The U.S. Supreme Court and Religious Freedom

Date01 April 1949
Published date01 April 1949
DOIhttp://doi.org/10.1111/j.1468-2230.1949.tb00118.x
THE
1T.S.
SUPREME
COURT
AND
RELIGIOUS
FBEEDORl
THE
First Amendment to the
U.S.
Constitution guarantees free-
dom of religion from interference by the Federal Government. The
Fourteenth Amendment extends this freedom by prohibiting the
separate States from abridging the freedom of citizenss of the
United States. This extension to cover the area of State action was
not explicitly made by the Supreme Court.
It
has been assumed.'
Thus neither the Federal Government nor the States may penalise
or
subsidise religion and in States with compulsory education lawr
parents have a right to educate their children at their own expense,
in
private
or
religious scho01s.~
The State must assume an attitude of neutrality between religion
and non-religion. But neutral action must not be susceptible to
interpretation as anti-religious action. The position
is
not the
simple one
of
remaining neutral between the equal forces of militant
religion and militant anti-religion.
It
is the difficult one
of
remain-
ing neutral between organised forces of religion backed by
unorganised social forces of
a
generally pro-religious character, and
the unpopular minority in society who feel that especial sympathy
for
religion will subvert the whole lay spirit of the American
Constitution. The Supreme Court must maintain the 'wall
of
separation between church and state
'
even
if
in deciding cases that
wall become, in Justice Jackson's phrase, 'as winding as the
famous serpentine wall designed
by
Mr.
Jefferson for the university
he founded
'.O
In the last decade the small sect known as 'Jehovah's Wit-
nesses' has brought many cases to the court for decisions on the
rights
of
organised religion under the Constitution. The court has
been required to define the limits of State action under the
'
police
power
',
more specifically, the rights of popularly elected legislative
bodies to limit the area of freedom guaranteed by the First Amend-
ment. The cases cover a variety of civil liberties issues; sale
of
'Congress
shall
make no
law
respecting an establishment
of
religion
or
prohibiting the free exercise thereof;
or
abridging the freedom of speech.
or
the press;
or
the right of the people pefceably to assemble, and
lo
petition
the government
for
a
redress
of
grievanccs
.
1
1791.
a
1868.
Section
I.
8
Including, generally, resident aliens.
4
In
Gitloin
v.
New
York,
268
U.S.
652 (1925).
'
.
.
.
this case as~umes that
a
reaeonshle freedom
of
expression ie part of the !iberty which the States
are
forbidden
to
take
away
without due process of
law
.
Cushman,
R.
E.,
Leading
Constitutional
Derisions
(1937)
p.
85.
5
Pierce
v.
Society
of
Sisters,
268
U.3.
510 (1925).
6
Concurring in
McCnllam
V.
Rood
of
Edfccalion,
S.Ct. Law
Ed.
Adv.
opinions.
Volume
92,
No.
11,
p.
451
(March,
1948).
167
168
THE
MODERN LAW
REVIEW
Vot.
12
literature
;
solicitation of funds
;
ringing of doorbells and parades
;
as well as more fundamental issues concerning the collision
of
indi-
vidual consciences with the purposes of organised government. In
two recent cases, not involving the Witnesses, decisions have been
given
on
the use of public funds for religious
purpose^.^
It
helps but little in the understanding of these cases to describe
certain decisions as
'
liberal
',
others as
'
conservative
'.
In
a very
real sense, the whole court is liberal.
It
is probably the first
Supreme
Court
in modern times which does not lag behind Federal
or State legislators in its sympathetic understanding
of
the problems
of modern industrial society. But judicial liberalism is composed
of two parts.
A
belief
in
the long-term value of Justice Holmes'
concept
of
judicial
'
self-restraint
',
ably
'
expounded today by
Justice Frankfurter,O
and
a
belief that the
Bill
of
Rights must be
preserved in its literalness from the attacks of legislators. There is
an inevitable conflict between these two viewpoints, which in
nothing more than a reflection
of
the nature
of
the American
Con-
stitution. American constitutional democracy is based
on
the
inalienable civil liberties of the written constitution,
and
the elective
principle
in
government.
The 'sovereign people' cannot be
sovereign if certain subjects are outside their legislative ambit.'
This di!Xculty in interpretation
of
the Constitution
is
frequently
resolved by the use
of
the
'
clear and present danger
'.
doctrine
I*
where this is applicable. When danger to the State
is
not in
question the court
now
recognises, often reluctantly, the reality
o!
those powers which must be allowed
an
elected legislature in order
that it may perform the essential duties
of
government,"
or
put
into
operation a reform the main outlines
of
which do not conflict
with the spirit of the
Bill
of Right&" But
it
could be said, not
unfairly, that the court tends increasingly to eschew well-worn
constitutional theory and to apply itself to
a
consideration of the
social reasons and social effects involved in the legislation
it
examines. The
'
wisdom
'
of the statute is in fact under review.
In
such case#,
i.e.,
when the justice8 flnd themselves discussing what
are essentially matters of political theory and public policy the logic
of
decided cases is frequently an unwelcome and oft ignored
intrusion. They are more interested in the probable results.
7
Ecereon
and
McCollum.
injra.
*
Especially in
the
Gobitir
and
Barnctte
Cues,
injra.
*
See Justice Jsckson's opinion in
W.
Yo.
Board
oj
Education
v.
Barnctte.
319
U.S.
694 (1943).
10
Schenck
v.
United
Stater,
249
U.S.
47
(1919).
Abrams
v.
United
Stater,
960 U.S.
616 (1919).
11
Hirabayashi
v.
United
States,
320
U.S.
81 (1943).
Civil rights
of
American
citizena
of
Japenee: racial origin. See slso
'
The Supreme Court and
the
Capacity
to
Qovaru
.
Vincent.
M.
Barnett, Jr.
Political
Science
Quarterly.
September,
1948.
Rights
of
voluntary
associationr in the State.
11
Railway Mail Association
V.
Corri,
396
U.S.
88
(1946).

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