The World That Everson Created

In 1946, plaintiff Arch Everson challenged the constitutionality of a New Jersey statute that allowed school districts to reimburse parents for the expenses sustained in sending their children to public or private schools alike. The consequent funneling of taxpayers’ money to Catholic parents busing their kids to parochial schools, Everson alleged, was tantamount to an impermissible establishment of religion. With its 1947 decision, the U.S. Supreme Court incorporated the establishment clause of the First Amendment—that is, the court held that the injunction to make “no law respecting an establishment of religion” applied, indeed, to the states as well as the federal government. The court ended up ruling against Everson, but the majority opinion delivered by Justice Hugo Black left both sides only partially satisfied. On the one hand, it upheld the New Jersey statute on the twofold ground that it served the secular purpose of fostering education and that it primarily benefitted children, rather than the church that operated their schools. On the other hand, Black constitutionalized Thomas Jefferson's 1801 metaphor of the “wall of separation” between church and state as the most reliable description of the First Amendment. He also stressed the importance of keeping the Jeffersonian wall “high and impregnable,” somewhat compensating discursively the victory he was granting to Catholic schools.Footnote ²¹

Everson was mostly criticized from the losing plaintiff's side.Footnote ²² Yet many American Catholic leaders understood that theirs was a pyrrhic victory, one that conflicted with their own understanding of the First Amendment and potentially threatened other forms of church-state cooperation. One of the litigators for the state of New Jersey, Porter R. Chandler, privately expressed to New York archbishop Francis Cardinal Spellman his “surprise” and “shock . . . at the narrow margin of our victory.” He contested the very decision to incorporate the establishment clause and acknowledged that, in fact, “[b]oth the majority and the minority opinions go rather far in saying that the State cannot lend its aid to support religion, even by legislation which aids all religious denominations alike.”Footnote ²³ Such a verdict, Chandler thought, retrospectively justified the choice “to confine the argument to the specific issue involved, rather than to attempt a broad philosophical discussion of the relations between Church and State.” Otherwise, “there would have been a real risk of losing the case altogether.”Footnote ²⁴

A “broad philosophical discussion” of the Catholic take on church and state is what a committee of experts gathered by the central bureaucracy of U.S. bishops (the National Catholic Welfare Conference [NCWC]) had recommended instead. The committee, headed by Jesuit theologian John Courtney Murray, had insisted that Chandler's appellee brief failed to give due consideration to the appellants’ argument involving the First Amendment and drafted an additional amicus curiae brief to address the issue.Footnote ²⁵ Yet Chandler—together with Judge William H. Speer, who would deliver oral arguments before the court—saw the proposed additional brief as “go[ing] into matters beyond the nature of the case.”Footnote ²⁶ Chandler and Speer thoroughly doubted that the court could ever be convinced that the establishment clause had any bearing on a school busing case. They had finally agreed to file the amicus curiae brief only out of acquiescence to the will of their client, the NCWC, whose chairman, Samuel Cardinal Stritch of Chicago, brokered a compromise between Murray and Spellman and only after the brief underwent deep revisions.Footnote ²⁷

This disagreement over litigation strategies, while grounded in legal technicalities and speculations as to the court's inclinations, also reflected the U.S. bishops’ unpreparedness to articulate the Catholic understanding of the First Amendment in legally rigorous terms. Not coincidentally, such endeavor had been most vehemently championed by Murray, who was himself carrying out theological research on religious freedom and was eager to tackle the questions of principle. Meanwhile, the leaders of the American hierarchy were rather reticent because their public discourse on church and state usually basked in a popular, yet theoretically fragile, middle ground.

Such discourse enjoyed widespread circulation across the American Catholic milieu. For example, in a fall 1946 article, the editors of The Catholic War Veteran (CWV) responded to the charge that Catholics sought a union between church and state by arguing that there was in fact “a sense in which every American Catholic, Protestant and Jew should seek a true relationship between Church and State—a relationship which leads government to be guided, in those things that concern man as a spiritual being, by the principles of morality, decency, justice and respect for the human person that the Church has been given the Divine mission to teach.” In other words, the Veterans argued, the bottom-line of the “union” ideal, namely, government accountability to the churches in the realm of private and public morality, ought to be pursued and welcomed by all major American faiths—even more so because “[t]he United States is[,] indeed, a nation dedicated in its original Charter to such a relationship . . . [and] to the principle that Governments, like men, are under God. There can, in fact, be no absolute divorce of religion and government in any but a positively anti-religious regime like that of Hitler's Germany or, currently, Stalin's Russia.”Footnote ²⁸

The link between the public accommodation of religion signified by the phrase “under God” and antitotalitarianism was no mere invention of American Catholic Cold Warriors. Since the 1930s, Rome had promoted a reading of the totalitarian phenomenon as the logical outcome, rather than the antithesis, of the secular liberal state—as the latter's ever-expanding jurisdictional claims led it to clash with the Church, particularly over welfare, education, and family policies.Footnote ²⁹ Acknowledging a legislator above the constituted powers had, from this perspective, everything to do with constraining the earthly sovereign. Since the Church claimed to be the visible expression of God's higher sovereignty, an authentic commitment to being “under God” necessarily entailed a measure of “horizontal” governmental self-restraint vis-à-vis the church. The CWV article stated conclusively, “Does the Church, as some of our Protestant friends occasionally seem to presume, seek an actual amalgamation of the powers of both Church and State in the same human beings? The answer is a categorical ‘No.’” Still, the editors defended the idea that there ought to be some sort of programmatic agreement between church and state, designed to ensure that they fully recognize each other's prerogatives while governing in mutual accord.Footnote ³⁰

Yet, as more examples of church-state cooperation would come under legal scrutiny over the following years, the U.S. hierarchy became hard-pressed to stake its claims in more precise terms. The first challenge involved the practice of so-called “released time,” that is, the releasing of public school students from regular class time so they could receive religious instruction in their respective faith traditions. The practice was started in the 1910s to accomplish the dual goal of keeping religion in the public school curriculum while respecting the plurality of creeds and each family's right to have their school-aged children educated according to the tenets of their faith. Faced with the practical impossibility of enrolling an ever-increasing number of Catholic pupils in parochial schools, Church authorities had jumped at the opportunity offered by released time, with Vatican approval.Footnote ³¹ In 1947, however, Vashti McCollum challenged the constitutionality of one such released-time program in force in Champaign, Illinois, whereby Protestant, Catholic, and Jewish clergy were allowed into public school buildings to teach their classes. In McCollum v. Board of Education, Justice Black put the strict-separationist arguments he had formulated in Everson to work and ruled in favor of McCollum. He argued that the unconstitutional element was the public school premises on which the teaching of “sectarian” doctrines happened, leaving unanswered the question of the constitutionality of released-time programs that allowed for religious instruction away from public school facilities.

