One of the more remarkable transformations of party images in recent years is the sharp erosion in the number of Americans who believe that the Democratic Party is a friend of religion.
This opinion shift is evident from the results of four religion and public-life surveys carried out by the Pew Research Center between July 2003 and August 2006. Pew asked its respondents whether they felt that the Democratic Party was “friendly to religion,” “neutral,” or “unfriendly.” In the August 2006 poll only 26 percent chose “friendly”—down significantly from just three years earlier. A fifth opted for “unfriendly.” (In contrast, a near majority-47 percent—in the Pew sample evaluated the Republicans as friends of religion.)
The change in the image of the Democratic Party has occurred across all segments of the public, but it is particularly noteworthy among married couples and observant Catholics. In 2003, for example, half of weekly churchgoing Catholics said the Democrats were friendly to religion; three years later less than a quarter felt this way.
The Democrats’ religious problem appears to be linked to another impression that has begun to crystallize among the electorate: that the party has been captured by secularists who have gained a stranglehold over the Democratic cultural agenda. According to the 2006 poll, more than four in ten respondents said that “non-religious liberals have too much control over the Democratic party”; seven of ten thought “liberals have gone too far in trying to keep religion out of the schools and the government.” It is not a stretch to say that even in the Iraq War protest—driven 2006 congressional elections, the 57 percent of weekly churchgoers who bucked the anti-Republican tide by voting against Democratic congressional candidates did so, at least in part, to protect their traditional values.
Some Democratic operatives and politicians, who first spotted these trends in 2004 exit-poll results, saw the “God gulf” as ominous and argued that their party must do more to reach out to religious voters. Al From, founder of the centrist Democratic Leadership Council (DLC), sized up the Democrats’ religious problem this way: “You can’t have everybody who goes to church vote Republican; you just can’t.” Sen. Hillary Clinton (New York), in a well-publicized January 2005 address to abortion-rights supporters, spoke of the party’s need to “find a common ground with people of faith.” Rosa DeLauro (Connecticut), co-chair of the House Democratic Steering Committee, said that the party must do more to “emphasize the religious imperatives” behind Democratic social policies. “We need to be more explicit and more public about our convictions and our beliefs.” For this reason, Sen. Charles Schumer (New York) and Congressman Rahm Emanuel (Illinois) recruited some “religion-friendly” candidates in 2006 to run against vulnerable socially conservative Republican incumbents. Although the deception might have helped to add a handful of social conservatives to the new Democratic majority, with Nancy Pelosi (California) as speaker and Sen. Patrick Leahy (Vermont) as judiciary chair, the ploy guarantees that religion-friendly bills and judicial nominees will never reach the floor of the House or Senate.
If the Democrats are sincere in their desire to reconnect with people in the pews, there is as yet no evidence of it. Every chance Democrats get to demonstrate this new “friendliness,” the opposite impression is reinforced. In response to President Bush’s request to Congress to provide educational assistance to children displaced by Hurricane Katrina, for example, Sen. Ted Kennedy’s (Massachusetts) initial reaction was to exclude religious schools from the aid package.
The Democratic attitude toward religion is not only the insistence of strict separation of church and state but also suspicion of people of faith. The special scrutiny by Democrats of the Catholic religious values of William Pryor and John Roberts, Bush’s appointees for the 11th circuit and chief justice, respectively, demonstrates this point. Senators Schumer and Dianne Feinstein (California), for example, wondered whether Pryor’s and Roberts’s “deeply held beliefs” would prevent them from protecting “the rights of all Americans—no matter their religious beliefs.”
Surprisingly, Catholic Democrats on the committee, instead of expressing outrage at the resurrection of the old anti-Catholic canard that Catholicism is incompatible with American political traditions, joined in with their own litmus tests. Senate Judiciary Committee member Richard Durbin (Illinois), for example, wanted assurances that Roberts’s Catholicism would not bias his judgment, implying that aspects of Catholic teachings are in conflict with the Constitution.
It is hard to come off as a sincere friend of religion when you insist that it must be kept out of the public square and don’t trust the judgment of religious folks.
The Old Democrats
The Democratic worldview wasn’t always hostile to religion. It wasn’t until the cultural upheavals of the late 1960s and early 1970s—when dogmatic, strict separationism became a central feature to the party’s ideology—that the Democrats began acquiring the reputation of a party inhospitable to religion.
