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Common School Religion: Judicial Narratives in a Protestant Empire

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Common School Religion: Judicial Narratives in a Protestant Empire COMMON SCHOOL RELIGION: JUDICIAL NARRATIVES IN A PROTESTANT EMPIRE MICHAEL DEHAVEN NEWSOM TABLE OF CONTENTS I. INTRODUCTION.........................................................................222 II. THE COMMON SCHOOL IN THE AMERICAN PROTESTANT EMPIRE ...............................................................................................231 A. Religion and the Common School ..............................................231 1. The Colonial Origins..............................................................231 2. The Founding.........................................................................232 3. The Early National Period, the Modern American Common School, and the Emergence of Common School Religion ...............233 B. Resistance to and Persistence in Support of Common School Religion.............................................................................................238 1. Resistance ..............................................................................238 2. Persistence: 1840 to 1960......................................................242 III. STATE COURT CASES ON COMMON SCHOOL RELIGION .............................................244 A. The State Cases Summarized .....................................................244 1. The “Bible” Cases..................................................................244 2. The “Prayer” Cases ................................................................246 3. The “Service Exercises” Cases ...............................................247 B. Cases Supporting Common School Religion: The Pro Narrative.......................................................................249 1. Anti-Roman Catholicism (and by Extension Other Religious Minorities)..............................................................249 2. Protestantization.....................................................................251 a. The Broad Tradition of American Civil Religion ................251 b. Common School Religion...................................................253 3. Pan-Protestantism and the Rhetoric of Nonsectarianism..........255 a. The Bible ...........................................................................256 i. The Old and New Testaments .........................................256 ii. The Old Testament .........................................................257 b. The Lord’s Prayer and Service Exercises ............................258 4. Social Reform: Education As the Social Dimension of Protestantization.................................................................260 219 220 Southern California Interdisciplinary Law Journal [Vol. 11:219 5. Attrition and Restraint: The Interplay of Majorities and Minorities ..............................................................................261 a. Majoritarianism..................................................................261 b. Minority Rights and Duties: Harm and Remedy.................262 C. Cases Striking Down Common School Religion: The Counter Narrative................................................................265 1. Anti-Roman Catholicism (and by Extension Other Religious Minorities) .............................................................................266 2. Protestantization.....................................................................267 a. The Separationism Idea and Broad Tradition ......................267 b. The Separationism Idea and Common School Religion.......268 i. The Northwest Ordinance ...............................................268 ii. Institutional Competence to Teach Religion....................269 iii. The Relevance of History and Tradition..........................270 iv. Religious Freedom and the Advancement of Religion .....271 3. Pan-Protestantism and the Rhetoric of Nonsectarianism..........271 a. The Bible and Permissible Uses, if Any..............................271 b. The Lord’s Prayer (or Other Prayers) and Service Exercises............................................................................277 4. Social Reform: Education As the Social Dimension of Protestantization.....................................................................277 5. Attrition and Restraint: The Interplay of Majorities and Minorities ..............................................................................279 a. Majoritarianism..................................................................279 b. Harm and Remedy..............................................................279 D. Released Time: A Regression....................................................284 IV. UNITED STATES SUPREME COURT CASES ON COMMON SCHOOL RELIGION: THE MCCOLLUM AND ZORACH NARRATIVES..........................................................................289 A. The United States Supreme Court Cases Summarized ................289 B. Analysis of the McCollum and the Zorach Narratives.................292 1. Anti-Roman Catholicism (and by Extension Other Religious Minorities) .............................................................................292 a. The McCollum Narrative ....................................................292 b. The Zorach Narrative .........................................................294 2. Protestantization.....................................................................295 a. The McCollum Narrative ....................................................296 b. The Zorach Narrative .........................................................299 3. Pan-Protestantism and the Rhetoric of Nonsectarianism..........300 a. The McCollum Narrative ....................................................301 b. The Zorach Narrative .........................................................303 4. Social Reform: Education As the Social Dimension of Protestantization.....................................................................304 5. Attrition and Restraint: The Interplay of Majorities and 2002] Common School Religion: Judicial Narratives in a Protestant Empire 221 Minorities ..............................................................................305 a. Majoritarianism..................................................................305 i. The McCollum Narrative ................................................306 ii. The Zorach Narrative .....................................................307 b. Harm and Remedy..............................................................308 i. Psychological Harm........................................................310 (1.) The McCollum Narrative ............................................311 (a) The Nature of the Psychological Harm....................311 (b) The Victims of the Psychological Harm ..................314 (c) The Categorical Quality of the Psychological Harm 316 (d) A Note on Harassment ............................................316 (2.) The Zorach Narrative..................................................317 (a) The Nature of the Psychological Harm....................317 (b) The Victims of the Psychological Harm ..................321 (c) The Categorical Quality of Psychological Harm......322 ii. Status-Based Harm .........................................................322 V. RECAPITULATION AND CONCLUSION: FOUR NARRATIVES AND THE SEARCH FOR COMMON GROUND.........................325 COMMON SCHOOL RELIGION: JUDICIAL NARRATIVES IN A PROTESTANT EMPIRE MICHAEL DEHAVEN NEWSOM* I. INTRODUCTION The United States of America was and still is a Protestant Empire.1 The basic character and purpose of this Protestant Empire flow from a series of Religious Settlements dating back to 1534.2 Religious Settlements are acts of a State, first England and later the United States, that “have as their primary objective the establishment and maintenance of a Protestant Empire.”3 These Religious Settlements are the constitutive elements or dimensions of the American Protestant Empire. They reflect the underlying reality of a Protestant Empire, a state that seeks to perpetuate and extend the Anglo-American Reformation, the Protestant Reformation as it manifested itself in England and in the United States. These Religious Settlements did not always settle matters of church and state. Indeed, most of them fell apart, particularly in England, sometimes leading to strife, bloodshed, and civil war. The Settlements did, however, resolve some matters. Over the long sweep of history from the 1530s until the present, they confirmed and supported the growth and development of a Protestant Empire, first in England, then in the United States. The American Protestant Empire, fueled by the Anglo-American Reformation and shaped by these Religious Settlements, exhibits five major “procedural” characteristics. The first is an opposition to Roman Catholicism. The second consists of a dedication to convert the people of the United States to Protestantism. The third is a fluctuating commitment to the idea that the various Protestant denominations constitute an affinity group participating in a complex tapestry of competition and cooperation. The fourth amounts to a belief that the perfect society, the “purified” Protestant Empire, is only one or more social reforms away. The fifth is a pragmatic commitment to attrition and restraint to achieve the goals of the Protestant Empire, rather than the use of the most violent forms of coercion * Professor of Law, Howard University School of Law. 1 Michael deHaven Newsom, The American Protestant Empire: A Historical Perspective, 40 WASHBURN L.J. 187, 187 (2001). 2 Id. at 192–94. 3 Id. at 194. 222 2002]
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