On the one hand, the McCollum decision gave substance to Catholic fears that Justice Black's language in Everson would inaugurate a tendency to ever stricter separationism. On the other, its adverse impact across the confessional spectrum prompted a growing number of non-Catholic commentators to join in the criticism and denounce McCollum as a verdict that, by dealing a near-fatal blow to religion in the public schools, crucially contradicted the characterization of the United States as “a Nation dedicated to God and to the freedom of worship.”Footnote ³² Catholic leaders responded by gauging the opportunity to make their comprehensive ideal of a “God-fearing” republic, of a regime of friendly cooperation between church and state, appealing to Protestants, and possibly to Jews as well. This, however, required some form of involvement with organizations such as the National Conference of Christians and Jews (NCCJ), which U.S. bishops had long mistrusted, and denounced to Rome, as a potential harbinger of religious indifferentism.Footnote ³³ Yet, as the NCCJ took a special interest in discussing the church-state question in the wake of McCollum, the NCWC sent a representative. The Reverend William E. McManus, assistant director of the Department of Education, participated in an NCCJ meeting convened with the express purpose of “exploring the possibilities of formulating a Catholic-Protestant statement of policy concerning the right relationship of church and state in the United States.”Footnote ³⁴ The heavyweights of the debate were Murray for the Catholic side and Reinhold Niebuhr for the Protestants. Both agreed that McCollum was not grounded in sound constitutional law and that Catholics, Protestants, and Jews shared a common plight and should therefore form a united front of “anti-secularists.”Footnote ³⁵

Niebuhr spoke for a group of Protestants (the “Christian realists” or “neo-orthodox”) who had, indeed, become more sympathetic to the traditional Catholic argument that the church-state separation principle could catalyze the exclusion of religion from public life.Footnote ³⁶ At the same time, Niebuhr called for a more nuanced critique of the secular state and reiterated his uneasiness with Catholic political doctrine, voicing the fear that Catholics might do away with religious freedom should they become a majority in the country. In response to this, “[r]epeatedly, the Catholic representatives pointed out that . . . even if the Catholic Church did convert all or almost all the people in the United States the Catholic Church would still maintain that the church and state are separate organizations.” Once again, significantly, Catholic leaders emphasized how institutional separation would never represent a problem, while immediately specifying that “[t]his separation, of course, does not mean that the church may not exercise an indirect influence upon the state by using its sanctions to mold the consciences of the citizens in the state. This indirect influence is exercised not only by the Catholic Church but also by other churches.” As such, Catholic delegates insisted that their vision was “not incompatible with the ideals of religious liberty protected by our founding fathers [sic] in their enactment of the First Amendment.”Footnote ³⁷

Niebuhr, however, remained unpersuaded, objecting that Catholic bishops did not seem to keep a consistent line when queried about a majority-Catholic scenario.Footnote ³⁸ Some U.S. bishops were indeed confused about whether they were allowed to rule out the confessional state even in the realm of theory given Rome's continued support for many such states around the world—most notably, Spain. Yet their leader, NCWC chairman John T. McNicholas of Cincinnati, had issued a statement explicitly excluding the possibility that Catholics would alter the First Amendment if ever they became the majority faith in the United States.Footnote ³⁹ McNicholas had drafted his statement as a response to the manifesto of a newly formed, proseparationist organization aptly called Protestant and Other Americans United for the Separation of Church and State (POAU), but the text had also been reviewed and discussed in Rome.Footnote ⁴⁰ The Vatican's Congregation for Extraordinary Ecclesiastical Affairs, headed by Monsignor Domenico Tardini, was already up to date on American religious law and politics, including on McCollum and the birth of POAU.Footnote ⁴¹ Appreciating the context, Tardini gave McNicholas's statement a substantial approval.Footnote ⁴² Moreover, the Vatican daily Osservatore Romano even published large excerpts from it, also noting the Cincinnati prelate's vigorous rejection of strict separationism as the only possible interpretation of the Amendment.Footnote ⁴³ It was, therefore, with Rome's blessing that in 1948 the dean of U.S. bishops could offer an unqualified embrace (i.e., independent of any majority-minority consideration) of a qualified First Amendment.

While key to maintaining Roman bona fides in the American context, defining and controlling the meaning of separation was also the terrain where Catholic leaders could meet with like-minded Protestant counterparts. Indeed, the interconfessional agreement at the NCCJ meeting was eventually reached on the idea that “the so-called principle of separation of church and state is not an absolute.”Footnote ⁴⁴ A few weeks after the conference, twenty-five “moderate” Protestant leaders signed onto a statement declaring that “Jefferson's oft quoted words, ‘wall of separation,’ which are not in the Constitution but which are used by the court in the interpretation of the Constitution, are a misleading metaphor. Cooperation, entered freely into by the State and the Church and involving no special privilege to any Church and no threat to the religious liberty of any citizen, should be permitted.”Footnote ⁴⁵