Today, Catholic Democrats, even while professing their personal religiosity, are no less ardent disciples of strict separationism as are outspoken non-Catholic liberals in the party, such as party chair Howard Dean. Some of the most prominent Catholic Democrats have even adopted historically inaccurate separationist slogans as authentic representations of the American tradition. Sen. Joseph Biden (Delaware), an influential Catholic member of the Judiciary Committee, told Chris Matthews’s Hardball audience that the “separation of church and state doctrine has guided this country the past 225 years . . . . [It] hasn’t changed in any fundamental way from Thomas Jefferson’s time to now.”
Yet in truth, the separationist worldview embraced by contemporary Catholic Democratic senators is a considerable departure from the outlook that inspired their counterparts during the immediate post—World War II era, when Catholic Democratic congressmen, led by House Majority Leader John McCormack, sought constitutional means to accommodate religion (such as ways to help parochial schools).
Not only do today’s Catholic Democratic congressmen betray the heritage of their forbears each time they water down, bottle up, filibuster, or cast a vote against accommodation, but their “wall of separation” version of American history demonstrates willful indifference to the evolving knowledge of the American church-state tradition, not to mention a flippant disregard of more than a decade’s accommodationist rulings set down by the Rehnquist court in recognition of this “rediscovered” history. In fact, the church-state views of Senators Durbin, Biden, Kennedy, and their colleagues appear to be time-warped to the archaic separationist notions that informed Supreme Court church-state perspectives during the Everson era.
The Everson Paradigm
The modern era of church-state jurisprudence begins, of course, with Everson v. Board of Education (1947). In Everson, the Court broke dramatically from traditional understandings of “religious establishment” and created a national standard of permissible church-state relationships binding on all federal, state, and local jurisdictions.
The case involved a New Jersey law permitting Ewing township to reimburse parents of private (mostly Catholic) schoolchildren for the cost of bus transportation. Citing welfare and child-benefit considerations, the Court—by a slim 5-to-4 majority—decided this reimbursement was constitutional, but it also said that the establishment clause requires that neither the federal nor state governments “can pass laws which aid one religion, aid all religions, or prefer one religion over another.” Justice Hugo Black, writing for the majority, emphasized that the establishment clause “was intended to erect a wall of separation between church and state” that must be “kept high and impregnable” to secure the American people against religious-based “turmoil, civil strife and persecutions.”
Scholarship produced over the last decade by Philip Hamburger, James Hitchcock, John Witte, Daniel Dreisbach, and a host of others has exposed Justice Black’s faulty version of history in Everson. Even at the time of the Everson decision, Edward S. Corwin, the McCormick Professor of Jurisprudence emeritus at Princeton University, and Rev. John Courtney Murray, S.J., probably the most prominent Catholic public intellectual of the era, wrote scathing critiques of the new separationist orthodoxy the Court established in Everson and strengthened the next year in Illinois ex rel. McCollum v. Board of Education.
Corwin took aim at the Court’s use of authority, that is, its excessive reliance on sources that had no bearing on the writing of the First Amendment, such as Jefferson’s 1802 letter to the Danbury Baptists, President Grant’s remarks to the 1875 reunion convention of the Army of Tennessee, and the failed Blaine amendment. In his words, “The Court has the right to make history . . . but it has no right to remake it.”
Father Murray was so exasperated by the bad history contained in these decisions that he felt it necessary to append to his article some of the relevant historical sources that the Court missed. Legal historians, such as Noah Feldman, argue that the Court during this era was in the grip of “legal secularism.” And more simply, another factor that might have influenced the thinking of some of the Everson justices, as John McGreevy has documented, was the prevailing anti-Catholic intellectual climate of the late 1940s.
Separationists today—in light of recent scholarship on the First Congress—find it harder to ignore the fact that Madison was forced to acquiesce to House members who wanted the religion clause prohibitions limited to the national government and linked both to the protection of state autonomy on religious questions and prevention of government-enforced religious worship.
Today’s separationists, moreover, can no longer overlook the fact that the Conference Committee, whose agreement to the language of the amendment was essential for its adoption, included Roger Sherman, Madison’s most effective opponent at the Philadelphia Convention and crafter of the most distinctive features of the Constitution, and Oliver Ellsworth—both advocates of “Publick” religion. Ellsworth, who would become the second chief justice of the Supreme Court, supported tithing laws and lectured voters on their duty to elect officials “who were the sincere friends to religion.”
