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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Development of Religious Freedom (unpublished draft, on file with author).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
U.S. 203 (1963).
6403 U.S. 602 (1971); see also Committee for Public Education v. Nyquist, 413
U.S. 756 (1973); Sloan v. Lemon, 413 U.S. 825 (1973); Meek v. Pittenger, 421
U.S. 349 (1975).
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government aid to religious schools. In these years separationism
became the dominant ideal for church-state matters not only in the
courts, but more broadly among cultural elites such as the media,
educators, and the government bureaucracy.
This section explores some possible relations between these
two concurrent developments: it suggests how certain
interpretations of the civil rights movement contributed to the
cresting of church-state separationism and to separationism’s
distinctive features.
A. Emphasis on Minority Rights
At the most general level, the 1960s’ concern with the
unjust treatment of blacks contributed to, and helped to reinforce, a
concern for the treatment of other minorities, including religious
minorities. A pervasive theme of the Warren Court’s work, as
various scholars have emphasized, was “to champion the legal
position of the underdog and the outsider in American history”7 –
to carry out the notion of footnote 4 of Carolene Products, that the
courts should show special solicitude for “discrete and insular
minorities”8 who are subject to discrimination and other
mistreatment by the majority. African Americans, of course, were
“the quintessential discrete and insular minority.”9 But the label
could also apply, with a bit of a stretch, to those who publicly
dissented from the generalized theism reflected in public school
prayers – atheists, secularists, and some prickly Christians who
thought the prayers were too watered-down. Moreover, the
quintessential American religious minority, Jews, denounced
official religious exercises as a threat to their equal status – partly
because some such exercises, such as the Lord’s Prayer and the
Bible readings in Schempp, were indeed Christian in orientation,10
but more broadly because the idea of majority rule on public
religious ceremonies was dangerous in principle to Jews and other
7Morton J. Horwitz, The Warren Court and the Pursuit of Justice 13 (1998).
8United States v. Carolene Products, 304 U.S. 138, 144 n.4 (1938).
9Lucas A. Powe, Jr., The Warren Court and American Politics 487 (2000).
10See Schempp, 374 U.S. at 207-09.
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minority faiths.11
B. Ambivalence Toward Religion-Government Interaction
In addition, the course of race relations in the 1960s helped
foster an ambivalent attitude among many elites about the public
role of religion. Although the civil rights movement itself had a
huge religious component, many in elite culture treated it primarily
as a secular movement for social justice. Even for religious elites,
their perceptions of the civil rights movement led to an ambivalent
attitude toward the intertwining of religion and government. This
attitude is exemplified in a theological outlook called “secular
theology,” which became popular in the 1960s among the leaders
of mainline or liberal Protestantism, the faith that historically had
been the most intertwined with American government and public
life.12
Secular theology arose in the late 50s and early 60s as a
response to the increasing secularization and urbanization of
society. Basically, it taught that Christians should embrace the
secular world and become active in its movements. Secular
theology’s best-known manifesto was Harvey Cox’s 1965 book
The Secular City;13 but the theology found its inspiration in some
enigmatic lines from the Prison Letters of Dietrich