While impressed with the work carried out under NCCJ auspices in this circumstance, NCWC's delegate, McManus, shared the hierarchy's traditional reservations about it. He observed that the organization presented “one major difficulty,” namely, “its tendency to water down religion in the interest of inter-group harmony.” Therefore, he proposed that the hierarchy “cooperate” with the NCCJ so that “the organization may be led to understand that inter-group harmony does not depend upon the suppression of sectarian differences.” Rather, it was “an understanding of sectarianism that will produce good relations between religious denominations in the United States and that will give these groups on opportunity to foster the civic friendship so earnestly recommended by the Holy Father.”Footnote ⁴⁶ McManus made clear, in other words, that his point in stretching out a hand to Protestants as a representative of the bishops had nothing to do with the theologically liberal ecumenism that had first inspired the founding of the NCCJ, but everything to do with protecting uncompromisingly Catholic spaces in the American religiously pluralistic landscape.Footnote ⁴⁷ As the NCWC chairman put it, the Church was “not interested in Released Time in order to bolster up inter-faith and inter-credal movements.” Rather, archbishop McNicholas thought that “each religious group should take advantage of Released Time to strengthen its own position, without violating charity.”Footnote ⁴⁸

Indeed, for the sake of released time, Catholic Church officials even tried to approach Protestant agencies who had nothing to do with, but were in fact opposed to, any ecumenical enterprise. The NCWC sent a representative, Monsignor Thomas J. McCarthy, to meet with Baptist Conference leaders Joseph M. Dawson and E. Hilton Jackson, both POAU board members, officially to settle a dispute arisen after a heated exchange of epithets between the two organizations.Footnote ⁴⁹ McCarthy, though, also seized the chance to explain the Catholic argument for church-state cooperation, even suggesting that the Baptists’ own approach to public affairs contradicted the strict separationism they claimed to hold dear. He queried Dawson about “the apparent inconsistency” of the Baptist position, which was fiercely opposed to any kind of government aid to religious organizations, and yet willing to “petition the Federal Communications Commission for an FM band on the broadcasting spectrum.” Weren't they, McCarthy asked, admitting that some aid was permissible? Reporting back to NCWC General Secretary Howard J. Carroll, he wrote that Dawson “indulged in a neat bit of double talk as an answer to that,” and argued that “the matter of an FM application did not constitute a contractual relationship with the Government, whereas tax monies applied to religious schools did. . . . He seemed to miss the point that there are many different kinds of contracts and that a meeting of wills was the touchstone of every contract.”Footnote ⁵⁰

Meanwhile, a new legal challenge to released time called for yet another effort at Catholic-Protestant cooperation. With the support of the American Civil Liberties Union (ACLU), plaintiffs Tessim Zorach, a practicing Episcopalian, and Esta Gluck, of Jewish faith, charged that the Brooklyn regimen of released time was unconstitutional even if religious instruction was imparted outside the public school facilities. Herman E. Wornom, the executive secretary of the Board of Christian Education of the Protestant Council of the City of New York, informed Judge Charles H. Tuttle, chairman of the Greater New York Coordinating Committee on Released Time, of having attended “as observer” a meeting convened by the plaintiffs and their supporters at New York City Community Church.Footnote ⁵¹ Wornom reported that Gluck had expressed the intention to argue in court that released time was “in fact” unconstitutional because “there is inherent in the released time practice abuses of the rules and regulations which constitute mingling of church and state.”Footnote ⁵² Among the examples of abuse, Gluck mentioned “priests and nuns . . . presumably using certain pressures to get the children to leave school and come to released time” and “many minor ways in which released time made for divisiveness and for marking religious children as Catholic, Jew or Protestant.”Footnote ⁵³ Tuttle forwarded Wornom's letter to Chandler, who in turn instructed the Brooklyn diocesan authorities to investigate the claims of abuse.

While the New York Supreme Court would eventually find “no triable issues of fact” and uphold the constitutionality of Brooklyn's released-time arrangement, the case had foregrounded “divisiveness” as an objection to public accommodation of religious pluralism. Commenting on the opinion delivered by Justice Anthony J. DiGiovanna, Porter Chandler remarked that it had dealt “very effectively with the totalitarian implications of our opponent's argument.”Footnote ⁵⁴ DiGiovanna had deemed the plaintiffs’ argument consistent with those philosophies “wherein atheism and suppression of all religions are preferred to freedom of the individual to seek religious instruction and worship,” even if Zorach and Gluck's right to practice their faith privately would have been untouched by a verdict in their favor.Footnote ⁵⁵ The Justice argued that the petitioners “misconceive[d] the American principle of religious freedom,” which did not consider religion as something “against which there should be a rigid quarantine.” Rather, every state constitution contained language “which either directly, or by clear implication, recognizes a profound reverence for religion and an assumption that its influence in all human affairs is essential to the wellbeing of the community.”Footnote ⁵⁶ When the state Court of Appeals, where Zorach landed on May 31, 1951, also dismissed the case, the NCWC hailed the decision as the recognition that parental rights in education were not trumped by the compulsory education law. Moreover, the bishops hoped that, when appealed, the U.S. Supreme Court would “appropriately modify the position which it took in the McCollum case.”Footnote ⁵⁷

As Catholic enthusiasm for DiGiovanna's opinion illustrates, the argument for parents’ right to retain control of their children's education was an argument about governmental self-restraint vis-à-vis the Church, and thus part and parcel of the broader Catholic argument against totalitarianism. Parental rights found their vindication in Catholic doctrine about the natural primacy of the family as the first of the “three necessary societies,” the bearer of prerogatives that delimited the contours of conceivable governmental outreach. In his 1929 encyclical Divini Illius Magistri, Pope Pius XI had invoked this doctrine precisely in the context of a fierce controversy with the Italian fascist regime over control of education. The encyclical vehemently deplored “how, particularly in modern times, the State has violated and does violate rights conferred by God on the family,” and offered as a positive counterexample the U.S. Supreme Court decision in Pierce v. Society of Sisters (1925), which had declared that “it is not in the competence of the State to fix any uniform standard of education” since “the child is not the mere creature of the State.” Rather, parents had “the right coupled with the high duty, to educate him and prepare him for the fulfillment of his obligations.”Footnote ⁵⁸ Only a state that recognized the family's ontological priority under the natural law and protected the parents’ right to set their sights, and those of their children, onto higher ends than those of the state itself (“under God”) could avoid the path to totalitarianism.

