Priestley. The Justice's admiration for Priestley came forth in a series of letters exchanged with an Iowan of the same name. The twentieth-century Dr. Priestley wrote in 1961 to inform Black of the threat posed by communist sympathies among American voters. Similar letters were common and usually left unanswered, but Black responded by recommending several biographies and the writings of the historical Priestley, who “came to this country from England seeking political and religious freedom.” A curt response was received, recommending that Black not bother replying and instead “start working for the U.S.” The Justice persisted, encouraging the Iowa doctor to read Priestley's works and continue the correspondence. The Iowan wrote twice again in the next decade, but only to condemn the Court's decisions.Footnote ⁶⁹

While cursory biographies might have hailed Priestley as simply a steadfast religious dissenter, his theological and political writings called for more than mere disestablishment of state churches. To be sure, he made cogent arguments for religious freedom. Not only do human rights demand protections of conscience, but churches often flourish under disestablishment, according to Priestley.Footnote ⁷⁰ However, his idea of religious freedom meant freedom from many things others might consider essentially religious. Foremost among the things to be jettisoned was any suspected accretion or institution formed by “man.” Priestley's History of the Corruptions of Christianity characterized most of traditional Christianity—the divinity of Christ, theologies of Atonement, sacramental life, liturgy, church discipline—as arbitrary inventions accrued over time. This bifurcation of divine and human realms, which in others may have led to doubts about human reason, turned towards radical individualism in Priestley. “The voice of conscience is, in all cases, as the voice of God to every man” meant that the teachings of religious authorities or the doctrines of religious communities were not only opposed to reason but constituted a kind of “bigotry.”Footnote ⁷¹

In place of authority or communal teaching, Priestley affirmed a veritable faith in unfettered “reason” to “purify” religion. He frequently denied any difference between religious and scientific knowledge, confident that pure reason “would be the means, under God, of extirpating all error and prejudice, and of putting an end to all undue and usurped authority in the business of religion.”Footnote ⁷² If religious thinking was left unencumbered by doctrine and open to continuous innovation, humankind would rapidly shed the impurities of past accretions, and “whatever is true and right will prevail.”Footnote ⁷³ The result of Priestley's simultaneous distrust of “man” and exaltation of individual conscience to “the voice of God” was a deep suspicion of catechetical instruction. Catechesis served to “obstruct freedom of inquiry in matters of religion, by laying an undue bias upon the mind.”Footnote ⁷⁴

If theological doctrines professed by ecclesial institutions were obstacles to “pure” religion, most accounts of the supernatural, under Priestley's schema, became irreligious superstition. Pure religion was then simply a matter of moral prescriptions. Indeed, this reduction to moralism enabled the Universalist contention that theological differences had no bearing on salvation.Footnote ⁷⁵ As far as the civil authorities were concerned, religious doctrines were only useful or objectionable insofar as they encouraged morality or engendered unrest, a theme that would appear in Black's thought.Footnote ⁷⁶

It is crucial to note that Priestley's reasons for disestablishment were almost entirely theological. He frequently appealed to scripture to argue that Christianity is a radically apolitical religion. “Then repay to Caesar what belongs to Caesar,” (Matthew 22:21) “call no one on earth your father” (Matthew 23:9), and various condemnations of the Pharisees served to show that true faith concerns only “spiritual” and not “temporal” matters.Footnote ⁷⁷ Perhaps contradictorily, Priestley's Unitarianism often drew political implications from traditionally soteriological doctrines. Paul's exhortation “For freedom Christ set us free; so stand firm and do not submit again to the yoke of slavery” (Galatians 5:1) transformed under Priestley's gaze from a statement regarding the place of Mosaic Law in salvation to an affirmation of disestablishment as divinely ordained.Footnote ⁷⁸

We may allow that the theological flavor of Priestley's arguments is tailored to his audience. Appeals to scripture might be convincing for the Anglican authorities in England or skeptical Congregationalists in America. If Priestley's best arguments were somehow grounded in secular principles of political theory, we might expect to see his twentieth-century readers drop this scriptural veneer when making appeals in the context of twentieth-century pluralism. But this was not the case for Hugo Black. When making a gift of Priestley's Northumberland Letters to Reverend A. Powell Davies of All Souls, the Justice remarked that Davies’ message to both his “church and [his] country” were reminiscent of Priestley's.Footnote ⁷⁹ For Priestley, Davies, and Black, the contents of politics and theology were mutually informing.

