Libraries & Spaces
Dr. Morrison and the First Amendment
John Courtney Murray
The Christian Century, a non-denominational weekly, was once called by Time magazine "Protestantism's gadfly." On no subject has it buzzed more insistently than on alleged Catholic "encroachments" on the principle of separation of Church and State. Recently, however, the angry buzzings gave way to a quieter hum of argument, in a series of three editorials. The first asked the question that a lot of us have been asking: "Do Protestants know what they are talking about when they discuss the issues recently raised concerning the separation of Church and State?" It admitted that "too many" did not, that prejudice and confusion dictated their views. Consequently, the second editorial laid down for Protestants an interpretation of the First Amendment. And the third applied the interpretation of the Amendment to eight specific issues.
The proposed interpretation is not without importance. It was used by the attorney for Mrs. McCollum in his oral argument of the Champaign released-time case before the Supreme Court. It furnished whatever intellectual premise there was in the recent Manifesto of "Protestants United for Separation of Church and State." It has been and will be given other publicity. But perhaps its chief significance lies in the fact that its framing marks a new phase in the Christian Century's campaign against what it terms the Catholic Church's attempt to subvert the Constitution.
In the previous phase, "separation of Church and State" figured simply as a slogan; the phase was dominated by the metaphor of the "camel's nose," by the image of the "thin edge of the wedge" being driven by the Roman Catholic hierarchy into the "wall of separation." The value of both metaphors was in their appeal to fear. It was a question, not so much of invoking con-
stitutional arguments on particular issues, as of evoking the spectral phantom of the Catholic Church dominant in America, notably in education. The idea was to sound the alarm, let the tocsin ring outour liberties are in peril, danger lies ahead, the menace looms, the ancient threat takes horrid shape againthat sort of thing.
The camel's-nose image and its appeal to fear have had great success; in many quarters anti-Catholic feeling is at a new high. In fact, some more sober-minded and far-seeing Protestants are inclined to regard the success as a bit too resounding. They begin to wonder if perhaps fear and suspicion of Catholics have not clouded the real issues, created an atmosphere in which their discussion is almost futile, and even prepared the way for newly victorious advances of secularism in American life. In fact, the Christian Century itself now recognizes the need of doing something "to keep reaction to Catholic aggressiveness from being on the Ku Klux and nativist level."
At all events, it would seem that the campaign is now entering on a new phase. The appeal to fear is not being entirely relinquished; even in one of the recent three editorials there is still talk of the "purpose [of the Roman Catholic hierarchy] to blur the principle of separation of Church and State preliminary to its complete nullification as applied to education." However, the chief thing now is to buttress the appeal to fear and suspicion by an appeal to reason and history. Says the first editorial: "This is a political, not at all a religious issue." Religious feeling is to be firmly put aside; rational argument is the order of the day. Never mind taking a suspicious look under the bed; simply "take a good look at the Constitution." It is purely a question of "what the drafters of the First Amendment had in mind"; not at all a question of what the Catholic bishops have in mind (by this time you all know that, dear readers).
This is an encouraging development. There is no use arguing with a tocsin. But one can talk to a man who has some ideas on the First Amendment. I would, therefore, be quite happy, were it not for one disturbing fact: the new, supposedly rational and historical interpretation of the First Amendment has all the appearances of a subordinate, constitutional myth tailored to fit the exigencies of the still dominant, chiefly operative, religio-political myth of the camel's nose.
