Lemon and anti-Catholicism

[Thomas C. Berg]

I may have spoken a little too strongly before when I said
fundamentalist schools "were already replacing Catholic
schools as the major perceived threat."  I agree that
anti-Catholicism (considered or instinctive) was still
highly significant in the early 1970s no-aid cases, for the
reasons Doug gives.  (BTW, Hugo Black Jr. wrote that a
dislike of the Catholic Church was the only thing his
father had in common with the Klan; and both the
concurrence in Allen and the story about the Lemon oral
argument indicate that.)

But I do think that this period (late 60s and early 70s)
saw the beginning of the long steady shift toward
conservative Protestants being perceived as an equal and
often bigger threat.  The connection between the
conservative Protestant schools and aid questions is
admittedly somewhat indirect, since fundamentalist schools
generally did not want state aid.  But that attitude did
give way some in the South during desegregation; remember
that *Norwood v. Harrison*, the decision barring
Mississippi from loaning books to segregated private
schools, came in 1973, only two years after Lemon and in the
same years as Nyquist.  There were also segregated-school
grants involved in the policy invalidated in *Griffin v.
Prince Edward School Board* (1964).  I feel pretty confident
that the seg academies issue was widely known in 1971 --
dealing with efforts to avoid integration was at the top of
the Court's priorities by that time, see, e.g., Griffin,
Green (1969), Swann (1971).  But I acknowledge that in most
cases as of 1971, the connection between seg academies and
aid would be more indirect:  namely, as I said before, that
seg academies would generally tend to confirm a liberal
predisposition to regard all religious schools as backward
and antisocial.

Tom Berg





Black, dissenting in *Allen* (1968)
On Thu, 9 Sep 1999 07:42:20 -0500 "Shawn F. Peters"
<sfpeters at FACSTAFF.WISC.EDU> wrote:

> I wouldn't presume to speak for Bill Ball, one of the attorneys who
> defended the aid program at issue in Lemon, but a lengthy passage of his
> book "Mere Creatures of the State?" is devoted to this very issue.  Ball
> was particularly bothered by Hugo Black's questioning during oral argument
> in Lemon; he claimed that Black was "pruriently interested" in the role
> played by nuns in Catholic schools.  He went on to suggest that this
> "former Klansman" who "had once worn white robes instead of black" was
> virulently anti-Catholic and thus predisposed to strike down the aid
> scheme, which benefited numerous Catholic schools in Pennsylvania.  (Ball
> had even worse things to say about Paul Freund and the genesis of
> "excessive entanglements," but that's probably fodder for another discussion.)
>
>
>
>
>
> At 02:21 PM 9/8/99 -0500, you wrote:
> >A few days ago, Tom Berg wrote:
> >
> >>At the same time, however, by 1971 the distrust of Catholics had
> >diminished >greatly, partly because of JFK and partly because of Vatican
> >II.  So I think >that Lemon, to the extent it wasn't just continuing with
> >an autopilot antipathy >to church-related schools, was responding to some
> >other factors as well.  >Here's a couple of suggestions, based on work I've
> >done for a couple of >articles in progress:
> >
> >>First, by the late 1960s lots of conservative Protestant segregation
> >academies >had sprung up in the South in order to avoid public school
> >desegregation.  >This confirmed the belief of many Americans, especially
> >mainstream liberals, >that religious schools would always tend to be
> >backward, antisocial, and >harmful.  Fundamentalist schools were already
> >replacing Catholic schools as >the major perceived threat.
> >
> >
> >To which I belatedly add:
> >
> >        Don't underestimate the autopilot effect.  All the justices in
> 1971 were
> >educated, and spent their formative years, well before the thaw in
> >Protestant-Catholic relations.  If all your life aid to religious schools
> >has been a Catholic issue, and if all your life you have accepted the
> >conventional understanding that most such aid is unconstitutional, it may
> >be hard to fundamentally reexamine those assumptions when you are the age
> >of a Supreme Court justice.  We also have explicit anti-Catholicism in
> >Douglas's opinion in Lemon and in Black's opinion in Allen, three years
> >earlier.
> >
> >        The segregation issue loomed large in Lemon; Lemon was black and he
> >briefed an equal protection claim as well as his Establishment Clause
> >claim.  I assume that most of the Justices knew about the Protestant
> >segregation academies in the south, although I haven't been able to confirm
> >that as of 1971.
> >
> >        But I don't think the Protestant schools yet loomed large.  Lemon was
> >briefed and argued as a program to rescue the Catholic schools in
> >Pennsylvania; Douglas's law clerk saw it as a fight between Catholics and
> >Catholic-haters; in the companion case from Rhode Island, nearly all the
> >affected schools were Catholic; most of the Protestestants, including the
> >evangelicals, were still opposed to financial aid to religious schools.  I
> >think that in Lemon and the other early-70s cases, this was still very much
> >treated as a Catholic issue.
> >
> >        I have written this up in The Underlying Unity of Separation and
> >Neutrality, 46 Emory LJ 43, 53-65 (1997).
> >
> >        In today's more vehement anti-aid literature, the Religious Right
> and the
> >Catholic Bishops are equal villains, and it fits with Tom's second point
> >(not quoted above) about the devaluation of particularistic religion.  I
> >think he is right about that point, and I suspect that liberal Protestants
> >and secularists have always been suspicious of evangelicals, but I don't
> >think many people had linked evangelicals to the school aid issue as of
> >1971.  I will be interested to see if Tom has uncovered those links.
> >
> >        My colleague Scot Powe has a forthcoming book on the Warren Court, in
> >which he argues that the dominant theme of that Court's jurisprudence was
> >not to protect the unrepresented, but to impose the values of the national
> >elite on regional minorities.  The regions he principally has in mind are
> >the south and states with large concentrations of Catholics.  Lemon is just
> >outside his period, but of a piece with this thesis that Catholics were
> >part of the target.
> >
> >
> >
> >
> >Douglas Laycock
> >University of Texas Law School
> >727 E. Dean Keeton St.
> >Austin, TX  78705
> >        512-232-1341 (phone)
> >        512-471-6988 (fax)
> >        dlaycock at mail.law.utexas.edu
> >
>
>
> Shawn Francis Peters
> School of Journalism and Mass Communication
> University of Wisconsin-Madison
> 821 University Avenue
> Madison, Wisconsin 53706-1497
> Phone: (608) 263-4858
> Fax: (608) 262-1361
> e-mail: sfpeters at facstaff.wisc.edu

-----------------------------------------
Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu