Race Relations and Modern Church-State Relations

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Race Relations and Modern Church-State Relations

Thomas C. Berg*

This article concerns religion and race - two controversial

subjects that have figured prominently in America's constitutional

and political debates since World War II. In particular, I wish to

trace some connections in the last 50 years between developments

in church-state relations and developments in race relations.

Recently scholars of the First Amendment's Religion Clauses have

shown interest in how the Supreme Court's modern decisions on

that subject might have been influenced by the political, social, and

cultural context of recent decades: such factors as the changing

attitudes toward Roman Catholicism,1 the rise of secularism in

culture,2 the position of religious minorities,3 and so forth. Like

some of that other work, this Article traces the course of churchstate

relations not only in the Court itself, but in the broader

society.

It would hardly be surprising if developments concerning

church and state in the last 50 years interacted with developments

in the area of race, since the latter have been so central to

* Professor of Law, University of St. Thomas School of Law (Minneapolis). I

presented portions of the material here at the Boston College Law Review

Symposium on Separation of Church and State, in April 2002; at a Federalist

Society program on "Faith Under Democracy," in March 2002; at a summer

2001 symposium on Spirituality and Social Justice, sponsored by a grant from

the Lilly Endowment; and to a fall 2001 meeting of the Colloquium on Religion

and Philosophy at Samford University. I thank David Bains, Hugh Floyd,

Penny Marler, [OTHERS], and the participants in those sessions for their

comments on the various versions of the paper.

1See, e.g., John C. Jeffries, Jr., and James A. Ryan, A Political History of the

Establishment Clause, 100 Mich. L. Rev. 279 (2001); Thomas C. Berg, Anti-

Catholicism and Modern Church-State Relations, 33 Loyola U-Chi. L. Rev. 121

(2001); Douglas Laycock, The Underlying Unity of Separation and Neutrality,

46 Emory L. J. 43, __-__ (1997).

2See George W. Dent, Jr., Secularism and the Supreme Court, 1999 B.Y.U. L.

Rev. 1.

3See Stephen M. Feldman, Religion-Clause Revisionism: Minorities and the

Development of Religious Freedom (unpublished draft, on file with author).

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constitutional law and moral-political debate - from the

constitutional success of Brown v. Board of Education4 to the

moral-political triumph of the civil rights movement to the current

conflicts over how to define and achieve racial justice.

The central story in church-state relations in the last 50

years has been the rise of a fairly strict separation of church and

state as the overriding constitutional and moral ideal in the 1960s

and 1970s, and the partial decline of that ideal from the 1980s

through the present. The purpose of this Article is to discuss how

developments in the area of race may have facilitated both the rise

of strict church-state separationism in the 1960s and 70s and its

decline in the last 20 years. I do not claim that these connections

have been crucial, or even especially direct. I claim only that

developments in race relations created an atmosphere, a set of

general attitudes that were hospitable first to the rise of churchstate

separationism and then to its decline.

I. CHURCH-STATE SEPARATIONISM IN THE CIVIL RIGHTS ERA

The movement for equal rights for black Americans

reached its height in the 1960s and early 1970s. In the early 60s

the national media focused attention on the nonviolent protest

movement; in the mid 60s the key civil rights statutes like the Civil

Rights Act and the Voting Rights Act passed; and in the late 60s

and early 70s the federal courts reached their greatest vigor in

enforcing racial desegregation of schools through measures such as

busing orders.

During this same period in church-state matters, the

Supreme Court made dramatic moves toward the strict form of

church-state separationism. In the 1960s it struck down the

longstanding practices of official prayers and Bible readings in the

public schools,5 and in the early 1970s, in decisions such as Lemon

v. Kurtzman,6 it began to restrict severely the provision of

4347 U.S. 483 (1954).

5Engel v. Vitale, 370 U.S. 421 (1962); Abington School Dist. v. Schempp, 374