Works By John Courtney Murray, S.J.

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Part Two

Four Unfinished Arguments

6. IS IT JUSTICE?

The School Question Today

7. SHOULD THERE BE A LAW?

The Question of Censorship

8. IS IT BASKET WEAVING?

The Question of Christianity and Human Values

9. ARE THERE TWO OR ONE?

The Question of the Future of Freedom


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6

IS IT JUSTICE?

The School Question Today

IT IS A COMMONPLACE that the Founding Fathers lived in, and legislated for, a far simpler age than ours. For instance, they completed their work long before the advent of what Alexander Meiklejohn has called the great "revolution" of modern times, that is, the transfer of education from the church to the state. Hence, when they framed the First Amendment, they had before them a comparatively simple problem. It was no more than the problem of religion in its relation to the public order of society and therefore to the (still uncomplicated) institutions of the state. Among these institutions the school had not yet found a place. Then came the revolution. In consequence, the School Question has become an integral part of our historical legacy of problems. The argument about it is still far from finished. Or, from another point of view, the real argument has hardly begun.

I shall omit all discussion of the historical genesis of the problem, in its two related aspects, that is, the relation of religion to public education, and the relation of the religious school to public authority and law. Moreover, I shall not elaborate the contention that this twofold problem is altogether real today, indeed, never more real than today. This contention will be readily granted by anyone who has followed and understood the changes that have been operated within our pluralist society over the past two generations.

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THE OLD SOLUTION IN THE NEW SITUATION

Changes in educational theory have taken place, with the result that the question today among informed educators is not the outdated one, whether there should be an "ideological" element present in the schooling of the young. The only question now is, what should this ideological element be? Moreover, people of perception today see quite clearly that the legal denial of all manner of public aid to religious schools does not fit with the present social affirmation of the value of what these schools are doing, precisely inasmuch as they are giving solid religious instruction and formation.

Again, changes have occurred in the religio-social structure of America that have profoundly altered the understanding which nineteenth-century America had of itself. From a socio-religious point of view, American society has assumed a new pluralist structure, notably different from the structure it exhibited a century ago when the public school system had its beginnings.

America's new self-understanding—its understanding of the new structure of its religious pluralism—has invalidated four concepts of the public school that have been entertained. I mean the concept of the public school as (a) vaguely Protestant or (b) purely secular in its atmosphere. I also mean the concept of the public school as the vehicle (a) for the inculcation of "democracy" as a quasi-religious ideology, or (b) for the transmission of spiritual and moral values in some non-sectarian sense. None of these four concepts fit with the present facts of American life. American society is neither vaguely Protestant nor purely secular. The religion of America is not "democracy," nor is it some generalized faith in "values." Religion in America has a form, a precisely defined form, a pluralistically structured form. This is the fact.

This fact has consequences. It has consequences with regard to the present desire and effort to relate public education more vitally to religion. It also has consequences with regard to the dual pattern

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assumed by the American educational system in the nineteenth century—that is, the public school as the single publicly supported school, and the church-school as barred from public support. This historical pattern is outdated. It is an anomaly in our present pluralist society. It is a relic of the past, surviving in the present on the momentum of ideas and social facts that time itself has left behind.

Obviously, I am not implying that there is an easy or rapid solution for the presently unsolved problem of the segregationist pattern of American public education—the segregation of religion, in the concrete pluralist sense, from public school premises, and the segregation of the religious school from public aid. The solution, like the creation of the problem itself, will be the work of generations. And nobody knows in this moment what the solution will be, save that it will be reached, as I shall say, by a balance of all the relevant principles.

In any event, the dynamism of change will be the familiar one that continually operates in American life. I mean a growth in moral insight, assisted by a realistic grasp of socio-religious reality. Perhaps an analogy will illustrate the workings of this dynamism.

The Supreme Court has ruled that the doctrine of "separate but equal" educational facilities for Negroes is incompatible with the present-day American constitutional concept of civic equality within the unity of the body politic. The decision is a good example of the way in which sociological alterations sharpen moral judgments and thus lead to legal changes.