The notion that the First Amendment requires “complete separation” of church and state would almost certainly have been viewed by such astute lawyers as Ellsworth and Sherman as a construction different from what was intended, and harmful to religion. As Witte, a major contributor to the recent scholarship on the establishment clause, writes, “Conspicuously absent from all the drafts is the principle of separation of church and state.” Indeed, the expression “separation of church and state” never appears in any of the speeches made during the First Congress.
Congressional advocates of strict separation are also silent about their predecessors’ actions in the First Congress supporting religion, which are inconvenient to today’s advocates’ “high wall” construction of First Amendment history. During the time that the Bill of Rights was being drafted, the First Congress created a tax-supported chaplain system; reauthorized the Northwest Ordinance, which encouraged the teaching of religion in schools created under the ordinance; and recommended the presidential proclamation of a national day of thanksgiving and prayer, inaugurating a tradition that continues to this day. Madison opposed all three of these measures; Sherman supported all of them. Madison’s personal preferences on church-state issues clearly did not define the prevailing thinking in the First Congress concerning government’s role in promoting religion.
If today’s Democratic senators on the Judiciary Committee want to know the traditional take on “establishment,” they should look at what their predecessors on the Judiciary Committees in the 32nd Congress (1853) said about the meaning of the establishment clause in a report on the constitutionality of congressional chaplains. Short of an explicitly preferentialist union between church and state, the clear implication was that the only obstacles preventing Congress from accommodating religion were political, not constitutional. Today’s separationists, moreover, neglect to explain why those opposing aid to religious schools thought it necessary to have the ill-fated Blaine amendment added to the Constitution in the late 19th century.
At a minimum, the substantial scholarship produced in recent years has shown that, despite the musings of Senators Biden, Durbin, and the like, the doctrine of strict separation of church and state has not been the guiding principle of this country for the past 225 years. Not only are today’s Catholic Democratic congressional members out of step with the complete American tradition relating to church and state, their views on this issue are at odds with the perspectives that guided Catholic Democratic representatives and senators of their fathers’ and grandfathers’ generation, when congressional efforts to accommodate religion became a matter of public debate during the late 1940s, after the Everson ruling was handed down.
The Battle for Parochial School Aid
The issue of whether Congress can provide financial assistance to improve the quality of secular education, so that parochial and public school students could both share in the federal benefits, became a matter of considerable political and constitutional dispute in the late 1940s. Reading accounts by such historians as Diane Ravitch and Hugh Douglas Price on the politics of federal aid to education during the late 1940s through the early 1960s, one is fascinated by the persistence and ingenuity on the part of congressional Democrats, led by McCormack, to allow parochial school students to share in the benefits of federal education legislation.
The expectation that the Constitution permit federal aid to religious as well as public schools was not unreasonable. The only Supreme Court decisions at the time that spoke directly to parochial schools were Pierce v. Society of Sisters (1925), Cochran v. Louisiana (1930), and Everson. Pierce ruled that religious schools were legitimate alternatives to public schools; Cochran upheld state assistance to parochial school students in the form of textbooks; and Everson, as we know, said reimbursing parents for bus transportation was permissible.
The expanding public sector launched by New and Fair Deal government activism had brought the welfare state in contact with religion. The National School Lunch Act, passed in 1946, was feeding thousands of poor children in both public and non-profit private schools, and ex-GIs were attending sectarian colleges at the government’s expense.
A federal-aid-to-education bill, which included an option for assistance to parochial schools, had just passed the Senate on May 5, 1949, by a lopsided bipartisan 58-15 margin, with the active support of the Republican leader, Robert Taft, and prominent Catholic Democrats, including Francis Myers, the majority whip. (Only one Catholic Democrat opposed the aid bill.) President Truman was on board. All that was needed was House action.
When the bill reached the House on May 9, John Lesinski—a Catholic, pro-labor Democrat from Detroit and chair of the Education and Labor Committee—appointed Graham Barden, a segregationist from North Carolina, to head up the special subcommittee to work on the aid measure. After a month of hearings and mark-up sessions, the subcommittee reported the bill back to the full committee. Barden deleted the Senate provisions allowing for aid to parochial schools and requiring equitable assistance to black schools in segregated states.
