“Congress shall make no law respecting an establishment of religion.” That’s the Constitutional clause around which Stephen Mansfield’s book, Ten Tortured Words, revolves. Specifically, the author explores what this succinct first amendment prohibition meant to its creators and how, in 1947, it came to mean something the Founders never envisioned—a radical rejection of religious expression in the public square.
Mansfield’s analysis begins by describing a stridently secular revolution that venerated a scantily clad goddess of Reason, seized church property, and compelled priests to swear allegiance to the new regime. That revolution (much to the chagrin of secularists in the U.S.) wasn’t the American Revolution. It was, instead, the French Revolution—shortly before the Reign of Terror. American attitudes toward religion were quite different. In the colonies clergymen bolstered revolutionary resistance to England and constituted a “black regiment” that struck fear in the heart of George III. Accordingly, a decade later Congress's Northwest Ordinance of 1787 linked “religion, morality, and knowledge” to the establishment of schools that were needed for “good government” in the Ohio territory.
With this background, Mansfield considers first amendment church-state proposals that were put forward in the Congress of 1789—proposals whose words belie revisionist portraits of Founders intent on creating a purely secular state. Indeed, Mansfield notes that two days before the House of Representatives approved its final “establishment of religion” language, it enacted a statute to compensate chaplains. And the day after approving its wording, the House passed a resolution recommending “a day of public thanksgiving and prayer” to acknowledge “the many signal favors of Almighty God”—a resolution that President Washington eagerly accepted. In light of such evidence, Mansfield concludes that only the ignorant or intellectually dishonest could construe the first amendment words of these legislators as “a ban on government support for religion in general.”
The phrase that’s been superimposed over the Constitution’s establishment language is “separation of church and state”—or, more accurately, “a wall of separation between church and state.” These words, Mansfield observes, were part of a personal letter written twelve years after Congress debated the first amendment’s wording—and were penned by an individual, Thomas Jefferson, who was an ambassador in France when the debate was occurring. Moreover, Mansfield emphasizes, Jefferson never suggests in this letter to the Danbury Baptists of Connecticut that his political metaphor applied to the states or demanded a national government devoid of religious expression.
Besides signed legislation supporting Christian missionary efforts among America’s tribal peoples, there is more tangible evidence of President Jefferson’s church-state position—namely, his faithful attendance at the Christian worship services that were held in the Capitol building during his presidency. Indeed, Mansfield notes that Jefferson first attended those services (which continued regularly from 1795 to 1866) only two days after writing his “wall of separation” letter.
Why a single phrase from an obscure Presidential letter should become a prominent standard for Constitutional interpretation is the focus of Mansfield’s third chapter, the central figure of which is Alabama’s Hugo Black. Mansfield’s sketch of the future Supreme Court Justice begins in 1921 with Black’s successful defense of the Reverend Edwin Stephenson for killing a Catholic priest. (Stephenson was incensed because the priest had married the reverend’s daughter to a Spanish suitor.) During the trial Black played to his Klan-packed jury by portraying the Spaniard as a Negro. And less than a year after the trial, Black himself joined the KKK, a move he renounced two years before his successful senatorial campaign in 1926. Eleven years later the loyal New-Dealer was nominated by FDR to the Supreme Court.
Mansfield observes that Black’s Supreme Court opinions were initially so embarrassing that Justice Harlan Stone asked Harvard’s Felix Frankfurter to tutor the new Justice. Yet even after Black found “his stride,” grave inconsistencies (possibly related his racist past) plagued Black’s judicial performance. Nowhere are those inconsistencies more apparent than in Everson v. Board of Education, “the single case upon which the role of religion in American public life turns.”
Decided in 1947, Everson challenged a New Jersey law by which the state paid for student transportation to religious schools. Writing the majority opinion in this case, Black cited Jefferson’s letter to the Danbury Baptists and observed that the Constitution erects a “high and impregnable” wall between church and state—a wall that does not admit “the slightest breach.” Based on this unprecedented reading of the establishment clause, the obvious conclusion would have been that New Jersey could not provide transportation to religious schools.