Its author is Dr. Charles Clayton Morrison, recently retired after thirty-nine years as Editor of the Christian Century. Dr. Morrison is not known as an expert in American constitutional law, or in the history of American education, or in the broad juridical problem, historically highly complicated, of the relations of Church and State. His current billing states only that "his trenchant editorials and public addresses have waked American Protestants to the tremendous issues at stake in the Catholic approach to the issue." Moreover, it may be doubted whether his knowledge of the "Catholic approach" derives from intensive study of classic Catholic sourcesfor instance (to mention but a few of the great modern names familiar to the average Catholic seminarian), Bellarmine and Suarez, among the theologians; or among the philosophers, Zigliara, Taparelli, Liberatore; or among the jurists, Cavagnis, Tarquini, Bachofen, Ottaviani, Cappello, Wernz-Vidal; or among the historians, Hergenröther and Sturzo. It would seem, in fact, that Dr. Morrison's claim to audience derives rather from his mystical intuition into the nefarious designs of the American Catholic hierarchy than from solid learning in law or history. One does not indeed belittle an adversary, but one must situate him. Dr. Morrison is a gifted journalist, who is devoting his declining years to a Great Causethat of foiling, through the instrumentality of an aroused Protestantism, the plot of the Catholic hierarchy against American liberties. He is (if I may borrow a phrase, just for a moment) the Protestant camel's nose in the on-going process of the radical secularization of the American state.
Illustrative of the journalistic approach, the high devotion to the Great Cause, is his interpretation of the word "respecting" in the First Amendment: "Congress shall make no law respecting an establishment of religion." "This word," he says profoundly, "means something." In fact, it even "meant something to the drafters of the First Amendment." With attention thus aroused, one would expect some allusion to the historical sources that alone can reveal its meaning. Instead there comes the statement that gives the show away: "It means pertaining to or tending toward an establishment of religion."
WHAT'S IN A WORD?
There you have it. Dr. Morrison must needs endow the drafters of the First Amendment with his own darkly prophetic visionState legislatures permitting parochial-school children to ride on publicly financed buses; doing, in their simplicity, what is innocent enough in itself, but setting a "precedent for the enactment of future legislation pointing in the same direction, thus gradually creeping up to the goal of a full and complete establishment of religion," the goal that, as Dr. Morrison so well knows, is the object of the Catholic hierarchy's fierce desires in most of its waking moments. This, we are to believe, is "what the drafters of the First Amendment had in mind"; this is why they used the word "respecting." Its effect was to make the Amendment "more sweeping and radical than would have been the case had it merely prohibited the establishment of religion." The purpose of the word was to rap the camel squarely on the nose.
So the journalist, on his white horse. And pedestrian history? It simply tells us that the word was inserted for, the first time in the seventh and last version of the Amendment, by a conference committee of House and Senate that met to cope with differences in wording between two versions. The final House version, after four revisions of the original formula submitted by James Madison, read: "Congress shall make no law establishing religion." The Senate version read: "Congress shall make no law establishing articles of faith or a mode of worship." The task of the conference committee was primarily literaryto effect a conciliation of two versions
of the same idea. Moreover, they had to do this in such a way as to meet the one objection that the Amendment had run into on the floor of the Housethe objection that it was too sweeping and radical. Peter Silvester of New York and Benjamin Huntington of New Hampshire had voiced this objection against the House version, "no law establishing religion." The language, they said, "might be thought to have a tendency to abolish religion altogether"; "the words might be taken in such latitude as to be extremely hurtful to the cause of religion." To meet this same objection the Senate focused the idea in less sweeping and radical language: that there should be "no law establishing articles of faith or a mode of worship."
OUR PRESENT FORMULA
The conference committee finally solved the difficulty brilliantly by the present colorless formula, "no law respecting an establishment of religion." It toned down the House's too sweeping language, and generalized the Senate's too narrow language; and it kept the identical idea of House and Senate. The idea, as Madison had clearly expressed it, was to exclude the "establishment" (i.e., preference by congressional law) of any one national religion," to the legal exclusion and juridical inferiority of others. (Note that "religion" meant "articles of faith and mode of worship" to the statesmen and people of those days.)