In fact, both sides saw the controversy over released time as an argument over the proper limits of governmental outreach. On the eve of the Zorach verdict, two sparring articles had appeared in The Nation. Authoring a piece in support of released time was Edward S. Greenbaum, a Jewish lawyer who, according to Chandler, regretted “very keenly the opposition to released time on the part of certain bodies which claim the right to represent people of his faith.”Footnote ⁵⁹ Chandler referred to the American Jewish Congress, and in particular to its chief counsel, Leo Pfeffer, a staunch separationist who had filed an amicus brief for McCollum, but whom other Jewish organizations had prevented from aiding ACLU in Zorach “to avoid sparking a Jewish-Christian confrontation.”Footnote ⁶⁰ Greenbaum's piece particularly emphasized, as NCWC's Carroll had, that the court of appeals in Zorach had affirmed that “the custody, care, and nurture of the child resides first in the parent, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder,” and that such parental rights were “true and absolute rights under natural law, antedating, and superior to, any human constitution or statute.”Footnote ⁶¹ In other words, the Supreme Court ought to shun concerns over “divisiveness” and leave state legislatures free to accommodate the right of parents to direct their children's upbringing, even when the parents demanded public schools’ cooperation with religious agencies. Yet it was precisely this sharing of responsibility that the article opposing released time, penned by prominent Progressive educator Vivian Trow (V. T.) Thayer, cautioned against. Thayer argued that “[i]nsistence on religious instruction—either inside the school or outside but in cooperation with the school . . . both detracts from the significance of the school's unique function in the area of common values and encourages teachers and administrative officers to shift their responsibility to the church.”Footnote ⁶²

Such sharing of public responsibilities, rather than a mere hands-off approach toward religion as a private right, was precisely what Catholic leaders called for. U.S. bishops entered the world that Everson created with a distinctive predilection, rooted in Roman Catholic political culture, for institutional cooperation between church and state. Prompted by legal developments, they strove to defend the reasonableness of their position before sympathetic Protestants and Jews, who likewise advocated, and sought to codify, a robust role for religion in liberal pluralist democracy. As Cardinal Spellman remarked when finally the Supreme Court conclusively upheld the Brooklyn released-time program, governmental self-restraint and safeguard of parental rights ultimately stemmed from the God-fearing nature of American democracy rather than its liberal architecture.Footnote ⁶³

Released Time versus Bible Reading?

How far would the Catholic Church go to defend this “confessionally ecumenical, yet still religiously specific, conception of American democracy,” given that, in the United States, Catholics were still a religious minority?Footnote ⁶⁴ The bishops had to grapple more thoroughly with this question when Bible-reading cases started to overlap with released-time cases. The American Catholic Church had traditionally opposed Bible reading and other religious exercises in U.S. public schools on the grounds that they were unmistakably Protestant practices, whereas local school boards contended they were nonsectarian, and therefore consistent with the religious freedom provisions enshrined in state constitutions. The school boards’ claims made it hard for the Church to argue that its qualms were not with the presence of any religion in the classroom, but just with the identification of nondenominational Protestantism in the classroom as the appropriate way to keep religion in while respecting pluralism.Footnote ⁶⁵ Eventually, Catholic authorities made the corporate decision to invest in the creation of their own private network of parochial schools and colleges, rather than risking the exposure of Catholic pupils to Protestant teachings and practices. Yet the search for a solution to the religion-in-the-public-schools conundrum had not ceased. In fact, by the 1920s, it had led, as we have seen, to Catholic support for released-time programs.

While working to protect released time in Zorach, Porter Chandler had been keeping an eye on any local church-state controversy that threatened to reach the Supreme Court. In March 1951, he informed Cardinal Spellman that the United Secularists of America were going to appeal the New Jersey Supreme Court ruling in Doremus v. Board of Education of Hawthorne, which had upheld the reading of passages from the Old Testament in the public schools of New Jersey.Footnote ⁶⁶ Although the ruling seemingly clashed with the longstanding Catholic uneasiness with Bible reading in the classroom, the prospect of an appeal to the highest federal court against it did not entice either Chandler or Spellman. In fact, they both welcomed the New Jersey Supreme Court's verdict, and even considered the possibility of filing a Catholic amicus brief for New Jersey.Footnote ⁶⁷

The director of the NCWC Legal Department, Eugene J. Butler, had likewise greeted favorably the New Jersey court decision, particularly inasmuch as it argued that McCollum “was never intended to outlaw beneficial cooperation between church and state.”Footnote ⁶⁸ Yet both Chandler and Butler recommended keeping the Catholic Church out of the Doremus litigation. First, he observed that the Supreme Court had not yet assumed jurisdiction—in fact, it would eventually dismiss the case precisely for want of jurisdiction. Secondly, Butler reminded Spellman that there were “important theological as well as educational and legal implications in the case.”Footnote ⁶⁹ Enclosed for handy reference was a copy of a 1924 Decree of the Holy Office, which established that it was “absolutely necessary” to “explicitly and peremptorily” forbid Catholic pupils from assisting in Bible readings offered without authorized commentary whenever “the local laws give full liberty to the children to absent themselves from such readings.”Footnote ⁷⁰ Butler had already acknowledged that the absence of Church-backed commentary made the practice at issue in Doremus “not in full harmony with this Decree.” He also noted, however, that “children who do not desire to participate [were] excused upon parental request,” thus safeguarding the core injunction of the Holy Office. Moreover, Butler observed that the case had “tremendous strategic value, in so far as the ultimate modification of the McCollum case is concerned.”Footnote ⁷¹ Eventually, the Legal Department decided against an official involvement of the NCWC. However, precisely because the Supreme Court's involvement in Doremus might “militate against favorable action in the New York Released Time case,” he strongly recommended that U.S. bishops offer their legal resources and personnel to assist the attorneys that would defend New Jersey. The goal was to “do everything possible to fortify the argument against assumption of jurisdiction by the Supreme Court.”Footnote ⁷² If covertly, Catholics would help keep Bible reading in the schools.