From the moral point of view the "separate but equal" doctrine was always unjust; racial discrimination cannot be defended on moral grounds. Nonetheless, the doctrine could once have been defended from a sociological point of view as necessary in the circumstances—in view of the unenlightened state of the public conscience, the temporarily inferior cultural status of the Negro, etc. However, circumstances have changed and the level of the public

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conscience has risen above ancient irrational prejudices. The sociological defense of the doctrine is no longer admissible. Therefore, the moral judgment must prevail. And the law should conform itself to this moral judgment. The doctrine of separate but equal facilities, which never had any status in morals, no longer has any status in law.

The analogy is easily constructed. The doctrine that public aid should be denied by law to certain schools simply on the grounds that they teach a particular religion was never in conformity with the moral canon of distributive justice. This moral norm requires that government, in distributing burdens and benefits within the community, should have in view the needs, merits, and capacities of the various groups of citizens and of society in general. The operation of this norm is visible in many fields—income tax laws, selective service, social security, labor laws, etc.. It ought likewise to control the action of government in support of schools. The principle of distributive justice would require that a proportionately just measure of public support should be available to such schools as serve the public cause of popular education, whether these schools be specifically religious in their affiliation and orientation, or not.

Admittedly, the application of this moral principle within the special conditions of American society would be extremely difficult. But I am here citing the principle itself; I leave aside such concrete problems of application as, for instance, the question, what would concretely be a "proportionately just" measure of support for any existent institutionalized system of religious schools. My point is that the nineteenth-century pattern of popular education—the dual pattern described above—has always fallen under adverse moral judgment, and the principle of judgment has always been the moral norm of distributive justice.

Nonetheless, this dual pattern, with its legal denial of public support to church-affiliated schools, which never could have been defended by any manner of abstract argument, might once have been

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defended by a manner of sociological argument. The grounds would be that it sufficiently reflected the realities of American society; that it fitted with the community's understanding of itself as somehow vaguely Protestant or secular; that it was in accord with the nineteenth-century concept of American religious pluralism; that it was a necessary concession to popular religious prejudices; that, in general, it approved itself to the public conscience as being necessary in the circumstances. None of these sociological arguments is presently valid. They have been basically invalidated by the alteration in the pluralist structure of American society.

The public school system still, of course, merits strong defense, the more so as it gradually succeeds in relating itself realistically to the religious realities of the United States. But the old dual pattern is out of touch with contemporary socio-religious reality. The notion of "public education" as meaning a unitary and monolithic school system which singly and alone is entitled to public support has been rightly called (by Mr. Robert E. Rodes, Jr.) "an aberration in the general picture of our society, which is pluralistic."

One would expect that, as the pattern of society has altered and assumed a new pluralistic structure, so too would the pattern of the school system. The religious school would still remain "private" in a sense; it is a special kind of school which serves the religious and educational needs of a particular community—the Catholic community, for instance. However, the change in the sociological status of this particular community within the one American community would require some manner of corresponding change in the status of the school system that serves its needs.

We have not to do here with a small eccentric group, existing on the periphery of American society, whose needs might possibly be overlooked in the interests of some greater good. On the contrary, we have to do with a segment of our society, fully integrated into its pluralist structure, which has now become so large that its

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educational needs and interests have become public needs and interests, at the same time that they remain special to the particular community. It must be remembered that the good of a pluralist society has to be defined in pluralist terms. The needs and interests of the three communities which make up American society are not all the same. But the social equality of these three communities entitles each of them to require that the public service should accommodate itself to its particular needs, in accordance with a good American principle to which I shall later refer. This accommodation would, in turn, require an alteration in the present status of the school system which serves the needs of a particular religious community in America. The denial of all manner of public aid to this kind of school system is an anomaly today. It represents a failure or a refusal to deal with the facts, with the altered realities of American life.

Here again, a true appreciation of sociological change serves to clarify a moral principle. The denial of aid to the religious school does not square with the fact of our pluralist social structure. One who sees this will likewise see that this denial does not square with the principle of distributive justice. American government today is not reckoning fairly with the diverse educational needs of the pluralist community which it is supposed to be serving. There is something wrong here. And the realization that something is wrong is forcing itself upon an increasing number of American citizens who understand both the nature of our society and the principles of our government. There is an increasing disposition to recognize that the state laws which forbid all manner of public aid to church-affiliated schools are both out of date and at variance with justice. I do not believe that anyone really sees the solution to this problem;. it is much too complicated. But I do believe that a decisive number of people see the problem itself. And they realize that nineteenth-century legislation does not solve the problem as it appears in mid-twentieth century.