Hence the word "respecting." The word does indeed "mean something." In fact, it happens to be in the dictionary. And no dictionary gives Dr. Morrison's teleological meaning, "tending toward," "taking a step in the direction of," "creeping up to some ultimate goal." Again, the word is familiar in legislative parlance. For instance, if a Congressman introduced a measure entitled "A Bill respecting the Grant of Statehood to Hawaii," would his fellow-Congressmen think that he was insidiously "creeping up to the goal" of statehood for Hawaii? Or would they not immediately get the meaning, "A Bill whose subject is (or whose effect would be) the grant of statehood to Hawaii"? Take, now, the First Amendment, lay aside the Great Cause, look at grammar and history, and you will say that it means: "Congress shall make no law whose effect would be the legal preferment of one religion (particular articles of faith and a particular mode of worship), with consequent legal subordination of others." In other words, you will say exactly what James Madison said in 1789.
So much for Dr. Morrison's competence and objectivity as a constitutional historian. His interpretation of "respecting" illustrates why I said that his theory of the First Amendment is simply concocted to support his theory of the fearful, mythical camel's nose. On these, grounds alone it deserves to be thrown out of court. The interpretation of the First Amendment is a delicate matter. For this reason it must be approached with detachment, and with correct method. When method is defective, when a priori positions dictate conclusions, the whole interpretation thus arrived at is highly suspect. This is the case with Dr. Morrison's interpretation. Fears, not facts, are its major premise. He is so alarmed by what he thinks may happen, say, in 1989, if that horrid camel pushes farther forward, that he cannot be trusted to state objectively what happened in 1789, when the First Amendment was framed.
One other vitiating defect in his method must be pointed outits excessive and disastrous simplification. He completely skips the complicated, vital problem with which our supreme judiciary is now engagedthat of the development of American constitutional law. When the "establishment" clause was ratified in 1791, a major intent was to leave intact State sovereignty in the field of governmental relations to religion. (Remember that in 1791 several States had established churches, and for generations thereafter the bulk of the States supported church-affiliated schools. These arrangements were terminated, not by Federal constitutional law, but by the political process, by the vote of the sovereign people of the United States.)
The question, therefore, rises: Can the "establishment" clause, originally designed to leave the States free, now be made a restraint on the States? And if so, how? Directly, through the Fourteenth Amendment, or indirectly, through the "free exercise" clause, which, as stating one of the "privileges and immunities of the U.S. citizen," is now transmitted to the States through the Fourteenth? Moreover, if the "establishment" clause is somehowdirectly or indirectlytransmitted, what is its content, as transmitted? The original, narrow content (no preference in law for any particular articles of faith or mode of worship), or some developed content? And if the latter, why the development? On the other hand, if the "establishment" clause is not transmitted, are there in 1948 restrictions on State sovereignty which did not exist in 1791, and what are they, and whence are they derived and how? These are still open questions, and exceedingly difficult ones.
But our journalistic knight in armor will not come down from his white horse long enough to deal with them. Until he does, he will not have dealt honestly with today's problem. Through his own fault, he will have left his own good faith exposed to doubt and challenge. He promised to regard the issue as simply constitutional, not religious. But those who respect the Constitution do not oversimplify the problem of its interpretation with reckless, unscientific; unhistorical abandon. And those who do so oversimplify are being swayed by extraneous considerations. To put it bluntly, I think that for Dr. Morrison the issue is religious.
I have so far considered only Dr. Morrison's method. It remains to consider the content of his interpretation, to see if, from the juridical standpoint, it is intellectually respectable.
Dr. Morrison and the First Amendment: II
John Courtney Murray
I have said something previously about the method and tendency of Dr. Charles Clayton Morrison's interpretation of the First Amendment (AMERICA, March 6); here I propose to examine the content of the interpretation.
Dr. Morrison begins by stating that the First Amendment "had in mind" to exclude union of Church and State: "The founding fathers were determined that this system should not be taken over by the, democratic republic they were engaged in setting up." Our distinguished historian begins, therefore, by ignoring the fact that the First Amendment was the act of the sovereign States (not of the First Congress, much less of the "founding fathers"), and that our democratic republic was already set up and functioning when it became law.