While the court eventually refused to hear Doremus, another Bible-reading case decided by the Supreme Court of New Jersey had the potential of reaching the highest court in the fall of 1953. In Lecoque v. Board of Education, however, the parties were inverted. This time it was a Catholic, Ralph Lecoque, and a Jew, Bernard Tudor, who had challenged the proposed distribution of the Protestant Gideon Bible in New Jersey public schools. And the state Supreme Court had ruled in the plaintiffs’ favor. In a letter to John J. Rafferty, chief legal advisor to the New Jersey bishop—who was, therefore, already at work to support state attorneys in the defense of Bible reading in Doremus—the NCWC legal department's associate director George E. Reed expressed the fear of litigation before the unpredictable Court. He told Rafferty that “[a]ccordingly, anything that you can do to dissuade the State from appealing would be very helpful and appreciated.” Reed also directed Rafferty to inquire into the attitude of Gideons International, co-defendant in Lecoque, with respect to an appeal. “Frankly,” he commented, “I think that it would be foolish for them to bring the case to the Highest Tribunal as it would jeopardize similar operations in other states.”Footnote ⁷³ Indeed, Reed seemed to be more sympathetic to the plight of the evangelical group—forced to accept defeat in New Jersey in order not to risk a potentially lethal blow at the federal level—than he was to the major architect of what was ostensibly a joint Catholic-Jewish victory. “Undoubtedly,” he bitterly wrote with reference to the strict-separationist Jewish jurist, “Mr. Leo Pfeffer would welcome such a turn of events.”Footnote ⁷⁴

While the plaintiffs may, indeed, have “sought to frame the case as two sides of America's religious triangle fighting for dignity and respect,” Catholic Church leaders and their counsels expressed no interest in such a fight.Footnote ⁷⁵ In his private correspondence with the New York archdiocesan chancery, Porter Chandler showed no sympathy for the Catholic parent-plaintiff, Lecoque, even after he was eventually removed from the case, following his decision to enroll his child in a parochial school. “My understanding,” he noted, “is that when that case was originally started, with a Catholic and a Jewish parent as plaintiffs, the participation of the Catholic parent was without the approval (or at any rate without the considered approval) of the Diocesan authorities. The Diocesan authorities thereafter did all they could to disassociate themselves from the suit.” Moreover, Chandler defined as “altogether regrettable” the fact that “in press releases and otherwise the American Jewish Congress and the American Civil Liberties Union have continued to trumpet the claim that the attack on the Gideons’ program in this litigation is a joint Jewish-Catholic-Civil Liberties campaign.”Footnote ⁷⁶ Chandler expressed the same thoughts to Eugene Butler. After reporting that the Gideons had sought legal advice from his own law firm—which had given Chandler the chance to try to persuade them to forsake appeal to the Supreme Court—the New York attorney reiterated his annoyance at the fact that the Jewish Congress and ACLU had construed the litigation as having the official backing of the diocesan authorities. He thought it “would be extremely unfortunate for the Supreme Court or the public to get the impression that the Catholic Church is backing the American Jewish Congress and the Civil Liberties Union in an attempt to prevent Protestant school children from receiving Protestant New Testaments even when their parents consent.”Footnote ⁷⁷

To be sure, Chandler understood that suspicion of a coordinated Catholic-Jewish assault on Protestantism in the classroom would easily play into the tropes of anti-Catholic propaganda. Yet, as we have seen, keeping a coherent stance in favor of the right of parents to retain control of their children's education was just as important from a Catholic doctrinal standpoint. Indeed, just as the statute at issue in Doremus explicitly allowed parents to have their children excused from Old Testament reading, in Lecoque the Gideon Bibles were only distributed to children whose parents had signed request forms, which made the distribution hardly objectionable on doctrinal grounds. Significantly, the Catholic emphasis on the parental prerogative in education, even for Protestant parents, had already surfaced in the context of a controversy over the state of religious freedom in Franco's Spain. In the June 18, 1949, issue of Information Service, a weekly bulletin published by the Department of Research and Education of the Federal Council of Churches, a Catholic source was quoted as acknowledging that requiring Protestant public school kids to receive Catholic religious instruction, as the Spanish government did, was not “in line with the teaching of the Catholic Church that the parent has the right to determine the religious instruction of the child.” Rather, the Catholic source suggested, the Spanish government should reconcile its legitimate interest in providing religious instruction with its Protestant citizens’ freedom of conscience “by having the Protestant ministers give the children of their parishioners religious instruction, preferably at a regular class period in school, or through ‘released time.’”Footnote ⁷⁸ If a conflict arose between state prescription and parental conscience, the state was called to make room for the latter, and not to refrain from offering any religious option in the first place.Footnote ⁷⁹

Although, for Catholic authorities, this was more obviously true and convenient in Spain, where Protestants were a small minority and the Church was just beginning to take the issue of dissident parents seriously, the same basic logic governed Church actions in the American context as well. Released-time programs represented the optimal solution because they demanded, and testified to, the state's positive commitment to religion while at the same time deferring to religion's institutional representatives as to the actual carrying out of religious instruction (e.g., the definition of the curriculum and the appointment of personnel). Thus, released time was a particularly apt solution for staying clear of “neutrality” while respecting religious pluralism in a way the nondenominational Protestant Bible could not. Litigation to uphold its constitutionality ought to be given priority. Yet, provided that Gideon Bibles would not be handed out to children whose parents had not consented, even non-Catholic, majoritarian-controlled piety on public grounds was worth defending, because any acknowledgment of religion in the public sphere was better than no acknowledgment at all.