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THE OLD PRINCIPLES AND THE NEW SOLUTION

From the restricted legal point of view the general problem is to validate in law an interpretation of the First Amendment in its application to the school experience of religion that will rightly command the rational consent of the governed. This is not impossible. Our whole constitutional history has been guided by what is now an explicit theory—the theory of the dynamic development of judicially enforced constitutions. Our constitutional law is a living law. It has, therefore, two characteristics. First, it must remain true to the inner spirit that animates all its provisions; I mean the idea that the American is a free man under a limited government whose actions are themselves subject to a higher law which derives from the Eternal Reason of the Creator of all things and is embodied in the very nature of man as God's creature and image. Second, remaining true to this inner idea and spirit, our constitutional law must reckon with the changing realities of American life—whether they be social or economic or religious realities. A constitutional development is truly dynamic when it reveals both of these characteristics.

I venture to say that the McCollum rule, taken in all its naked absoluteness, reveals neither of them. It is false to the spirit of the Constitution in consequence of the limitations it places on the religious freedom of American citizens. It is reactionary in consequence of its failure to take account of today's educational, social, and religious realities. It is the very opposite of a dynamic development in the true American tradition.

Such a development can be set afoot only if we renew the wisdom of the past in the light of the realities of the present; if, that is, we repossess the full American tradition and then apply it for what it inherently is tradition of progress.

An initial question concerns the mind of the Founding Fathers as expressed in the legislative history and intent of the First Amendment. There are those who say that the "no establishment" clause,

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thus historically interpreted, simply forbids preferential aid to one religion and consequently permits non-preferential aid to all religions. There are those whb further say that the whole problem of government aid to religion in the school ought to be solved by a return to this historical understanding of the First Amendment. This point of view has a certain currency. It is sometimes asserted that it represents the official position of the Catholic Church in America—an assertion that is erroneous.

Without pausing to analyze the merits of this view, which are considerable, I shall simply say that it does not furnish us with all the premises necessary for the constitutional development that is needed today. The historical canon of original legislative intent is important, but it is hardly decisive in this present matter. What will be decisive is the full American tradition itself. The problem is to assemble all the relevant principles, bring them into harmony, and give them whatever rightful development they may need in the light of today's realities.

One constitutional principle, of course, is "no establishment of religion"; it is otherwise called the principle of "separation of church and state," or in more recent language, the principle of "no aid to religion." These three concepts are equivalent. But their concrete meaning is not self-evident. They are, in the words of Mr. Justice Frankfurter, "spacious concepts." Their content and implications require continuing re-examination and revision as new problems of application arise. And the tradition itself gives us three imperative norms to guide us in this matter of interpretation and application.

The first norm is the traditional concern to keep inviolate, in changing circumstances, the right to the free exercise of religion. This right is guaranteed by the same Amendment which legislates the separation of church and state. It is the more lofty provision, to which separation of church and state is instrumental. Therefore, it must be a primary judicial and popular concern to view the two clauses of the First Amendment in their right relation to each other.

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It is contrary to the American tradition to view separation of church and state as a categorical absolute, to be rigidly enforced, no matter what may be the effects on free exercise of religion.

Second, it is not permissible to read into the concept of separation of church and state a philosophy of hostility to religion. This principle was explicitly recognized by the Supreme Court in the Zorach case. The whole intent of the First Amendment was to protect, not to injure, the interests of religion in American society. Here there enters with its full force the fact also adverted to by the Court in the Zorach case: "We are a religious people whose institutions presuppose a Supreme Being." Lincoln put it more briefly in his famous phrase, "This nation under God." In America the separation of government and religion (to use Madison's favorite phrase, which is more exact than "separation of church and state") does not mean that government is hostile or even indifferent to the things of God. On the contrary, the tradition in America has been (again to use the words of the Zorach decision) that government "respects the religious nature of the people and accommodates the public service to their spiritual needs."