He goes on to say that the "root principle," and the first of the "two distinguishing features" of union of Church and State, "consisted in the interlocking of the institutional processes of Church and State by law which enabled the State to intervene in the affairs of the Church and vice versa." Our distinguished jurist goes on, there-fore, to mix up union of Church and State with confusion of Church and State. This misconception seems to be endemic in the American Protestant mind. Finally, we are informed that the second feature "inherent in" union of Church and State was a financial arrangement whereby "the Church derived its institutional or temporal support, in whole or in part, from taxes levied on all citizens." This, therefore, is the sort of thing that the First Amendment put an end toreciprocal intervention by Church and State, each in the affairs of the other, and financial support of the Church by the State. (Apparently, Dr. Morrison thinks it immediately put an end to these things within the States; this is, of course, false.) And on the basis of this learned piece of constitutional history, Dr. Morrison proposes his test of constitutionality: "If a particular measure involves an interlocking of the official functions or processes of the State with those of any church by the use of tax funds for the benefit of any church, or by the meshing of the diplomatic processes of the State with those of any church, or by any other entanglement of their respective functions, it is unconstitutional."
By this test he is able to damn: 1) "bus transportation, free textbooks, free lunches for parochial-school pupils"; 2) "the creation of an ambassadorship to the papal head of the Roman Catholic Church (this is damned "with emphasis"); 3) "released time for religious instruction in public-school buildings"; 4) "chaplaincies in the armed forces." In other writings, he also damns tax exemption for churches, church-affiliated schools, hospitals, orphanages, etc. The only significant thing he leaves undamned is "devotional Bible reading and prayer (usually the Lord's Prayer) in public schools"; this, I take it, is a concession to the still pathetically current, if somewhat moribund, Protestant idea that the public schools are really Liberal Protestant schools, wherein a non-sectarian Christianity is by law established, and subsidized.
One's immediate impression of this theory is that our Protestant journalist is going the secularist James Madison one better. Madison's personal view of the First Amendment (revealed in his recently published "Detached Memoranda") was that it forbade chaplaincies in the armed forces, and tax exemption of places of worship. The interesting thing is that Madison's personal views are not, and have never been, constitutional law. In fact, they have been explicitly rejected by a long line of valid governmental acts; it is now far too late to try to read them into the First Amendment. If the American people want to bar military and naval chaplaincies and tax-exemption laws, they may do so by new constitutional amendment; no appeal to the First Amendment will suffice. Moreover, not even James Madison, in his most secularizing moments, conceived the problem of State aid to church-affiliated schools as coming within the scope of the First Amendment. I shall speak of this later; I wanted simply at the outset to register the general impression that Dr. Morrison's theory, from the stand-point of Federal constitutional law, is revolutionary.
Let us now look at the theory itself, and try to untangle some of the multiple confusions that lurk beneath its surface simplicity. I shall not delay over the difference between union of Church and State (the Catholic theory) and confusion of Church, and State (the orthodox Protestant theory). Anyone will gladly let Dr. Morrison have it that the First Amendment forbade on the Federal level the confusion of Church and State that had been imported into some of the American colonies from Protestant England. The question is, does it forbid union of Church and State? At this point Dr. Morrison, who is not looking backward into constitutional history but forward into his private nightmare of a "Catholic-controlled" country, trips over the camel's nose and sprawls into a glorious muddle.
The camel, you remember, is chiefly offensive in that it is allegedly seeking to poke its aggressive nose into the public treasury by its request for inclusion of church-affiliated schools in certain programs of governmental aid to education. This is the cardinal thing that must at all costs be stopped, for religious reasons. (I leave aside the Taylor mission; every intelligent citizen knows that it has nothing to do with the First Amendment, though it does seem deeply to stir the "No Popery" complex latent in the Protestant unconscious.) The means chosen to block the normal processes of distributive justice in the educational field is to lay violent hands on the First Amendment, and use it for a purpose alien to its original intent. The art of the journalist supplants the science of jurisprudence, and by a series of interlocking fallacies creates the muddle.