The Justice's “Circle of Friends” and Lived Religion

Black's peculiar union of political theory and theology is best illuminated through his conversations, friendships, and religious practice during his time on the Court. He was undoubtedly a culturally religious man. He sang Baptist hymns around the dinner table and during country drives with his second wife. Of course, he was given to mocking the same hymns by inventing alternative lyrics.Footnote ⁸⁰ His irreverence had limits however, and he voiced concern over the decline of traditional religion in conversation with his eldest son. For Black, organized religious communities ordered the lives of those who lacked the moral rectitude or intelligence to act virtuously. As he told Hugo Jr., “This stuff's been a great foundation for doing right. Some people got to be scared into doing the right things, some others got to be given blind hope you gonna find it better somewhere else by doing right on this earth. You pull out faith in God and these incentives to do good disappear.”Footnote ⁸¹ The “Golden Rule” and Paul's discourse on love in 1 Corinthians 13 formed the backbone of his spiritual ideal. In his son's words, “Ethical conduct, his real religion, was of paramount importance to him.”Footnote ⁸²

While he rejected the Primitive Baptist Church of his youth, Black located the foundations of American religious freedom in the Baptist tradition. He was undoubtedly influenced by Alfred James Dickinson, the pastor of Birmingham's First Baptist Church. Dickinson was educated at Harvard and the University of Chicago, subscribed to the then-radical historical-critical school of Biblical theology, and took pains to emphasize the social implications of faith over doctrinal claims. While stumping for Populist politician Sidney Catts in 1916, Dickinson advocated more than the strict separationism historically associated with American Baptists.Footnote ⁸³ He suggested that those who held religious allegiances in higher esteem than their American citizenship should be denied the vote.Footnote ⁸⁴

Dickinson, Bunyan, and Thomas Jefferson's Danbury correspondents may have been on the Justice's mind when he agreed to receive a delegation of Southern Baptists in 1964. The Christian Citizenship Seminar of the South Baptist Convention drew over one hundred ministers to Washington, DC, and Black agreed to a private meeting with the group. On his insistence, the proceedings of the meeting—an informal presentation on the role of the judiciary—was not publicized, but his subsequent correspondence with attendees gives us an idea of Black's address. Several were impressed with Black's knowledge of Baptist history and expressed a newfound admiration for the Court. The Engel and Schempp decisions of the prior two years had rankled many Protestants, including some Baptists. For many, the decisions threw doubt on the Court's legitimacy.Footnote ⁸⁵ It seems that Black succeeded in convincing his visitors that the form of separation expressed in these decisions was the particular contribution of early American Baptists. As one Tennessee minister put it, the religion clauses were an example of “Baptist life as it is expressed in government.”Footnote ⁸⁶ Black exhorted his listeners to continue to champion their “high heritage of freedom and justice” and expressed his satisfaction that “the modern Baptists have not abandoned the old ideas of freedom which were their's [sic] from the beginning.”Footnote ⁸⁷ The greatest indication of Black's veritable political theology in this case was a newspaper report published contrary to the Justice's request. The Washington, DC, Capital Baptist reported, “Justice Black talked a great deal about his early life and the influence of the Baptist church in which he grew up. Several times he recalled how he received his concepts of democracy and freedom from the church.”Footnote ⁸⁸

On one hand, Black's affirmation of the Baptist roots of American religious freedom is historically undeniable. Baptists were instrumental in the movement for disestablishment in the state of Virginia, and prominent ministers like John Leland and Isaac Backus exchanged ideas with Madison and Jefferson.Footnote ⁸⁹ On the other hand, Black may have meant something slightly different when he professed, “One of the reasons I have liked that church has been that throughout its entire existence, the predominating opinion has been in favor of complete religious liberty.”Footnote ⁹⁰ By complete religious liberty, Black may have been indicating what Rhode Island founder Roger Williams termed “soul liberty.” Taken up into modern Baptist parlance as “soul competency” by E. Y. Mullins, the concept asserts that the individual must relate to the divine unencumbered by any civil or ecclesial authority.Footnote ⁹¹ Read in this way, Black's jurisprudence might aim to procure not only civil liberty for Americans, but true spiritual liberty as well.