Prosecutors in Lecoque had enlisted the 1924 Holy Office decree forbidding Catholic participation in Protestant Bible reading to suggest that even the Vatican would have approved of a religiously neutral public sphere (including schools) as the only plausible solution to religious pluralism.Footnote ⁸⁰ Yet it is hard to imagine a more unlikely supporter of the “neutral” state than the decree's signer, Cardinal Rafael Merry del Val, the Vatican Secretary of State under Pope Pius X and chief architect of his policy of intransigent reaction to the secularization laws promulgated by the French (1905) and Portuguese (1910) republics.Footnote ⁸¹ Moreover, Roman perspectives on the issue had not significantly changed by the 1950s. Even as the Vatican was learning to deal with confessional pluralism in the postwar European democracies, “neutrality,” when defined as avoiding entanglement with any and all religion, was consistently rejected. In 1946, the French bishops had argued that “[i]f in a country where creeds are divided ‘State Secularism’ is taken to mean that the State permits everybody free practice of his religion, then this definition is in conformity with the teachings of the Church.”Footnote ⁸² Not so, however, if “state secularism” meant that the state should “paralyze or ruin” the work of religion or, significantly, if it signaled “the intention of the State not to submit to any higher moral considerations and not to recognize any other guiding principles for its actions.”Footnote ⁸³ In other words, if governments committed to being “under God,” Catholics could accept the sharing of public favor with other faith groups. Moreover, the Vatican explicitly rejected “neutrality” in European public schools as well. In 1948, Civiltà Cattolica lucidly admitted that “the school problem is yet to be solved in those countries where there is no confessional homogeneity and it is not possible to multiply the educational institutions—since the alternative of the neutral school is to be discarded.”Footnote ⁸⁴

Far from being an appealing legal outcome, a public sphere purged from any and all religion was a recurring Catholic nightmare, in America no less than in Europe. This logic explains why Chandler would go as far as suggesting that, should Lecoque eventually reach the Supreme Court, the NCWC should “consider the advisability of filing a short amicus brief to correct any . . . misapprehension.” The brief, as Chandler envisioned it, would make it explicit that “[r]esponsible Catholic authorities” were not supporting the case against Gideons International. In fact, they objected to the “unfortunate language in the opinion of the New Jersey Supreme Court which we feel went too far.” Moreover, the brief would stress that Catholics had no qualms with Protestant children receiving Protestant Bibles with their parents’ consent.Footnote ⁸⁵ Butler seemed to be on the same page and urged Chandler to “explain to the Gideons the hazards of an appeal not only with respect to their activities but in the interest of religion generally.”Footnote ⁸⁶ Eventually, the Gideons were not persuaded and went to the Supreme Court, which, however, did not take the appeal. Recapping his thoughts on the case a few days later, Chandler remarked once again on how, in the Lecoque case, the Supreme Court of New Jersey “used some rather drastic and unfortunate language on ‘separation of Church and State’ which harked back to the language of the Supreme Court of the United States in the unfortunate McCollum case.” He also stressed that it was only after careful consideration that he and the NCWC legal department had agreed that “no good would be achieved by having that decision reviewed by the Supreme Court of the United States.”Footnote ⁸⁷ The prospect of having the Gideon Bible removed from the New Jersey school, far from being hailed as a triumph, appeared to major legal representatives of the Roman Catholic Church in America as the lesser evil. They took consolation in the fact that “it will be a precedent only in New Jersey.”Footnote ⁸⁸

The time-honored Catholic fear of the naked public square trumped any goals American Catholic leaders might have been expected to have as a religious minority. To be sure, as Lecoque's decision to issue a legal challenge to the Gideon Bibles indicates, not every Catholic layman shared the bishops’ priorities or their judgment that an opt-out would be enough to make Protestant Scriptures in the school tolerable for Catholic pupils. Yet it is worth noting that there was no unity of sentiment among the laity, either. In fact, some agreed with the hierarchy that fighting Bible reading, at least of a certain kind, in the name of church-state separation was contrary to Catholic teaching and interests.Footnote ⁸⁹

Moreover, the American bishops’ seemingly pro-Protestant attitude cannot be explained away in light of an alleged anxiety for social status.Footnote ⁹⁰ Consensus for Bible reading in the public schools, as long as no coercion or denominational discrimination was involved, joined together “sociological types” of Catholic prelates as different as Los Angeles archbishop James F. A. McIntyre, once Spellman's vicar in New York and a skilled political player and theologian Francis J. Connell, C.SS.R., a professor at the Catholic University in Washington and self-appointed guardian of Roman orthodoxy against any compromises with American realities.Footnote ⁹¹ In 1952, for example, it was on the strength of Connell's theological counsel that McIntyre agreed to endorse the “Bible Week” sponsored by Los Angeles school superintendent C. C. Trillingham, provided that public school teachers had a say in the selection of the version of Scriptures.Footnote ⁹² Furthermore, the practice was authorized by those Catholic leaders farthest removed from U.S. domestic intergroup competition: those headquartered in Rome, in charge of keeping a consistent line for the government of the global Church.

To be sure, the pre-Vatican II Roman Curia generally kept interconfessional activities on a short leash, as American Catholic leaders were well aware. Butler's reticence to publicly enlist the NCWC in support of the pro-Bible New Jersey attorney or the Gideons exemplifies the bishops’ self-consciousness and fear of Roman objections. Yet when Vatican officials learned of Catholics joining interconfessional coalitions to protect religious interests, rather than to pursue ecumenical dialogue for its own sake, they generally granted their stamp of approval.Footnote ⁹³ The U.S. bishops’ legal strategies to keep religion in the schools were no exception, nor was their qualified approval of Bible reading.