The ultimate muddle consists in making a constitutional issue out of what is, under American law, simply an issue of legislative policy. And the first step towards its creation lies in ignoring the fact that the First Amendment was the act of the States, and that in ratifying it the States certainly did not have in mind to settle, one way or the other, either on the Federal or on the State level, the problem of governmental aid to education. They did indeed effect separation of Church and State, that is, they blocked any church from acquiring in national law the privileged status of a State Church, whose officers would have special civil standing (as the Archbishop of Canterbury has in England), or whose faith would have special civil recognition (as Lutheranism has in Sweden, where its profession is required for civil and academic posts), or whose laws and discipline would be in a special way norms for civil legislation (as in Spain. where Catholic marriage legislation is the norm for civil laws). Moreover, in outlawing a national established church, the States retained to themselves and their sovereign peoples the liberty to settle, by the political process, the problem of religious establishments within their own jurisdictions. And historically they exercised this liberty. Now, however, in consequence of the development of Federal constitutional law, this liberty no longer exists; it is annulled by the application of the First Amendment to the States via the Fourteenth; the U.S. citizen now has the right to Federal judicial protection against a State "establishment of religion" in the native sense of the First Amendment, as described.
However, the special problem of the relations between governmentFederal and Stateand education conducted under religious auspices, which was originally left to the area of legislative policy, still remains in that area. The "establishment" clause never was, and is not now, relevant to its consideration. This fact should be recognized by anyone not obsessed with camel's noses, or pet theories of national unity and the public school as its creator, etc. Consider, for instance, that for generations after the ratification of the First Amendment the Federal Government aided religious schools, and still does so. Consider, too, that the States have traditionally considered themselves bound in this matter only by their own laws, freely adopted through the medium of the political process. Consider, finally, the crucial pointthat even the new doctrine whereby the First Amendment is transmitted to the States via the Fourteenth has not altered, and cannot alter, this situation. The reason lies in the Fourteenth Amendment itself: one of the traditional "privileges and immunities of citizens of the United States" has been their privilege to manage their own educational system, and their immunity from Federal control (legislative or judicial) in the matter. The only relevant Federal constitutional issue in the case rises from the "free exercise" clause, not from the "establishment" clause.
Here is where the Morrison muddle becomes dangerous. He is anxious to have settled from the top down, as a constitutional issue, what the Constitution left for settlement from the bottom up, as an issue of legislative policy. In principle, he agrees with the Scottish Rite Masons and the secularist professional educators who would love to see written into Federal constitutional law the extraordinary dictum of Mr. Justice Rutledge in the Everson case, that a "wholly secular atmosphere" in our public schools is "a constitutional necessity." Not, mind you, the result of a social evolution, and the out-come of the political process within the States, which has culminated in the secularization of the public school by State constitution and statutethat is bad enough. But the complete secularization of the public school by rigid and radical dictate from nine (or possibly five) men in Washington, that would clap a constitutional straitjacket on a system of education whose boast has been its freedom and responsiveness to the needs and wishes of the local communitythat would be very much worse. It would destroy the very processes of educational liberty which the First Amendment was designed to protect. If there is to be talk of subverting the Constitution, let this manner of subversion, advocated by the doctrinaire absolutists in the matter of separation of Church and State, be carefully considered. Subversive doctrines are indeed abroad when the Supreme Court is urged to usurp legislative powers constitutionally reserved by the people to themselves. Such is the power to legislate with regard to the relations between government and education; this power is not restricted, either on the Federal or on the State level, by the "establishment" clause of the First Amendment.
But, our journalistic pleader insists, a constitutional issue is involved, for the "establishment" clause forbids the "interlocking of the official functions of the State with the official or institutional functions of any church"; therefore governmental aid to church-affiliated schools, in any form, is unconstitutional. To clear up the muddle latent beneath this fancy phraseology, let me say three things about this alleged test of constitutionality: first, it is dishonestly put forward; secondly, it rests on a fallacy, thirdly, it is in its wording meaningless.