While Black admired his historical coreligionists, his religious involvement centered on All Souls Unitarian Church during his life in Washington. He counted pastor A. Powell Davies and his successor Duncan Howlett as close friends. Davies performed the funeral service for Black's first wife, Josephine, and officiated his marriage to his second, Elizabeth. The Blacks often hosted both the Davies and the Howletts in their home and sometimes attended services at All Souls. In her diaries, Elizabeth wrote, “Hugo says he's going to hold on to Dr. Howlett because he's his closest connection to God.”Footnote ⁹² His closeness to Davies was no less profound. In a letter of condolence to Mrs. Muriel Davies upon the pastor's passing, Black wrote, “I feel that a great light has been put out, one that helped many people see truth with clearer vision. My admiration for your husband was very great. This was why I turned to him for help in time of sorrow and in time of joy.”Footnote ⁹³ The Justice donated to the church on several occasions, agreed to at least one speaking engagement (which was contrary to his habit), and served as part of the church's National Advisory Group. His relationship to All Souls was best described by a trustee, who wrote after Davies’ passing, “Although you have not been a member or regular attendant, we have long felt that your attachment for what Dr. Davies stood for made you a part of the circle of friends of this Church.”Footnote ⁹⁴

If Black's affection for Davies and Howlett was grounded in shared convictions, it is worthwhile to examine the pastors’ ideas, especially any that emerged in exchanges with the Justice. While Davies professed notions of strict separationism and cited Black's McCollum decision with approval, he did not conceive of religion as a mere private affair. Justice William Douglas, another Davies admirer, recalled this statement from the pulpit—“Religion that is not realistic, not practical, that does not enter the arena of public affairs—and enter it with importunate energy and relentless purpose—is not worth bothering with at all.”Footnote ⁹⁵ For Davies, social influence was the primary characteristic of true religion. He was suspicious of any supernatural claims because they might both distract the faithful from social action and discourage the rightly skeptical from joining the fold.Footnote ⁹⁶ In his view, true religion was summed up in the prophet Micah's words, “Do justice, love mercy, and walk humbly with God” (Micah 6:8). As regards “walking humbly with God,” Davies contended that a formal theology or belief in the divine was not what was necessary for true religion. Rather, a “personal religion” expressed in any life-giving or selfless experience was all that was required.Footnote ⁹⁷

The doctrinal and ecclesial trappings of “formal” religion were not simply unnecessary for Davies, they were definite obstacles. “Creeds have no place in the world,” he wrote upon his conversion from Methodism to Unitarianism, “because they transgress the free domain of the mind.”Footnote ⁹⁸ Doctrinal claims not only barred dissenters from membership, but they led to violence. In Davies’ mind, traditional religion served to protect man from the frightening responsibilities of following his own conscience alone. Christ himself was crucified because he led his followers to embrace emancipation from traditional religion, thus destroying “their little false securities of body and soul.”Footnote ⁹⁹ True religion resided in “the Free and Universal Church” whose only tenets were freedom of conscience and universal brotherhood.Footnote ¹⁰⁰ Davies imagined “a universal common faith, a faith which might reform and federate the great religions.”Footnote ¹⁰¹ Exclusivist claims—especially on the part of Christianity—were the major obstacles to his vision. Thus, he could declare with approval at Josephine Black's funeral that she “had outgrown most forms of religion.”Footnote ¹⁰²

Howlett's low ecclesiology mirrored his predecessor's. He insisted that the marks of the ideal church included the protection of free theological expression for all its members. His 1954 Man against the Church equated political and religious life, mirroring Justice Black's opinions even more closely than Davies' thought. Like the early American Baptists Black admired, Howlett believed that Revelation approached humanity through the individual soul. Thus ecclesial and governmental institutions were of the same type and faced the same central problem—how to preserve organizational unity without impinging on the freedom of individuals. In Howlett's view, “The mechanics by which this is to be achieved in the church will be of the same kind as those in the state. They will involve freedom of speech, opportunity for experimentation, and checks and balances upon power wherever power is lodged.”Footnote ¹⁰³ He rightly wondered whether identical, “democratic” institutional norms would subsume religious bodies under the state. Howlett insisted that the principle of “freedom” and free expression always be reserved for religious bodies, just as it was for individuals. However, “the state and the citizens of the state must be free to criticize—even to denounce—the church when they think it is at fault.”Footnote ¹⁰⁴ What form state denunciation of a church might take was left unclear, but the statement indicates a desire for civil authority to regularly shape the life of religious institutions.