Black, however, ended his opinion by contradicting the entire thrust of his judicial reasoning. New Jersey’s funding of transportation to religious schools, Black ruled, did not violate the “high and impregnable” standard just posited. One practical reason for this about-face was the vast number of monuments and instances of religious expression that would have to be revised, dismantled or suspended if Black followed the logic of his reasoning. As Mansfield observes summarily, “the ruling is almost incomprehensible.”
The logical step that Black declined to take in 1947, was taken over the next decades by courts that found public invocations, crèches on public property, and even schoolchildren praying out loud over meals violated the Constitutional prohibition against Congress establishing a national church. In 1985, Justice William Rehnquist in his Wallace v. Jaffree dissent, responded to the Court’s capricious application of the Everson standard. This opinion, often called “The Anti-Everson” is included in Mansfield’s extensive appendix of cited documents. Rehnquist concludes as follows: “The ‘wall of separation between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.”
Far from being abandoned, however, the Everson standard continues to spawn an army of litigants eager to employ Black’s metaphor to purge all traces of religious expression from public life. The foremost litigant in “Everson’s army” is the American Civil Liberties Union, an organization whose founder, Roger Baldwin, is discussed at some length by Mansfield. Not surprisingly, given the ideology of its founder, the ACLU’s goals in church-state litigation have more in common with the Soviet Constitution of 1947 (which actually calls for a separation of church and state) than with the aims of the Founding Fathers. Other members of Everson’s brigade that are highlighted by Mansfield include People for the American Way (founded by Hollywood producer and ACLU officer, Norman Lear), the Freedom From Religion Foundation, and the Southern Poverty Law Center.
Perversely, this secular army is regularly funded by taxpayers, thanks to the court’s bestowing public attorney status on litigants whose “rights” have been violated by public subsidies to Boy Scouts or by crosses employed as war memorials. Moreover, this “loser pay” arrangement, instituted to protect the civil rights of poor minorities, has become a mechanism by which the far-from-poor ACLU intimidates cash-strapped school districts and municipalities with the following dilemma: Either remove offending religious objects and practices or risk million-dollar litigation costs—both yours and ours. These rules of engagement, Mansfield notes, weight the law “in favor of secularism.”
In 1954, Senator Lyndon Johnson added a final legal burden to the free exercise of religion in the United States. That year the first-term Senator from Texas altered Internal Revenue Code language in order to deny tax-exempt status to organizations engaged in direct political activity. LBJ had in mind specific groups that opposed his reelection, but his 501 (c) (3) wording applied to all tax-exempt organizations—including churches. Based on this regulation, churches can now be stripped of their tax-exempt status for articulating their beliefs too explicitly in the political arena. As Mansfield illustrates, this law transforms both liberal and conservative religious groups into dissemblers and puts groups like Barry Lynn’s Americans United for the Separation of Church and State in charge of monitoring religious speech throughout the country.
Mansfield concludes his analysis by discussing Congressional proposals designed to lift the political restrictions now placed on religious speech and to restrict the federal courts from ruling on establishment clause cases. Sooner or later, the author suggests, the illegitimate and destructive wall that currently separates religion and politics—like the wall separating East and West Berlin—should fall, making possible “a nation that separates the institutions of religion and government but welcomes the riches of faith into the public square.”
Overall, Ten Tortured Words is a succinct tutorial on church-state jurisprudence and a handy resource for related documents. The book elucidates how the Court came, circuitously, to an understanding of the Constitution that is at odds with the history of the Republic and the intentions of the Founders. It also provides a moving example, in the persons of the Dorchester chaplains, of the way religion should influence public life.
In that tragic case, memorialized on windows at West Point and the Pentagon, four chaplains (two Protestant, one Catholic, and one Jewish) joined arms and together recited words of comfort from the three faiths to sailors who were struggling to survive a torpedo attack in the North Atlantic. The four continued their ecumenical ministry for twenty-seven minutes until the doomed ship “slipped beneath the waves.” “Private First Class William Bednar . . . later said, ‘Their voices were the only thing that kept me going.’”
Such heroic episodes, enshrined from the nation’s past, will only be part of its future if Mansfield’s “tear down this wall” legal message is taken to heart by the country and its leaders.