It is dishonestly put forward. As it stands, the formula is generalized; actually, it covers Dr. Morrison's private, Protestant resentment against the "interlocking" of one single function of the stateits taxing powerwith the Catholic parochial school. But this is dishonest; a generalized formula should be given general application, as follows. "The all-inclusive function of the state," says Dr. Morrison, "is to make and administer law." Well, the State makes and administers compulsory-education laws, and by them it legally recognizes parochial schools as agencies wherein these laws may be obeyed. Surely, this is unconstitutional; for by such recognition the State interlocks its official law-making function with the "institutional functions" of the Catholic Church, the Church becomes an official educator for the State. Again, the State makes and administers educational ordinances, fixing curricular requirements and teacher-qualifications, giving accreditation, etc.; and these ordinances are applied in parochial schools. But here is another "interlocking," that makes such laws, as applied in parochial schools; unconstitutional. In other words, if the "interlocking" of the taxing function with the parochial-school process is unconstitutional, why are not the "interlockings" of other functions likewise unconstitutional? It is, I say, dishonest to distinguish; for the laws cited benefit the Church; without them it would be futile for the Church to run schools.
But perhaps Dr. Morrison is not dishonest. Perhaps in his holy alliance with his Masonic and secularist educator friends, he goes right down the line with them. Perhaps, like them, he has a camel's-nose strategy of his own. Perhaps his ultimate goal, like theirs, is a monolithic, completely secularized, government-controlled "American" educational system. This, of course, would be at the moment slightly too totalitarian for the American people. Hence the idea is to fracture the constitutional principle of the freedom of the American people to legislate on the relations between government and education, at point after point, where the fractures may be disguised as "separation of Church and State," until the final happy result is achieved. The agencies of this revolution will be our judicial hierarchs, the Supreme Court, acting under the political pressure generated, out of anti-Catholic feeling and secularist dogma, by "Protestants and Other Americans United for Separation of Church and State." The first step will be to secure a reversal of the Everson decision and of the Chance decision; then the School-Lunch Act can be declared unconstitutional, as somehow advancing the institutional processes of the Catholic Church. Thus it can be gradually written into Federal constitutional law that the parochial school has no right to receive aid. And the way will be clear to the next stepto secure a reversal of the Pierce decision. That will be the triumph; for it will establish that the parochial school has no right, in constitutional law, even to exist.
Dr. Morrison's "interlocking" test, logically applied, is an apt instrument for carrying out this strategy. Perhaps he is not dishonest. Certainly his Masonic friends are not dishonest; their organ, the New Age, has come out clearly for a reversal of the Pierce decision, as the way to the goal: "the American public school, non-partisan, non-sectarian, efficient, democratic, for all the children of all the people." I dare say the New Age is ironically delighted to have an ally in the Christian Century.
I come now to my second point, that Dr. Morrison's test rests on a fallacy. It is the same fallacy to which Mr. Justice Jackson succumbed in his dissent in the Everson case. It consists in the assumption that a church affiliated school has the same relation to government as the church to which it is affiliated. This assumption leads to the conclusion that, as government may not give financial aid to the church, so it may not give financial aid to the school. But the fallacy of the assumption is obvious, if one pauses to consider a simple fact. Government has no jurisdiction over the church; but it has jurisdiction over the school. The First Amendment prohibits government from using its powers in the area of "religion" (religious belief, worship, practice); it does not prohibit it from using its powers in the area of education, to the extent of its jurisdiction in that area This fact was very clear to the States that ratified the First Amendment; it must be kept clear. It is the essential juridical principle that outlaws the constitutional issue from this whole vexing problem.