Howlett's somewhat ironic (given his separationist position) loose equivalence between state and church found expression in Black's own writing. The Justice was reluctant to explicitly share his own judicial philosophy and rejected many requests for academic lectures.Footnote ¹⁰⁵ One exception was his 1968 lecture series at Columbia University Law School, published as A Constitutional Faith. As the title suggests, democratic and religious principles coincided for Black. Perhaps it would be more precise to say that constitutional law formed a sort of religion for Black, and the historical narratives he used to justify his judicial philosophy and his religious convictions were often indistinguishable. The most profound profession of Black's “faith” came at the conclusion of his third lecture: “That Constitution is my legal bible; its plan of our government is my plan and its destiny my destiny. I personally deplore even the slightest deviation from its least important commands.”Footnote ¹⁰⁶ His strict textual adherence, combined with what he described as “my historical beliefs” led a Harvard Law dean to label Black's jurisprudence a “fundamentalist theological” approach.Footnote ¹⁰⁷ That the Justice was buried with several 10-cent copies of the Constitution in his breast pocket gives credence to the view that liberal government amounted to a religion for Black, and his comment regarding his “destiny” suggests a bizarrely political eschatology.Footnote ¹⁰⁸

Hugo Black, Political Theologian

Many critics of Black's Establishment Clause jurisprudence have characterized his opinions as “law office history.”Footnote ¹⁰⁹ The historical narrative he constructed in Everson, which placed the origins of the First Amendment in the experience of late-18th-century Virginia and the minds of James Madison and Thomas Jefferson, has been described as a convenient fiction.Footnote ¹¹⁰ Interestingly, the “Virginia understanding,” including Jefferson's famous “wall of separation,” was not Black's invention. Donald Drakeman has masterfully detailed how this narrative was grafted onto constitutional law through the efforts of professional historians. Chief Justice Morrison Waite's 1879 opinion in Reynolds v. U.S. Footnote ¹¹¹ was informed by the scholarship of his former neighbor George Bancroft, and Wiley Rutledge's Everson dissent borrowed from his friend Irving Brant's ongoing research on Madison. Black simply adopted a species of this history in response to Rutledge's circulated dissent. Yet Black's claim relating Virginian church-state debates to the original understanding of the First Amendment contained no citations, and his summary of the meaning of the Establishment Clause appeared in his first draft, long before the historical interlude was added to rebut Rutledge.Footnote ¹¹² It seems Black played the historian in this case out of a desire to justify an a priori conclusion. I argue that Black was drawn to the Virginia narrative and its political implications largely because of his religious opinions. Further, it is his personal political theology, and not his reading of history, which holds the key to understanding Black's jurisprudence.

Of course, the man who saw his father and uncle removed from polite society at the hands of their church would vehemently disagree with any characterization of his political views as “theological.” His efforts to lay out the principles of Establishment Clause jurisprudence during the mid-twentieth century aspired to Lilla's vision of an atheological modernity. But precisely in his attempt to cordon off religion from politics, Black drew on his own religious background and convictions, crafting precedents that implied a normative view of “true religion.” His second wife Elizabeth observed that his Engel decision read like a sermon, and he justified his ruling to at least two correspondents by citing Matthew 6:6—“pray to your Father in secret.”Footnote ¹¹³ He looked to scripture for explanations of political phenomena and models of good government. He explained the 1960s counterculture movement by reading 1 and 2 Samuel, and twice offered his favorite passage from 1 Corinthians 13:4—“Love is patient, love is kind”—to describe the ideals of the law in speeches to federal circuit judges.Footnote ¹¹⁴ In short, the Justice was unable to escape Schmitt's maxim, and readily engaged in political theology.

What follows is an attempt to uncover several main principles of Black's theo-political view and their manifestations in his opinions. Together they form what might be termed “syncretic civic moralism.” In a certain sense, Black's faith was not dissimilar to what Christian Smith has diagnosed as “moralistic therapeutic deism” in twenty-first-century teens.Footnote ¹¹⁵ However, Black's faith lacked the therapeutic element that would be introduced to American religion by Norman Vincent Peale and a younger generation.Footnote ¹¹⁶ In its place, Black's religion took on a certain civic instrumentalism. Once sufficiently atomized, religion could serve as a bulwark to unified civic life, rather than a potential rival with the liberal state for an individual's loyalty, as might be the case in more “thick” or hierarchically structured traditions. The following elements characterize Black's particular political theology.

First, the notion that a normative or pure version of religion was both within the ken of justices and within the object of law crept into several opinions. In Everson, Black appealed to Jefferson's reference to an ideal arrangement of temporal matters patterned after “the plan of the Holy author of our religion.”Footnote ¹¹⁷ In praising Madison's famous Memorial and Remonstrance, the Justice noted, “he eloquently argued that a true religion did not need the support of law.”Footnote ¹¹⁸ In Engel, this normative vision was exemplified by certain religious heroes. John Bunyan played the part of archetypical authority on church-state relations, and Roger Williams was credited as an early proponent of “the doctrine of separation of church and state.” Interestingly, the latter's authority was established by quoting one biographer's comment that Williams was “the truest Christian amongst many who sincerely desired to be Christian.”Footnote ¹¹⁹ When Black continued by citing Williams’ condemnation of Constantinian political arrangements as a betrayal of Christianity, we can only conclude that Black was engaging in immanent criticism. That is, his legal arguments appealed to theological notions of true Christianity.

Secondly, as many legal scholars and biographers have noted, Black saw religion as an ultimately private affair. His Engel decision famously labeled religion “too personal” to be placed in a public institution. Again, his addition while reading the decision—“The prayer of each man from his soul must be his and his alone”—shows Black to have distrusted not only government influence in religion, but any influence at all.Footnote ¹²⁰ His prior dissent in Zorach gives an even clearer picture. Contending that release-time programs enlist compulsory education laws to evangelize those “presumably too unenthusiastic to go [to religious services] unless moved to do so by the pressure of this state machinery,” Black argued that religious participation should be “as free as the choice of those who answered the call to worship moved only by the music of the old Sunday morning church bells.” His conclusion, that “Government should not be allowed, under cover of the soft euphemism of ‘cooperation,’ to steal into the sacred area of religious choice,”Footnote ¹²¹ evinces a vision of religious life as a kind of aesthetic or emotive marketplace. As commentators and sociologists have shown, many Americans have a uniquely voluntarist view of religion.Footnote ¹²² Religion becomes a matter of radical choice, like clothing to be donned or discarded as it suits. Thus, adherents can be accurately described as “consumers,” having limited loyalty to religious traditions. This mode of belief seems to enjoy the support of law under Black's jurisprudence.Footnote ¹²³

Third, not only was religion a private matter, but it could be distinctly separated from other activities, forming its own discrete sphere. The foundational assumption behind the legality of state-aid programs—that religious schools engage in distinguishable “secular” and “religious” education—was first propounded by the Everson majority.Footnote ¹²⁴ But this separability seemed to give way to Black's suspicion of thickly institutional religions in his later career. Dissenting in Board v. Allen (1968), he claimed that “secular” textbooks loaned to religious schools would most certainly be turned to sectarian “propaganda” in the hands of religious teachers.Footnote ¹²⁵

Fourth, like Davies and Howlett, Black's insistence on the private nature of religion meant that communal or ecclesial expressions and influences were necessarily coercive or destructive. His historical narrative in Everson highlighted episodes of religious violence, and this theme seemed to be at the forefront of Black's mind. It dominated his remarks to a 1964 All Souls gathering regarding Engel, and he had long conversations with his son and second wife regarding his fears of Spanish integralism.Footnote ¹²⁶ Roman Catholicism seemed to symbolize this concern, and he underlined a suggestive phrase from his correspondence with a Congregationalist minister—“too bad that Justice Douglas weakened in our struggle against Rome”—following the Zorach decision.Footnote ¹²⁷ His affinity for Paul Blanshard's works suggests that Black embraced the view that the catechetical practice of the Catholic Church served to train “unthinking” devotees, a popular trope in mid-twentieth-century America.Footnote ¹²⁸ In Everson and Allen, Black seemed to suggest that the maintenance of power was the main priority of institutional religions. Seventeenth-century European religion was marked by “established sects determined to maintain their absolute political and religious supremacy,” and mid-twentieth-century America was home to “powerful sectarian religious propagandist … looking toward complete domination and supremacy of their particular brand of religion.”Footnote ¹²⁹