The Barden Bill touched off a political firestorm that stymied federal education assistance projects for the next 16 years. Lesinski accused Barden of writing an “anti-Negro” and “anti-Catholic” bill “dripping with bigotry and racial prejudice.” Other Catholic Democratic congressmen voiced similar sentiments. Majority Leader McCormack called the bill “grossly unfair” and “anti-Catholic.” Barden accused his critics of acting on behalf of the Catholic hierarchy.
The acrimony touched off by the Barden Bill entered a new phase when Francis Cardinal Spellman of New York, who strongly supported federal educational initiatives and parochial school aid in the form of “auxiliary services”— which he defined as non-religious textbooks, health services, transportation, and other “incidental expenses involved in education”—and Eleanor Roosevelt, a staunch opponent of aid to religious schools, entered the fray during the summer of 1949. Their widely reported exchanges quickly escalated into a public brawl.
The former first lady, who harbored a suspicion of “Catholics’ desire to control the schools,” argued that parochial aid “would be harmful … to our whole attitude of tolerance in the religious area,” and advised the cardinal that the political activities of church leaders “lead people to believe that they are not interested mainly in the spiritual side of the church, but that they have a decided interest in temporal affairs.”
Roosevelt’s relentless attacks against the motives of Catholic leaders, her accusations of Catholic intolerance, and her associations with causes and individuals antagonistic to the Church—such as her defense of anti-Catholic polemicist Paul Blanshard—so exercised the cardinal’s patience that in a July 21 public statement he accused the former first lady of a “record of anti-Catholicism” and perpetuating “discrimination unworthy of an American mother.” Even though the cardinal was pummeled by intellectuals and media elites, President Truman was so concerned about a Catholic backlash against the party that he asked Bronx Democratic County Chair Ed Flynn to intervene to effect a public reconciliation.
The mutual suspicions ignited by the Roosevelt–Spellman row exposed fissures in the Democratic Party between its culturally traditional Catholic wing and the then-nascent culturally liberal secularist minority that would deepen over time and eventually split the party two decades later during the 1968 and 1972 national conventions.
Despite the official rapprochement between the cardinal and the former first lady, parochial school aid remained a stumbling block to getting a federal-aid-to-education bill out of Congress for the next 16 years. Opponents—including President Kennedy, incidentally—pointed to Everson as a reason for excluding religious schools from federal aid programs. Speaker McCormack and other Catholic congressmen, such as Roman Pucinski, Tip O’Neill, and James Delaney, did not view government aid to improve the quality of secular education for parochial schoolchildren as funding religion.
New Dealers like McCormack, for example, thought that public works–type construction projects could be a constitutionally acceptable approach to funnel assistance to parochial schools. He proposed low-interest construction loans for classroom facilities.
O’Neill and Delaney used their position on the House Rules Committee to block federal proposals that excluded parochial school aid. To blunt criticism that the initiatives proposed by Catholic Democrats were unconstitutional, McCormack enlisted the expertise of Professor Arthur Sutherland of the Harvard University Law School.
Through their doggedness, skillful parliamentary maneuvering, and assiduous efforts at coalition-building—by enlisting the support of non-Catholic congressmen and senators, for example—Catholic Democratic congressmen held fast in their fight for parochial school aid. In 1965, they won a symbolic victory that brought some tangible results when Congress passed the Elementary and Secondary Education Act. Under Title I of this law, parochial school students meeting the poverty criteria became eligible to participate in federally funded education programs.
The Court Record
It is not the Congress, however, but the Court that decides whether the establishment clause permits the kind of auxiliary services envisioned by Cardinal Spellman and post-war Catholic Democratic congressmen. At first the Court tacked to a more absolutist position. Expanding on the Everson assumption concerning religion’s divisive potential, the Court erected—beginning with Lemon v. Kurtzman in 1971—formidable roadblocks to the implementation of the auxiliary services concept using state funds and Title I money.
In nine cases over a 14-year period, the Court struck down a variety of parochial school aid programs enacted by coalitions of religiously heterogeneous legislative majorities in New York, Rhode Island, Pennsylvania, Ohio, and Michigan. The Court reasoned that religion’s potential to enflame the community is so intolerable that even the prospect of an inadvertent or incidental contact between church and state is constitutionally impermissible. States could offer remedial educational services, for example, but not to students on parochial school property, lest public employees be psychologically transformed into agents of religion. (New York City met the Court’s “prophylactic” contact standards by requiring publicly paid remedial-education teachers to provide their services from parked vans off school property.)
