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Michigan Law Review Volume 101 Issue 6 2003 The Serpentine Wall of Separation John Witte Jr. Emory University Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, First Amendment Commons, Legal History Commons, Religion Law Commons, and the Supreme Court of the United States Commons Recommended Citation John Witte Jr., The Serpentine Wall of Separation, 101 MICH. L. REV. 1869 (2003). Available at: https://repository.law.umich.edu/mlr/vol101/iss6/21 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THAT SERPENTINE WALL OF SEPARATION John Witte, Jr.* THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE. By Daniel L. Dreisbach. New York and Lon­ don: New York University Press. 2002. Pp. x, 283. $42: SEPARATION OF CHURCH AND STATE. By Philip Hamburger. Cam­ bridge and London: Harvard University Press. 2002. Pp. xiii, 514. $49.95. I. INTRODUCTION "The task of separating the secular from the religious in education is one of magnitude, intricacy, and delicacy," Justice Jackson wrote, concurring in McCollum v. Board of Education, the Supreme Court's first religion in public schools case.1 "To lay down a sweeping constitu­ tional doctrine" of absolute separation of church and state "is to decree a uniform ...unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other but which themselves from time to time change atti­ tudes. "2 If we persist in this experiment, Justice Jackson warned his brethren, "we are likely to make the legal 'wall of separation between church and state' as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded."3 While a majority of the United States Supreme Court embarked on a four-decade project of building this "serpentine wall,"4 Justice Jackson took little further part in the effort. He continued to regard the separation of church and state as essential to the protection of * Jonas Robitscher Professor of Law, Director of Law and Religion Program, Director of Center for the Interdisciplinary Study of Religion, Emory University. B.A. 19 82, Calvin College; J.D. 19 85, Harvard. - Ed. My thanks to Harold Rerman, Russell Hittinger, Robert A. Schapiro, and Charles A. Shanor for their helpful comments on a draft of this Review. 1. McCollum v. Bd. of Educ., 333 U.S. 203, 237 (1948) (Jackson, J., concurring). 2. Id. 3. Id. at 238; see also DREISBACH, p. 109. 4. DREISBACH, pp. 100-04 (summarizing cases); HAMBURGER, pp. 463-78. The most recent Supreme Court cases where the separationist principle dominated the Court's rea­ soning were Texas Mont hly Inc. v. Bullock, 489 U.S. 1 (1989); Agui lar v. Felt on, 473 U.S. 402 (1985); and Larki n v. Grendel' s Den Inc., 459 U.S. 116 (19 82). 1869 1870 Michigan Law Review [Vol. 101:1869 religious liberty, along with the freedoms of conscience,5 exercise, and speech.6 But he had no patience with unilateral or extreme applica­ tions of any of these First Amendment principles,7 not least the princi­ ple of separation of church and state. Imprudent application of this latter principle, he wrote, would draw the Court into "passionate dialectics" about "nonessential details" that were often better left to state and local governments to resolve.8 In his last years on the bench, Jackson thus led the Court in a case that denied standing to a party who argued that religious instruction in a public school violated the separation of church and state.9 He was the sole dissenter in a church property dispute case, where the Court read the principle of separa­ tion to require a state to defer to the internal religious law of the dis­ putants rather than apply its own state laws.10 He dissented again from the Court's decision to uphold a public school program that gave stu­ dents release time to participate in religious events off site.11 Arguing that this was precisely the kind of case where the principle of separa­ tion did apply, he complained: "The wall which the Court was pro­ fessing to erect between Church and State has become even more warped and twisted than I expected. "12 For all his growing misgivings about separationism, however, even this bold dissenter on the Court,13 well trained in legal history,14 never 5. See, e.g., United States v. Ballard, 32 2 U.S. 78, 92-9 5 (19 44) (Jackson, J., dissenting from decision to use the truth of a professed religious belief to question a party's sincerity); Prince v. Massachusetts, 321 U.S. 158, 176-78 (1944) (Jackson, J., dissenting from decision to uphold child-labor laws against distribution of religious literature by a minor); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 642 (19 43) (Jackson, J., writing for the majority, ex­ empting Jehovah's Witnesses from compulsory flag salute). 