Like Bunyan, Roger Williams, and Joseph Priestly, Black's personal understanding of religious liberty seems to have meant freedom from even the influence of religious authorities, including familial ones. While he did not go as far as his colleague Justice Robert Jackson, who expressed suspicion at any religious instruction for the young,Footnote ¹³⁰ Black did not attempt to pass on his religious understanding to his children. While Josephine Black sent their sons to Methodist Sunday Schools, the Blacks did not regularly attend services. Hugo Jr. noted that he and his brother Sterling “had no religious guidance at home.”Footnote ¹³¹

Indeed, the only lesson Black conveyed to his eldest son regarded his persistent reduction of religion to morality. By limiting “religion” to Paul's exhortation to “love,” Black could conceivably join Justice Douglas in proclaiming Americans a “religious people.”Footnote ¹³² But a religion that merely encouraged virtue in more vicious citizens would serve primarily to bolster civic order. A fifth identifiable theme in Black's vision of religion is its relation to Rousseau's concept of “civil religion”—a set of practices and beliefs which reinforced republican loyalty.Footnote ¹³³ For Black, doctrinal claims were both superfluous and potentially divisive. His rather syncretist views were on display in his bookshelf, where Gibran's The Prophet, Gaer's The Wisdom of the Living Religions, and other works proclaiming (alongside Howlett) the futility of dogmatic differences. Indeed, Black's famous Torcaso footnote, which listed “Ethical Culture” and “Secular Humanism” as veritable religions gives a nod to the non-necessity of doctrine.Footnote ¹³⁴ These convictions were on display among the Birmingham Masons, where a younger Black affirmed a Brother's displeasure at Protestant belief that non-Christian Jews could not enter heaven.Footnote ¹³⁵

Black's opinion was a particular theological stance that many of his congregants at Birmingham First Baptist could reasonably oppose. Paired with his comment to Hugo Jr.—that religion was only necessary to preserve the health of society from immoral citizens—Black's concurrence in West Virginia v. Barnette (1943) takes on a less innocuous meaning than a simple precursor to Employment Division v. Smith (1990).Footnote ¹³⁶ We might read the claim that “Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which … without any general prohibition, merely regulate time, place or manner of religious activity” to indicate that the state's concern for public order not only may override religious practice, but is the proper end of religious life.Footnote ¹³⁷ Black's political theology seems to solidify the tendency, described by Joshua Hawley, for the state to subsume institutional religion under its own purview.Footnote ¹³⁸ As William Cavanaugh has explained, private religious expression is permissible under the liberal regime, but corporate activity is suspect, as it provides competition for citizens’ loyalty under an imagined unitary civic space.Footnote ¹³⁹

I contend that the reduction of religion to morality and the dissolution of theological differences prevalent in Black's circle generated a peculiar relationship between religious and political thought, a phenomenon I might term an “inverted” political theology. Whether we take Mark Lilla's conception of political theology as religious belief impressed on government or other scholars’ notions of religious critique of political arrangements, political theology as it is commonly understood begins in theological principles. In contrast, the Unitarianism of Davies and Howlett and the syncretic civic moralism of Hugo Black seem to take political principles and forge from them a companion theology. Thus Howlett could proclaim that democracy “stands above all sects” as the pure expression of the human spirit,Footnote ¹⁴⁰ and Black could identify his “constitutional faith” as in some ways a successor of the Mosaic Covenant.Footnote ¹⁴¹ In this sense, Black's faith did not merely inscribe theological principles into law, it conscribed religious life into the broader civic project.

Consequences

If the law cannot be separated from religion, even from the personal religion of one legal interpreter, what are the consequences for our ostensibly secular constitutional order? Here I point to two enduring effects of Black's political theology. First, the isolated individual is exalted as the heroic recipient of free exercise protections, especially against the subtly pervasive cultural marks of majority religion, which David Sehat has termed “moral establishment.”Footnote ¹⁴² Thus the original appellant in Torcaso is compared to the first Lord Baltimore and the defendants in Barnette are excused from civic liturgies. But contrary to Sehat's contention that the mid-twentieth-century Court represented a “liberal moment,” a reprieve from previous establishment, analysis of Black's thought suggests that the Court merely endorsed a different conception of religion than the historically dominant mainstream Protestantism.Footnote ¹⁴³

