Establishment Clause, McCollum, and Crazy Ex-Girlfriend

jury selection
Establishment Clause Wall
Although the Establishment Clause does not mention a wall of separation, Justice Hugo Black added it to our lexicon by quoting Thomas Jefferson in the Everson case.

My Country – The Establishment Clause

On March 8, 1948, McCollum v. Board of Education held that the use of public school facilities by religious organizations to give religious instruction to school children violated the Establishment Clause of the First Amendment.

What is the Establishment Clause?

Our country has had many arguments about the separation of church and state. The debate over the “wall of separation” goes back to Thomas Jefferson, who came up with the phrase. The First Amendment states

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Although the Court has developed many tests, the Everson case and the words of Justice Hugo Black continue to frame the argument.

The establishment of religion clause means at least this: Neither a state nor the federal government may set up a church. Neither can pass laws that aid one religion, aid all religions, or prefer one religion over another. [n]either can force a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. Neither a state or the federal government may, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.

Released Time Programs

At issue in McCollum, many felt that public schools filled much of a student’s day and left no time for religious instruction. Beginning in Gary, Indiana, in 1914, released time programs allowed students to be released from school for religious instruction at a local church.

The case at hand involved Champaign, Illinois. Parents notifed their public school if they wanted religious instruction for their child. The public school then provided them a classroom. The teachers were selected and paid by the church as long as the superintendent approved. If a child was not enrolled in the program, they got a study hall or regular class scheduled.

McCollum v. Board of Education

Justice Hugo Black wrote the majority opinion and saddled the opinion on the Everson quote. He notes that in this instance they are using public buildings for religious purposes. And notes that this is not a separation of church and state.

Justice Frankfurter’s Concurrence

Justice Frankfurter wrote a concurring opinion with the other justices who dissented in Everson. They argued that in regards to the released time program, “Illinois has here authorized the commingling of sectarian with secular instruction in the public schools.” Justice Frankfurter makes a strong argument for why the public school system needs to be free of religious entanglements.

The secular public school did not imply indifference to the basic role of religion in the life of the people, nor rejection of religious education as a means of fostering it. The claims of religion were not minimized by refusing to make the public schools agencies for their assertion. The nonsectarian or secular public school was the means of reconciling freedom in general with religious freedom.

The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously free from entanglement in the strife of sects.

What Does That Mean

In other words, we created a system to teach about our secular roots as a nation. We built them to create better citizens with the Establishment Clause. But religious beliefs can harm that free atmosphere due to the bitterness that can exist between religious groups. To promote cohesion as Americans, our public schools do not need to reject religion, but they need to ensure that the religious fights stay outside. Frankfurter also goes deep into the role of parochial school systems and Sunday school to show how religious education needs are met. And truly notes that the education system of a released time program, in itself, may not be counter to the First Amendment, but its presence in the schoolhouse is. That case appears a few years later with Zorach v. Clauson.

Justice Reed’s Dissent

Justice Reed’s main concern is with the breadth of Justice Black’s opinion and how little it answers any questions about the Establishment Clause. Reed worries that future Establishment Clause cases have no where to look with this ruling as no rationales truly exist. He also notes that government facilities have worked with religious entities since our founding. He points to government chaplains and compulsory religious attendance at military institutions. “Whatever may be the wisdom of the arrangement as to the use of the school buildings made with the Champaign Council of Religious Education, it is clear to me that past practice shows such cooperation between the schools and a nonecclesiastical body is not forbidden by the First Amendment.”

Ironically, these distinctions continue to be the center of the arguments for the Establishment Clause.

Zorach v. Clauson

Several years later, the case Justice Frankfurter posed showed up at the Supreme Court. New York City began a program where public school students left class for certain periods to participate in religious instruction elsewhere. Justice Douglas wrote the majority opinion (with Justice Black now in dissent) upholding this structure.

In the McCollum case, the classrooms were used for religious instruction and the force of the public school was used to promote that instruction. Here, as we have said, the public schools do no more than accommodate their schedules to a program of outside religious instruction. We follow the McCollum case. But we cannot expand it to cover the present released time program unless separation of Church and State means that public institutions can make no adjustments of their schedules to accommodate the religious needs of the people. We cannot read into the Bill of Rights such a philosophy of hostility to religion.

Zorach Dissents

Additionally, Justice Black dissented by stating that the wall of separation of church and state needs to be kept tall. He saw no difference between what buildings were used in regards to the Establishment Clause. Black focused on the compulsory time commitment during school hours and feared what this meant for non-believers.

State help to religion injects political and party prejudices into a holy field. It too often substitutes force for prayer, hate for love, and persecution for persuasion. Government should not be allowed, under cover of the soft euphemism of “cooperation,” to steal into the sacred area of religious choice.

Justice Frankfurter also dissented. Like Black, his concern remained the time commitment. He felt that if a student was meant to be at public school and the school is now sending them to a compulsory religious environment, that time for non-believers does not allow them to explore anything they want. Frankfurter seems to believe that if this “released time” was for more than religious education, then this program would not be counter to the Establishment Clause. But it would counter the compulsory nature of public school.

Daily Briefing

  • Republicans underestimated the complexity of health care. They underestimated the anger with their base for any health care reform.
  • The director of the OMB said that getting American insurance is not really the point. Thanks man who we pay his insurance.
  • Who does the Trump Administration hire? Breitbart writers, lobbyists, and people who worked on the campaign. Only the third one would make his voters happy.
  • “Like its predecessor, the revised order provides no rationale for barring people from Syria, Iran, Libya, Somalia, Sudan, and Yemen, the six Muslim-majority nations still subject to the travel ban.” Instead, we continue to pretend racism does not exist.
  • No one wants to have to defend their boss, especially when we all know he has a short fuse.
  • Grace and decorum has nothing to do with Donald Trump. Not sure why President Obama ever gave him any respect.
  • Read this heartbreaking story of a fallen soldier returning home.
  • Redistricting needs to be automated. We do not need people drawing our boundary lines anymore.
  • I watched a lot of Turner Classic Movies in college. Robert Osborne lived in my dorm. I will miss his wonderful stories.

Daily Distraction

I finally finished the second season of Crazy Ex-Girlfriend. For those who have never seen the show, go watch both seasons on Netflix. The first season starts with Rebecca Bunch, a high profile lawyer in New York, running into her summer camp crush. And she decided to move across the country to try to woo him. Of course, Rebecca does not seem normal. But she starts working at a small firm and begins to make friends. And constantly stalks Josh Chan, her crush.

I do not want to spoil the show at this point because you need to go watch it. But I do not believe that a show demonstrates the trauma of the current generation exploring life in a digital world. Mental health also becomes central to the character. And I think back to a recent article I read about gay culture and cognitive behavior therapy. We all need therapy and the way that Rachel Bloom portrays Rebecca as not cooperating is perfect.

I do miss Santino Fontana as Greg very much. Greg’s alcoholism storyline also added a sense of realism to the show. Because the one part I have not noted: they have many musical numbers. And part of that becomes clear in the season finale. In conclusion, go try out the show. Most people believe that there is not enough levity on television or the world. This show provides a lot of humor, comedy, and fun. And a lot of it surrounds interesting characters and wonderful songs.

One Sentence Story

The small package laying on the porch next to the front door could contain almost anything, but as usual, it contained two comic books.

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