6. See ROBERT H. JACKSON, THE SUPREME COURT IN THE AMERICAN SYSTEM OF GOVERNMENT 76-77 (1955); Paul A. Freund, Mr. Just ice Jacks on and Indi vi dual Ri ghts , in MR. JUSTICE JACKSON: FOUR LECTURES IN HIS HONOR 29 , 36-43 (1969) (summarizing cases). 7. See, e.g., Kunz v. New York, 340 U.S. 29 0, 29 5-314 (1951) (Jackson, J., dissenting from holding that a city may not deny a license to a Baptist preacher in a public park); Terme­ niello v. Chicago, 337 U.S. 1, 13-37 (1949) (Jackson, J., dissenting from holding that free speech protects anti-Semitic hate speech that causes riot); Saia v. New York, 334 U.S. 558, 566-72 (1948) (Jackson, J., dissenting fromholding that banning religious broadcasts without a license violates free speech); Murdock v. Pennsylvania, 319 U.S. 105, 117-34 (1 943) (Reed and Jackson, JJ., dissenting from holding that free-exercise rights prohibit laws requiring re­ ligious solicitors to procure a license in advance). 8. Zorach v. Clauson, 343 U.S. 306, 32 5 (1952) (Jackson, J., dissenting); see also JACKSON, supra note 6, at 65- 83 (examining role of Supreme Court in state and local dis­ putes). 9. Doremus v. Bd. of Educ., 342 U.S. 42 9 (1952). 10. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 12 6-32 (1 952) (Jackson, J., dissent- ing). 11. Zorach, 343 U.S. at 32 3-25 (Jackson, J., dissenting). 12 . Id. at 32 5. 13. See EUGENE c. GERHART, AMERICA'S ADVOCATE: ROBERT H. JACKSON 294-300 (1958). Of Justice Jackson's 32 4 Supreme Court opinions, 109 were dissents, 63 concur- May 2003] . The. Serpentine Wall 1871 once questioned the historical foundation or constitutional imperative of strict separationism. In Everson v. Board of Education,15 the Supreme Court for the first time applied the First Amendment disestablishment guarantee to the states. Justice Black, Jackson's nemesis,16 wrote for the Everson majority. After a lengthy historical recitation, Black quoted Thomas Jefferson's famous 1802 Letter to the Danbury Baptist Association as dispositive evidence that the "First Amendment has erected a wall of separation between church and state" that "must be kept high and impregnable."17 Though Jackson dissented from the Everson holding, he accepted the Court's account of. the history and meaning of the First Amendment.18 Jackson was concerned about the rhetorical "undertones" of "advocating complete and uncompromising separation of Church from state."19 He was not concerned about the historical underpinnings of separationism itself. Indeed, Jackson thought his views to be in full accord with the intent of the founders - not least his hero President Thomas Jefferson.20 Justice Jackson might well have come to a different opinion had he enjoyed the luxury of reading the two exquisite books here under re­ view. He would have learned that the history of separationism was far more "serpentine" than the straightforward history lesson of Everson had led him to believe. And he would have learned that the wall-of­ separation metaphor was itself potentially "serpentine" - now in the sense of the ancient serpent in the garden of Eden who offered access to enduring wisdom by means of a seductively simple formula.21 "Metaphors in law are to be narrowly watched," Benjamin Cardozo had warned in 1926, "for starting as devices to liberate thought, they end often by enslaving it. "22 So it has been with the metaphor of a wall of separation.23 What started as one of several useful principles of rences. Id. at 504 n.95; Bi bliography: The Judi ci al Opi ni ons of Just ice Robert H. Jackson in the Supreme Court ofth e Unit ed St at es October 6, 1941 - October 9, I954, 8 STAN. L. REV. 60, 60-71 (1955). 14. See ROBERT H. JACKSON, THE STRUGGLE FOR JUDICIAL SUPREMACY (1941) (giv- ing a detailed history of constitutional law). 15. 330 U.S. 1 (1947). 16. Dennis J. Hutchinson, The Black-J ackson Feud, 1988 SUP. er. REV. 203. 17. Everson, 330 U.S. at 18. 18. Id. at 28. 19. Id. at 19. 20. JACKSON, supra note 14, at 315 (discussing Jefferson). 21. Genesi s 3:1-7. 22. Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (N.Y. 1926). 23. See DREISBACH, pp. 107-28, and HAMBURGER, pp.
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