The second consequence of Black's thought is that the legacy of his “wall” winds in such a way as to reframe religious participation in America, making institutions less celebrated and less free. A good example is one of the most recent Establishment Clause cases as of this writing—Trinity Lutheran. The decision hinged on the rather questionable distinction between the religious “use” of an educational facility and its religious “status,” a distinction made possible by the separation of “religious” and “secular” activities within a religious school first propounded in Everson. As Justice Sonia Sotomayor indicated in her dissent, this sphere separation would be rather alien to the self-conception of religious educators. Justice Neil Gorsuch's concurrence similarly called the use-status distinction into question.Footnote ¹⁴⁴ Likewise, the more narrowly decided Zelman v. Simmons-Harris (2002) ruling was predicated on the idea that parent religious preferences could be disaggregated and individualized.Footnote ¹⁴⁵ The fact that the vast majority of Cleveland voucher recipients selected Catholic schools was interpreted as mere happenstance, rather than evidence of a community of religious and cultural dissent potentially in competition with the unitary state.

I do not argue that these decisions were decided wrongly. Rather, the legacy of Black's political theology forces religious institutions and communities to adopt a fictitious posture in order to avoid exclusion from general welfare programs. This argument is generally in accord with recent legal scholarship regarding the institutional or corporate dynamics of First Amendment rights.Footnote ¹⁴⁶ As Richard Garnett has explained, institutions form “the scaffolding around which civil society is constructed, in which personal freedoms are exercised, in which loyalties are formed.”Footnote ¹⁴⁷ As such, they should be given protections similar to those generally granted to individuals.Footnote ¹⁴⁸ Paul Horwitz has similarly argued that First Amendment interpretation has been largely “institutionally agnostic”—that is, legal analysis has traditionally been unconcerned with the context in which speech and free exercise rights are often enjoyed.Footnote ¹⁴⁹

While Horwitz's recommendation that courts employ a degree of deference to the self-conceptions of religious institutions seems helpful,Footnote ¹⁵⁰ I might suggest that at least modern Establishment Clause doctrine—insofar as it relies on Black's original framework—is not agnostic regarding institutions. Rather, it looks suspiciously at strong religious institutions. In this sense, my argument is in accord with Phillip Hamburger's contention that modern Establishment Clause jurisprudence places burdens on “those who do religion in a group.”Footnote ¹⁵¹ In the context of Trinity Lutheran, the burdens are not simply exclusion from social welfare programs, but rather self-effacement as a condition for inclusion.

Yet there is a more cynical possible reading of sphere separation, the use-status distinction, or even the public benefit theory that seems predicated on them. Read in the light of Justice Black's operative political theology, we might see the distinction between religious and secular activities as an aspirational statement regarding the ideal character of a religious school within a liberal state. While this school might be permitted religious activities as a sort of ancillary or ornamental performance, its true value (and reason for state support) would lie in the sort of “secular” education expected of the American common school. By primarily inculcating civic loyalty and the sort of stabilizing social behavior Black held to be the end of religion, the religious school would serve to instill identification with the nation state, which Cavanaugh describes as unavoidably in competition with religious identification. Thus, participation in public benefit programs might serve to subtly erode the school's religious identity and conform it to the ideal expressed by the liberal state.Footnote ¹⁵²

In the end, maintaining the promise of religious freedom seems rather “impossible,” but not for the precise reasons Winnifred Fallers Sullivan suggests. In the case of Black's foundational jurisprudence, it is not official, dogmatic religion which crowds out the individuated, “lived religion” of Sullivan and Robert Orsi.Footnote ¹⁵³ Rather, it is one man's lived religion which has proscribed those more substantial traditions. In this sense, Black's theo-political activity gives more credence to Mark DeGirolami's interpretation of religion clause jurisprudence as a “tragic”—rather than “comic”—endeavor. The dark irony here is that precisely in the attempt to codify a neutral relationship between the law and religious communities, a substantive vision of proper religion inevitably becomes inscribed in law. There seems to be no solution, no way out of this conundrum. The best course of action might be to follow DeGirolami's recommendation for a dispositional and historically informed approach, as opposed to the search for invincibly coherent legal doctrines.Footnote ¹⁵⁴ If Justice Douglas’ demand—that government “have no interest in theology or ritual”Footnote ¹⁵⁵—is ultimately impossible, perhaps one avenue of this requisite historical understanding lies in exploring the theological worlds of the justices themselves.