Here, in the concept of "accommodation" we have the third legal principle inherent in our tradition. It is simply an extension of the more general principle of the service-character of American government. In Lincoln's more concrete formula, ours is a government "for the people," for the service of their felt needs, for the promotion of their common good. It has never been the tradition in America for government in any of its agencies to regard the spiritual and religious needs of the people as being entirely outside the scope of its active concern. On the contrary, instances of government accommodating its public service to these needs are deeply imbedded in our constitutional history.

The two outstanding examples are, first, chaplaincies in the armed forces and the use of government funds for the construction of chapels for use by the military; and, second, the grant of tax ex-

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emption to properties of religious institutions. These are certainly instances of governmental aid to religion. They serve to illustrate the fact that the constitutional principle of "no aid to religion" cannot be regarded as an absolute.

It cannot be contended, as some writers wish to contend, that these and other instances of governmental aid to religion represent departures from tradition, violations of constitutional principle, survivals from the past that future "progress" will do away with. This is a wrong view. These examples are living reminders of what the tradition really is. They are entirely in accord with the full body of American principle in this matter of the relation of government and religion. In particular they illustrate the principle that governmental aid to religion is not unconstitutional when it represents a legitimate accommodation of the public service to the religious and spiritual needs of the people.

Such accommodation—or, if you will, such cooperation between church and state—has traditionally been regarded as permissible under conditions that are not difficult to define. One condition is that such cooperation should not infringe, but rather support, the right to the free exercise of religion. Another condition is that government responsibility for action in the particular matter should be well defined. These two conditions are particularly clear in the case of military chaplaincies. The men and women in the armed forces are clearly the objects of special governmental responsibility, not least in what regards their spiritual welfare. Hence, it devolves upon government to fortify the right to the free exercise of religion in the circumstances of military life.

This principle of accommodation served as a guide in the decision of the Zorach case. It appears in this statement of the Court: "When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions."

It is this, the best of our traditions, that now needs development

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meet the problem which educational and religio-social changes have made acute. The principle of the accommodation of the public service to the spiritual needs of our religious people is itself a spacious concept. Its development will afford the proper counterbalance to the presently overdeveloped doctrine of "no aid to religion." What it implies in the way of cooperation between church and state will bring into truer focus the presently exaggerated doctrine of separation of church and state. The result will be a more harmonious statement of the full American tradition of the right relations between government and religion.

The appropriateness of developing this doctrine of accommodation in the matter of government aid to religion in education can hardly be denied. We, as a people, are agreed that government should not undertake responsibility for the care of the sacred order of religious life; governmental responsibility is limited to a care for the freedom of religion. No other course is practicable or just, given our social situation of religious division. However, the special area of the school experience presents a different case. Government has assumed responsibility in this area; it has undertaken to promote, aid and support education. Moreover, it is precisely in this area of education that the spiritual needs of a religious people are today being sharply felt. Government cannot ignore these needs, on peril of a certain danger to itself; for the fortunes of free government are intimately linked to the fact of a religiously informed and virtuous citizenry. There is, therefore, every reason for applying in the area of education the fully developed principle of accommodation of the public service to the genuine spiritual needs of our religious people.

No one will deny that the problem of applying this principle will be difficult. It will not be easy to draw the line between constitutional accommodation of the public service in aid of religion in education, and unconstitutional aid to religion itself. Just as it will not be easy to determine where legitimate governmental sup-

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port of religious freedom ends and where illegitimate governmental establishment of religion begins. But this is precisely the type of constitutional adventure to which we are committed by the very nature of the American commonwealth. The jurisprudence for making the adventure successful lies to hand. It is a matter of having the intelligence and courage to make harmonious use of the principles available. The American tradition is a treasury. It is our responsibility to bring forth from it new things and old.

Under present circumstances this dynamic constitutional development must take place, step by step, on an ad hoc basis, through the process of litigation. There is the problem of declaring the public law. But there is also, as I intimated above, the problem of clarifying the public conscience. In an atmosphere of reasonable and factual argument unclouded by passion or prejudice, it must be brought to the attention of the American public that a massive problem still awaits solution. The most fatal thing would be the complacency of supposing that the problem of religion in education was finally settled by the McCollum doctrine of absolute and complete separation of church and state. So far from solving the problem, this doctrine has made it more acute. Until the problem is solved with all justice and realism the American ideal of ordered freedom, for which the Bill of Rights stands, will not have been achieved.

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