"Racial and Religious Democracy"

Stanford Law Review Volume 72 June 2020 ARTICLE “Racial and Religious Democracy”: Identity and Equality in Midcentury Courts Elizabeth D. Katz* Abstract. In our current political moment, discrimination against minority racial and religious groups routinely makes headlines. Though some press coverage of these occurrences acknowledges parallels and links between racial and religious prejudices, these intersections remain undertheorized in legal and historical scholarship. Because scholars typically study race and religion separately, they have overlooked the legal significance of how race and religion coexist in both perpetrators and victims of discrimination. By contrast, this Article demonstrates that the intersection of racial and religious identities has meaningfully influenced legal and political efforts to achieve equality. Drawing from extensive archival research, this Article unearths forgotten yet formative connections between racial and religious antidiscrimination efforts, at the local through federal levels, from the 1930s through the 1950s. To examine these links, this account * Associate Professor of Law, Washington University in St. Louis. For helpful comments and conversations, I thank Gregory Ablavsky, Susan Appleton, Tomiko Brown-Nagin, Kevin Collins, Nancy F. Cott, Danielle D’Onfro, Daniel Epps, Edwin M. Epstein, Trudy Festinger, Estelle B. Freedman, Trevor Gardner, Smita Ghosh, Robert W. Gordon, David A. Hollinger, Darren Hutchinson, John Inazu, Howard H. Kaufman, Zachary D. Kaufman, Amalia D. Kessler, Pauline Kim, Michael Klarman, David Lieberman, Kenneth W. Mack, Wilson Parker, Kyle Rozema, Debra Bradley Ruder, Rachel Sachs, Mark Storslee, Brian Tamanaha, Steve Tulin, Michael Wald, and participants in the Washington University in St. Louis School of Law Faculty Workshop, the Stanford Law and History Workshop, the Berkeley Law and History Workshop, Stanford Law School’s Fellows Workshop, the Stanford University Department of History’s U.S. History Workshop, the Southeastern Law School’s Junior/Senior Faculty Workshop, the American Constitution Society’s Junior Scholars Public Law Workshop, and panels at the annual meetings of the American Society for Legal History and the Law and Society Association. Research for this Article was generously supported by the Stanford Center for Law and History, the American Society for Legal History’s William Nelson Cromwell Foundation Fellowship, and Harvard University’s Center for American Political Studies Dissertation Fellowship and Seed Grant. Finally, I am extremely grateful to Sam Lazerwitz, Ethan Amaker, and the other editors of the Stanford Law Review for their thoughtful suggestions and careful editing. 1467 “Racial and Religious Democracy” 72 STAN. L. REV. 1467 (2020) centers on the Domestic Relations Court of the City of New York, an unusually influential and high-profile trial court. In the 1930s, the Domestic Relations Court welcomed the most diverse bench ever assembled in the United States by that time (including women and men; blacks and whites; and Protestants, Catholics, and Jews), a development celebrated as bolstering American democracy and countering Nazi bigotry abroad. Several judges held leadership positions in the National Association for the Advancement of Colored People and the American Jewish Congress, pathbreaking civil rights organizations with legal arms headquartered in New York City. The city’s family court served as a testing ground for identity-related legal arguments that later rose to the national level because of its judges’ views and the fact that it merged two antidiscrimination focal points: public institutions’ treatment of children and the application of fair employment practices. Longstanding policies required the court to match probation officers to juvenile delinquents by race and religion, an approach one prominent commenter argued should be eliminated in order to promote “racial and religious democracy.” By the 1940s, a coalition of black and Jewish judges regarded both types of identity matching as unlawful segregation. These judges successfully fought against their white Christian colleagues to end race matching, but their challenge to religion matching proved more difficult, both legally and politically. While the opponents of religion matching perceived the practice to be discriminatory and a violation of the separation of church and state, its supporters saw it as a lawful and beneficial protection for religious identity. Foreshadowing, connecting, and continuing through canonical Supreme Court Establishment Clause and civil rights cases—such as McCollum v. Board of Education and Brown v. Board of Education—the family court judges and their allies both anticipated and influenced doctrine and norms that remain with us today. This history complicates and raises important questions about ongoing issues ranging from the significance of judges’ racial and religious backgrounds to the scope of religious groups’ involvement in child welfare services and penal contexts. This Article also calls for additional studies that free racial civil rights and First Amendment religion scholarship from their current silos in order to better understand the concurrent development of these crucial and contested areas of law. 1468 “Racial and Religious Democracy” 72 STAN. L. REV. 1467 (2020) Table of Contents Introduction ......................................................................................................................................................... 1470 I. Mayor La Guardia’s “Democratic” Family Court Bench ................................................... 1482 A. A “Fusion” Mayor and the Symbolism of Public Employment ........................... 1482 B. Diverse Judges for the “Democratic Way of Life” ...................................................... 1490 II. Religious Politics in the New Domestic Relations Court ................................................. 1508 A. The Racial and Religious Segregation of Children .................................................... 1509 B. The Domestic Relations Court’s “Baptism by Religious Fire” ............................. 1511 C. Religious Identity, Judicial Roles, and Court Staffing .............................................. 1515 III. World War II and the Fight for Racial and Religious Civil Rights ............................ 1517 A. Religious Politics and U.S. Foreign Policy ...................................................................... 1518 B. Racial and Religious Rights and Protections ................................................................. 1523 IV. Identity-Matching Conflicts at Midcentury ............................................................................ 1536 A. Religion Matching During World War II...................................................................... 1537 B. Race Matching as “Jim Crow” Discrimination ............................................................. 1541 C. Litigating the Psychology of Racial and Religious Segregation ......................... 1546 D. The Cold War Divergence of Racial and Religious Civil Rights ...................... 1554 E. The Failure of the Religion-Blind Argument ............................................................... 1561 Conclusion ............................................................................................................................................................. 1570 Appendix ................................................................................................................................................................ 1575 1469 “Racial and Religious Democracy” 72 STAN. L. REV. 1467 (2020) Introduction In December 1937, New York City Domestic Relations Court Justice Herbert A. O’Brien spoke angrily to a packed breakfast meeting of 1,100 Catholic social workers employed by the city.1 After exclaiming that he could “strangle” Mayor Fiorello La Guardia for denigrating some of the court’s work, Justice O’Brien moved on to his more pressing concern.2 A vocal proponent of Catholic causes, O’Brien implored his listeners to demand that the mayor appoint additional Catholic judges. “I’ve respected the policies of Protestant and Jewish justices,” he explained by way of justification, “but I’ve been unable to get respect for Catholic policies.”3 O’Brien disclosed that a Jewish judge had attempted to persuade him “that no man is appointed as a ‘Jewish justice,’ a ‘Catholic justice’ or a justice of any other sect.”4 Still, O’Brien—whom the mayor had selected to fill a spot vacated by another Catholic5—insisted he was “appointed to represent the great Catholic population in this city.”6 The justices’ confidential meeting minutes reveal that O’Brien’s outburst arose from a disagreement over the importance of the religious affiliations of court staff who interacted with children.7 In the following decades, the salience of identity in the court’s work continued to divide the justices, who constituted the most diverse bench ever assembled in the United States by that time.8 This Article situates religion-related politics and legal reform efforts within the better-known history of the movement for race-based civil rights. Religious affiliation was a powerful facet of identity in the mid-twentieth century, a fact sometimes obscured by attentiveness to race. In the influential and diverse legal community of New York City, the intersection of racial and religious identity shaped alliances, legal arguments, and outcomes. New York City housed the headquarters

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