The State has jurisdiction over educationa limited jurisdiction, because the State is not properly an "educator," but a genuine jurisdiction, because the State is the promoter and supervisor of education in so far as it relates to the general welfare. Now, the State can use its powers to support its own interests in any field where it has jurisdiction, and to the extent of its jurisdiction. Consider, then, the application of this principle. What goes on in church-affiliated schools is education; the State acknowledges the fact when it accepts attendance at these schools as compliance with compulsory-education laws. These schools, therefore, are within the legitimate field of the State's jurisdiction, and the State may use its powers to support its own interests in them. As a matter of fact, it does use its supervisory powers in. their regard; and by the same title it may use its taxing powers. (Actually, use of the supervisory power involves some expenditure of tax funds; if this is unconstitutional, the Masons are well on their way.)
I have, above, italicized the word "may"; for I want simply to dispose of the constitutional issue. If aid to church-affiliated schools is to be denied, let the aid itself be denied, but not the power of the State to grant it. Let, the question be put on its proper footinglegislative expediency, not constitutional law. Let it be said that this aid is financially impossible, politically unwise, educationally unsound, socially undesirablewhat you will. But let it not be said that it is unconstitutional. Appeal, if you like, to anti-Catholic prejudice, but not to the First Amendment. I have read a lot on the subject, and have never seen a convincing argument based on the First Amendment. Mr. Justice Rutledge's dissent in the Everson case was the best effort; and it is not constitutional interpretation but a plea for new legislation. Legislation with regard to the relations of government to education has changed a great deal in the course of American history; and it may well change some more, as secularist forces gain in power. But at least it should be changed in the future as it was changed in the pastthrough the orderly political process, not through judicial dogmatizing on the meaning of the First Amendment.
This, I take it, is the basic Catholic position in this whole matter. We should not so much mind, if the State were to say: "We have no money to aid your parochial schools." But if it says, "You have no constitutional right to aid," we object. Our basic contention is not for money; it is for juridical status. Our assertion that all schools rendering a public service are equal before the law, regardless of their religious or non-religious characteris it, or is it not, simply a prolongation of the assertion that all citizens are equal before the law, and equal in their access to the benefits of government, regardless of their religion or lack of it? Again our contention is not for privilege or power; it is for the orderly processes prescribed by the Constitution. And since rights and constitutional law are involved, we are I, think, prepared to be tenaciousthe more so in that this is not for us simply a "sectarian" issue. Our position is quite simply American and it looks to the freedom of American education and the freedom of the American people to organize their education.
My last point may be briefly madethe formula, "interlocking relationship," is meaningless. Obviously, in the field of education both State and Church function; each has an interest in the child and a certain jurisdiction over the childin the one case as a citizen, in the other as a child of God. But as long as the State confines itself to its proper functions of support and supervision of the child's education as a citizen, its functions remain separate .from those of the Church; their jurisdictions remain divided and their interests distinct. "Interlocking relationship" does not describe this situation; each operates freely, independently, disengaged from the other, in its own orbit. There is, if you will, simultaneous functioning in a field of common interest. But if you are going to forbid this, on grounds of separation of Church and State, you must forbid the child to be simultaneously a citizen and a child of God. You must bid him separate himself either from the Church (in a public school) or from the State (in a parochial school). Is this what the First Amendment means?
Perhaps it will one day be distorted to this meaning. I think it quite probable that aid to church-affiliated schools may one day be declared unconstitutional. The legal ground for this revolutionary development was pre-pared in the Everson case, when all nine Justices implicitly accepted the unproved and self-contradictory assumption that a church-affiliated school has the identical status in law as the church to which it is affiliated; it has the negative freedom of untouchability. Moreover, the cultural ground for this development has long been laid; a century of progressive secularization of American society is now bearing fruit in the progressive secularization of our institutions. Finally, there is a group of men like Dr. Morrison who are seemingly willing to sell the pass. Hence the day is probably coming when a school will cease to be a school and become, in law, a church. But on that day law will have ceased to be reason and have become will. One need not look forward to it as a blessed day for a democracy that boasts of being rational.