A NCWC report touching on the issue, written before the McCollum decision, accidentally landed on Monsignor Tardini's desk in Rome. The report's author, Vincent Allred, had incorrectly prophesized that the Supreme Court would uphold released time in light of West Virginia v. Barnette. He cited at length a passage of Justice Jackson's opinion in Barnette where he briefly discussed Bible reading and the court's reluctance to declare it unconstitutional “by denying states the right to entertain such convictions in regard to their school systems because of a belief that the King James Version is in part a sectarian text to which parents of the Catholic and Jewish faiths and some Protestant persuasions might rightly object to having their children exposed.”Footnote ⁹⁴ Allred inferred that released time likewise merited protection as a legitimate expression of states’ right to set their own educational policy—more so, he reasoned, because both Bible reading and released time were held to be nonsectarian in character.Footnote ⁹⁵ Most crucially, Allred observed that Bible reading and released time were comparable in that they both allowed opt-outs. “Unfortunately,” he wrote, “there is some precedent . . . in a series of cases where a minority of courts have ruled against the [B]ible being read in public schools, even though pupils conscientiously opposed might be excused.”Footnote ⁹⁶ Allred's manuscript had been sent to every American bishop, including the Apostolic Delegate, Amleto Cicognani, who had forwarded it to the Vatican as part of his role as episcopal liaison between Rome and Washington, but without the NCWC's explicit consent. The then-head of the NCWC Legal Department, William Montavon, in fact protested that he had made “no request . . . that the pamphlet be sent to the Holy See or to any other person.”Footnote ⁹⁷ Yet, to everyone's surprise, Tardini expressed “gratification” at Allred's accomplishment.Footnote ⁹⁸ He evidently had no qualms about a line of argumentation that would uphold Bible reading and released time as the product of positive church-state negotiation in their respective contexts.

While accommodation as the preferred alternative to neutrality could take different forms, all forms were welcome, in Rome no less than in Washington, as the expression of the civil powers’ willingness to share public spaces and functions with the churches—just what the liberal secular state had seemed to constitutively oppose, according to its Catholic critics, by “privatizing” religion. The leaders of the Catholic Church in America understood “under God” as exemplifying precisely such willingness.

Engel's Challenge to the Nation Under God

It should be no surprise, therefore, that in the widespread outrage provoked by the Supreme Court decision in Engel v. Vitale, outlawing the recitation of state-composed, nondenominational prayers in American public schools, Catholic bishops stood out as some of the ruling's most vehement critics. Engel took issue with a short prayer (“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country”) composed only a few months after Zorach, in November 1952, by the Board of Regents in charge of state education in New York. The Regents, among whom were Protestants, Catholics, and Jews, had “unanimously approved” of the initiative, stating their conviction that “the fundamental American belief in and dependence on God were the best security against the dangers of these difficult days.”Footnote ⁹⁹ News of the Regents’ decision had not only circulated widely—it was reported, among other venues, in the monthly bulletin of the Bureau International Catholique de l'Enfance—but also failed to raise any eyebrows once it reached the Roman Curia.Footnote ¹⁰⁰ Accordingly, when the Regents’ prayer was struck down, Catholic leaders protested with the same arguments they had used in urging its composition. Los Angeles's now-Cardinal McIntyre called the decision “positively shocking and scandalizing to one of American blood and principles.” He accused the court of “biting the hand that feeds it. This, because all law comes from God—all authority comes from God. Yet the court presumes to deny to the children of God in our schools the opportunity to speak to the Creator, the Law-Maker, the Preserver of Mankind. This decision puts shame in our faces as we are forced to emulate Mr. Khrushchev.”Footnote ¹⁰¹ Once again, the Cold War theme of antitotalitarianism was directly linked to an argument for some form of acknowledgment of a hierarchy of sovereignties.

This line of reasoning percolated in Congressional debates about a possible legislative reaction to Engel. The Senate Committee on the Judiciary held a series of hearings, from 1962 through 1964, to discuss several proposals. Lawrence X. Cusack, who had succeeded Porter Chandler as chief counsel for the Archdiocese of New York, was called to testify before the Committee. In his remarks, Cusack described Engel as “a decision out of line with the conscience and religious heritage of the American people” and declared himself in favor of a legislative amendment because “the error is too serious, the danger to our American institutions too immediate, to be left to the evolutionary process of corrective decisions by the Court itself.”Footnote ¹⁰² Moreover, Cusack argued that “any such amendment should be directed to the underlying constitutional fallacy of the Court's decision—a misinterpretation of the No-Establishment Clause of the First Amendment—rather than to the narrow issue of a voluntary, nondenominational prayer.”Footnote ¹⁰³ Cusack went out of his way to protest that, in criticizing Engel, he was “by no means attacking the principle of separation of church and state as set forth in the religious-freedom clauses of the First Amendment.”Footnote ¹⁰⁴ Indeed, American Catholics in general, Cusack claimed, were “irrevocably dedicated to the constitutional principle of separation of church and state, properly interpreted and properly applied.”Footnote ¹⁰⁵ But the key point lay precisely in the phrase “properly interpreted and properly applied,” to which Everson had added new weight.

Cusack set out to explain why the Catholic understanding of what constituted “proper” separation favored simultaneously a separate Catholic educational system and the kind of school prayer struck down in Engel. The lawyer underscored that the parochial school system had historically served to avoid “indoctrination in public schools of Catholic children in the religious tenets and practices of other denominations,” and argued that Catholics would have likewise still objected to “denominational teaching or services in our public school system” in the absence of opt-outs—in full accord with the guidelines set by the 1924 Holy Office Decree.Footnote ¹⁰⁶ Yet the prayer at issue in Engel did not fall in the category of “denominational teaching or service,” according to Cusack. Rather, he called it “a short, simple, nondenominational declaration of dependence upon God and request for His blessings” and “no more than a recognition that our public school system is not designed to make God a stranger in the classroom.”Footnote ¹⁰⁷