It was only a matter of time before the shaky historical foundations undergirding the doctrine of strict separation would come under challenge by scholars and jurists. The bizarre outcomes produced by the logic of this jurisprudence also became the subject of increased ridicule and wonderment.
A major turning point seems to have been Justice Rehnquist’s insistence in his Wallace v. Jaffree (1985) dissent that establishment-clause decisions could no longer ignore the “lost history” recounted by Corwin and Murray in 1949 and expanded upon by recent scholarship.
By 2000, Justice Clarence Thomas acknowledged the Court’s departure from its strict separationist moorings when he observed that, “Our Establishment Clause jurisprudence has shifted in recent times.” This new jurisprudence appeared in cases like Zobrest (1993), Agostini (1997), and Mitchell (2000), all validating the sort of “auxiliary services” that Catholic Church leaders and post-war Catholic Democrats were pressing for in the 1940s. Two years later, in the Zelman case, the Court interpreted the establishment clause to permit vouchers.
Yet as Justice Rehnquist indicated in Locke (2004), accommodations permitted under the establishment clause are not necessarily required under free exercise. States may establish voucher programs, and, presumably, Congress may enact faith-based initiatives, but they are not obligated under the Constitution to do so. The Court left these battles to be fought out in the legislatures.
Catholic Democrats Against Religion
Catholic Democratic congressmen today, unlike their predecessors, are reluctant to accommodate religion. In fact, on votes where there is a clear-cut opportunity to accommodate religion, they are overwhelmingly in opposition. On a largely symbolic roll call on the D.C. voucher bill one year after Zelman, all but two Catholic House Democrats voted against the pilot program. Only one Catholic House Democrat voted in favor of Bush’s faith-based charity initiative. By a 4-to-1 margin, House Democrats last July voted against keeping “God” in the Pledge of Allegiance. Catholic Democrats were even more united in their opposition to protecting the pledge; only ten of 69 supported the resolution. Republicans, in contrast, were significantly more “God friendly” on this issue; 97 percent supported the pledge protection amendment (only one Catholic Republican voted no). Casting votes for accommodationist measures would publicly identify Democratic members of Congress as being out of lockstep with the party’s ascendant secularist mainstream.
The secularist version of American history says that the “separation of church and state doctrine has guided this country over the past 225 years.” The new scholarship demonstrates that strict separation has not been the only tradition; there is also the tradition of accommodation.
According to public opinion surveys, moreover, the doctrine of strict separation is clearly not the normative principle that governs the American people’s attitudes toward church and state. Most Americans endorse accommodation, both symbolically and by supporting government policies that provide tangible benefits to religious groups.
Pew polls conducted between 2001 and 2006 show that majorities, sometimes in landslide proportions, do not object to the Ten Commandments being displayed on public property, support making public school facilities available to student religious groups, endorse faith-based initiatives, and support “federal funding for vouchers to help low and middle income parents to send their children to private and parochial schools.” Indeed, the 2006 poll shows that majorities want more “religious influence on American life and on government.”
The public’s endorsement of religion-friendly public policies cannot be dismissed merely as uninformed opinion or fringe thinking located outside the mainstream of American political experience. Indeed, their accommodationist outlooks tap into a repository of values and traditions that connects them through the Rehnquist Court’s decisions to the McCormack Democrats, to the values and traditions that the drafters of the First Amendment sought to promote and protect. It is opposition to this religion-friendly heritage that separates contemporary-era congressional Democrats from their McCormack-era predecessors. According to the August 2006 Pew Poll, “even most Democrats don’t see their party as ‘friendly’ to religion.”
Yet, even if Catholic Democratic congressmen wished to be true friends of religion, they run up against their party’s secularist base. Even more constraining is the secularist core among the party’s activists and primary voters, exemplified by committed Howard Dean supporters. A Pew survey released in April 2005 describes these activists as being significantly more culturally liberal and secular than the rest of the electorate. According to Pew, the “blurring of the separation between church and state” (88 percent) rivals “America’s aggressive foreign policy” (89 percent) as these activists’ chief policy concerns. It is the substantial presence of secularists in the Democratic Party and the influence this bloc has on its cultural agenda that explain why there are few McCormacks, Pucinskis, and Delaneys sitting on the Democratic side of the aisle these days, and none with the clout to push religion-friendly policies.
And that is a loss.