Denial of Equal Rights to Religious Minorities and Non-Believers in The United States
B. H. HARTOGENSIS
Yale Law Journal, vol. 39, pp. 659-681 (1930)
| To hear most secularists, American education had three stages: (1) Pre-1776 schools taught Greco-Roman classicism; (2) after the Constitution Catholics and Protestants tried to get their own versions of the Bible in public schools, but caused so much strife that the good people of America kept our schools religion-free. (3) Not until the Cold War did anti-communists prevail in getting religion in schools, but our trusty Soopreme Court struck those efforts down. This article shows that schools were so pervasively Christian as to make Christianity "the 'national religion' as a matter of law." |
| A consistent Christian would not put a gun to his neighbor's head and force her to attend a school that teaches a religion other than her own, any more than he would require her to attend a church that teaches a religion other than her own. A consistent Christian believes in the "separation of school and state." |
That Christianity is the "national religion" as a matter of law, except where altered by state constitution or statute, is set forth in a straightforward way by many recent opinions referring to religious teaching and devotional exercises in public schools.[91] In some cases surprise is expressed that any others than believing Christians are to be considered at all; and in a few cases Jews and non-conformists are deliberately told that they have no legal rights in their religion, and that whatever remedies are given for differences in sectarianism, they refer to doctrinal and dogmatic differences between the various Christian sects only. So it has been held that the constitutions of the several states were not intended to apply to members of other religions in granting freedom from support of the Christian religion by the state; but they were more particularly intended to apply to sects of the "common national religion."[92]
In connection with sectarianism in the public schools there is arising a great body of law, much of it carefully annotated and reviewed. There is apparent confusion in these conflicting opinions; many are not carefully considered and are written for "local consideration." Many pretend to, but do not, actually follow federal construction and the leadership and modern outlook in other states, nor do many consider opinions expressly overruled; they as often cite obiter dicta as fixed law.
The extremes of bigotry appear in the attempt to have Bible readings in public schools by teachers wearing the garb of nuns,[93] and again in the compelling of public school children of objecting Catholic parents to attend the reading of a King James Version and an Episcopalian version of the Lord’s Prayer at devotional exercises in the public schools.[94] There was an in injection of humor into one of these hate-promoting cases by a Louisiana court, which threw objecting Catholics out, but sustained a verdict in favor of Jews, both of whom had protested the reading of the New Testament in the schools.[95] Consider in this connection a decision which allows part of school time to, be taken by school children for religious instruction outside of the school building.[96]
| It is not "religion" so much as it is ecclesiastical organizations which sway men from reason. Christianity leads to the Cross; ecclesiasticism leads to political power. |
| In sharp contrast to the author of this article, the Founding Fathers believed "that Bible reading should be for the purpose of developing either a religious or a Christian character in the pupils." |
It is in religious differences that men’s passions sway them most from their usual reasoning, ofttimes with the widest divergence as to the implications of the meaning of common words in general use. To many liberals it seems inexplicable that under the guarantee of "religious freedom" there can possibly be any such deference to one religious organization and to persons avowing faith therein. "Religious freedom" to the liberal means the obligation to assure to all ease of conscience and the fullest right to worship (where such does not conflict with health or public morals [whose morals? --kc]), without priority or privilege to any one. He would even deny, for instance, that Bible reading should be for the purpose of developing either a religious or a Christian character in the pupils, yet this idea is put forth by several courts of last resort. With the present acrimonious discussion of the exclusive title to the word "Christian" going on between various sects, it would be difficult to find an agreement or a judicial finding as to who were embraced in this term. But apart from this, many zealous Christians even insist that there is no wrong in trying to instill in children a religious doctrine diverse from what their parents wish to have them taught. Still it should not be tried in institutions supported by general taxation.
| In the post-Columbine era, even Jews have recognized the need for the Bible in public schools. |
Thus the reading of the Bible and repeating of the Lord’s Prayer, especially with allusion to Christ, even without comment at the opening of school exercises "becomes necessarily devotional and therefore offensive to certain taxpayers."[97] Jews in self defence against proselyting [sic] of their children object to any reading of the Bible --they the very "people of the Book." Religious freedom requires that education on that subject rest exclusively in the churches or individual homes, where all are free to adopt or reject any belief or faith according to the dictates of conscience. Decisions asserting that rights as Christians are not available to non-believers even as tax payers are especially invidious; thus in Georgia:
"The Jew may complain to the Court as a taxpayer, just exactly when, and only when a Christian may complain as a taxpayer, i.e., when the Legislature authorizes such reading of the Bible or such instruction in the Christian religion in the public schools, as gives one Christian sect a preference over others."[98]
| Catholics are no longer so dogmatically tied to the Douay version. |
| The Abington Court (1963),
which removed the Bible from public schools (and the Lord's Prayer), admitted: "Participation
in the opening exercises, as directed by the statute, is voluntary. The student reading
the verses from the Bible may select the passages and read from any version he chooses . .
. . During the period in which the exercises have been conducted the King James, the
Douay and the Revised Standard versions of the Bible have been used, as well as the Jewish
Holy Scriptures." |
Yet again as to the fifty differences between the Douai [sic] Version of the Bible and the King James version, and the important doctrinal emphasis laid by Catholics on certain passages in the former, omitted or; as alleged, mistranslated this is not a matter for consideration of other than ecclesiastical courts, which do not exist as part of our system of jurisprudence.[99] Roman Catholic parents are offended at the urgence put upon their children to read the Authorized Version, and a their being compelled to hear it read. On the other hand to us the Douai Bible for a like purpose is to the opposite side unthinkable.
The only hope is that sooner or later the question will be settled for all time by the adoption in each state of an aptly worded constitution. The choice here is between such constitutions as that of Mississippi requiring Bible reading in the schools, and of Connecticut, New Hampshire, Vermont, and Massachusetts, giving recognition by name to Christian sects who may teach Christian tenets in public institutions, on the one hand; over against such broader views as that of the constitutions of Louisiana and Ohio requiring the General Assembly to pass suitable laws to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, or that of Illinois, where every person has a natural right to worship God according to the dictates of his conscience. So the free exercise and enjoyment of religious profession and worship without discrimination is provided for in Kentucky and Indiana; and in Kansas no preference to any creed, religious society or mode of worship is set up. Religious freedom is more surely encouraged by the constitutional provisions of Idaho, where no sectarian or religious tenets or doctrine shall ever be taught in the public schools and no books, tracts or documents denominational in character shall ever be used or introduced in any school, than by the constitutional prescription of Mississippi that ‘freedom of conscience hereby secured shall not be construed to exclude the Holy Bible from use in any public school of the State."
The religious controversy being waged daily in a hundred places throughout the country on this narrow question of sectarian instruction in public schools was surpassed in zeal, spleen and the ending of neighborly good will, only by the presidential fight of 1928 into which religious differences were allowed to enter. And it is a fight for all minorities, with the Jews joining hands with atheists and disbelievers. The history of religious conflicts, always most cruel and protracted (as witness the Thirty Years, War) does not permit one to indulge the hope that there will be a slackening of religious zeal.[100]
| The author here calls for "constitutional amendments" because the First Amendment was not intended by its Framers to exclude the Bible from public schools. |
Veritas vos liberabit. It is certain that the people in every state must be fully enlightened as to these religious proscriptions, by the fullest public discussion, so that a body of interpretive law may be produced. Then constitutional amendments will follow apace until non-conformists, disbelievers, and religious minorities generally, will have succeeded in procuring recognition of their rightful demands for equal rights before the law.
[91] Cf. State v. Weedman, 226 N. W. 348 (5. D. 1929) (Sherwood, J., dissenting). The more liberal view appears in People v. Board of Education, 245 Ill..334, 92 N. E. 251 (1910); and State v. Sheve, 65 Neb. 853, 91 N. W. 846 (1902).
[92] Wilkerson v. City of Rome, 152 Ga. 752, 110 5. E. 895 (1922), disapproving of People v. Board of Education, supra note 91.
[93] Knowlton v. Raumbover, 182 Iowa 691, 166 N. W. 202 (1918).
[94] State v. Weedman, supra note 91. Cf. Stevenson v. Hanyon, 7 Pa. Dist. 585, 590 (1898): "The suggestion that the Bible in either version is a sectarian book borders on sacrilege."
[95] Herold v. School Directors, 136 La. 1034, 68 So. 116 (1915).
[96] People v. Graves, 245 N. Y. 195, 156 N. E. 663 (1929).
[97] State v. Weedman, supra note 91.
[98] See Wilkerson v. City of Rome, supra note 92, at 799, 110 5. E. at 904, quoting from Story. Contra: People v. Board of Education, supra note 91.
[99] Cf. State v. Sheve, supra note 91.
[100] An increasing amount of litigation of the question of sectarian instruction in schools appears in the reports. See summaries in Notes (1920) 5 A. L. R. 866; (1922) 20 A. L. R. 1351; (1924) 31 A. L. R. 1125. Also see Stephens, op. cit. supra note 14. On the general constitutional development of religious liberty, see Reynolds v. United States, 98 U. S. 145 (1878), in which Mormonism was discussed. Cf. also Pierce v. Soc. Sisters of Holy Name, 268 U. S. 510, 45 Sup. Ct. 571 (1925), in which a statute requiring compulsory attendance at public schools was held unconstitutional.
|
Vine & Fig Tree
12314 Palm Dr. #107
Desert Hot Springs, CA 92240
[e-mail to V&FT]
[V&FT Home Page]