A more thorough exposition of the Catholic case against Engel came in the form of a sermon delivered by the Reverend Father Joseph F. Costanzo, a Jesuit jurist who taught at Fordham and Georgetown. Costanzo tackled the court's specific holding that the Regents’ prayer was unconstitutional because the Regents—that is, a government body—had composed it. “If by composition it is understood that the prayer originated in wording and meaning wholly with the New York Board of Regents and entirely on their own initiative then the argument is without foundation,” Costanzo protested. Having been merely receptive to a public consensus embodied in key national documents no less than in “the rights and anxieties of religious-minded parents of students in the public schools,” he argued, the Regents could be said to be the authors of the prayer “[o]nly in a minimal sense—almost only in the capacity of an amanuensis.”Footnote ¹⁰⁸ The point, to use Cusack's words, was that the Regents’ prayer did not constitute illicit entanglement between church and state because it was not an expression of “state religion.” And it was not tantamount to “state religion” because a state body was merely transcribing, making room for something that had originated elsewhere, in the religious conscience of American believers. True, here there was no practical deferring to the institutional churches as in released-time programs. Yet the Regents’ Prayer, Costanzo held, was “the formal expression of the practical wisdom of a self-regulating community,” the result of a good-faith attempt by its members “to find a reasonable accommodation and mutual adjustment of one another's choices.”Footnote ¹⁰⁹ The court, however, had seemed to be blind to such crucial interactions, holding, rather, that “whatever takes place permissively in a State school under official supervision or conduct necessarily involves government responsibility to some degree or another.” Differently from the court, Costanzo argued, “[w]e are of the opinion that not every and any Government involvement in a religious act is eo ipso suspect and tainted with unconstitutionality.”Footnote ¹¹⁰

In the concluding section of the sermon, tellingly titled “One Nation Under God,” the Jesuit expanded on just what kind of government involvement was legitimate, and indeed welcome, by further qualifying his critique of Engel. After decrying how Americans had “allowed a creeping gradualism of secularism under one specious pretext after another to take over [their] public schools,” he pointed not to Soviet Russia but rather to Nazi Germany as the one totalitarian state whose trajectory appeared more comparable, as far as church-state relations were concerned, to the American one.Footnote ¹¹¹ Instead of the official, full-fledged persecution of religion enacted by the Soviet authorities, successive German governments had gradually restricted “the official profession of belief and dependence upon God and withdraw[n] religious exercises exclusively to churches and homes” until, “when the tragic hour of conflicting allegiances bore upon its citizens, they obeyed with passioned submission and gratified acquiescence a supreme and absolute state authority to the complete destruction of the state and to the enduring shame of their religious confessions.” Costanzo understood the public profession of dependence on God as a check on governmental authority, whereas the ejection of religious belief from the public square doomed the state's chief institutional competitors (the churches) to practical ineffectiveness in the social and political life. As the Nazi example illustrated in his view, such ineffectiveness could be no less detrimental to the state than to the churches. Therefore, Costanzo concluded that the Supreme Court would have had a good reason to uphold the Regents’ Prayer, “to impress on all alike—on the participants and the nonparticipants—that there is a higher allegiance to God under which men must rule. . . . It is not without profound symbolism that public authority should be part of an acknowledgment of dependence upon God.”Footnote ¹¹² If coercion, quite narrowly construed, was out of the picture, in Bible reading cases as in the state-sponsored nondenominational prayer scenario, public accommodation of religion ought to be the norm.

In January 1963, Monsignor Reed of the NCWC Legal Department wrote to its new director, William Considine, that, in his opinion, “parents have a real stake in the maintenance of such practices. . . . [I]t is not sufficient to say that religious instruction should be confined to the home; the school must not be used to make it more difficult for the parents to engage in such teaching.” Reed had made this case during a meeting with the members of the church-state commission of the Episcopal church, who replied by asking whether his was a personal opinion “or whether the Church had ever expressed it.” The covert character of Catholic support for Bible reading in cases like Doremus and Lecoque made some Protestants marvel at the Church's fierce criticism of Engel. Reed, however, referred his interlocutors to the U.S. bishops’ 1948 statement “The Christian in Action,” which argued that religion belonged in the public schools, regardless of the availability of private options for religious instructions. Vocally claiming a continuity in the Catholic position on the subject, Reed argued once again that, provided an opt-out was on the table (he “emphasized that the recitation of prayers and readings from the Bible should not be done on a compulsory basis”), religious exercises on public premises were welcome and in fact sought out.Footnote ¹¹³ Within a few months, however, the same axe that had hit the Regents’ Prayer would definitively fall on Bible reading in Abington v. Schempp.

Alongside episcopal leaders, many prominent lay Catholics remained involved in the debate about a congressional response to Engel through the following years, even as the most prominent American Catholic of the 1960s, John F. Kennedy, took a different line.Footnote ¹¹⁴ Famously, President Kennedy argued that there was “a very easy remedy” to Engel—namely, to “pray a good deal more at home.”Footnote ¹¹⁵ In his efforts to contrast the idea that a Catholic in the White House would bring about a church-state union, Kennedy committed to the very privatization of his faith that Church leaders, while likewise standing against church-state union, had been resisting. Kennedy's election to the presidency may well have signaled that Catholics were now fully accepted by their fellow Americans, but it did little to vindicate the U.S. Catholic bishops’ interpretation of religious freedom. As the Jesuits of Civiltà Cattolica acknowledged in their editorial on Engel, Billy Graham spoke their mind better than JFK.

By seeking a middle ground between church-state union and separation, U.S. Catholic leaders participated in the global Church's struggle to find an updated counterproposal to an old enemy: secularism. As Detroit's Edward Cardinal Mooney wrote in a 1954 letter to Vatican State Secretary Giovanni Battista Montini, American bishops indeed hoped that the Vatican would soon go beyond such “confusing, non-univocal phrases” as union and separation, especially since, in the United States, separation had been “elevated by non-Catholics to the dignity of a constitutional principle.” But in their stead, they recommended framing the Catholic position in terms of institutional distinction between church and state yet complemented with “[t]he supremacy of the spiritual and the consequent binding force of the moral law on states as well as individuals.”Footnote ¹¹⁶ In the American jurisprudential landscape, the attempt to safeguard this fundamental vision of how religion should relate to politics required fighting alongside like-minded Protestants and Jews to have a nonpreferentialist, religion-friendly interpretation of the First Amendment prevail in the courts. While unsuccessful in the short term, these efforts would regain steam with the interconfessional alliances of the neoconservative age.