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THE POLITICAL THEOLOGY OF JUSTICE HUGO BLACK

  • Brett Bertucio (a1)

Abstract

Associate Justice Hugo Black is often considered one of the giants of twentieth-century American religion clause jurisprudence. Especially regarding the Establishment Clause, Black sought to leave his mark on precedent. Previous biographers and legal scholars have noted the influence of his own religious convictions on his legal reasoning. I extend this line of inquiry but argue that Black's decisions enshrine a more concrete, substantive view of religion and political life than has previously been acknowledged. By drawing primarily on archival research regarding Justice Black's reading, correspondence, and religious membership, I argue that we can best understand his religious thought as a species of political theology, one I term syncretic civic moralism. In brief, Justice Black viewed the ideal religion as one free of doctrinal claims and primarily supporting prosocial behavior and civic loyalty. After outlining the impact of his theology on his landmark opinions, I conclude by suggesting some of the consequences of Black's theo-political jurisprudence for contemporary American establishment debates.

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1 Hitchcock, James, The Supreme Court and Religion in American Life, vol. 1, The Odyssey of the Religion Clauses (Princeton: Princeton University Press, 2004), 9098; Hitchcock, James, The Supreme Court and Religion in American Life, vol. 2, From “Higher Law” to “Sectarian Scruples” (Princeton: Princeton University Press, 2004), 61. Everson v. Board, 330 U.S. 1 (1947); McCollum v. Board, 333 U.S. 203 (1948); Torcaso v. Watkins, 367 U.S. 488 (1961); Engel v. Vitale, 370 U.S. 421 (1962). In Everson, a 5–4 Court upheld a New Jersey program that reimbursed parents of both public and private school students for public bus fares. Many of the recipients sent their children to Catholic parochial schools. The case was the first to apply the Establishment Clause of the First Amendment to the states under the 14th Amendment. McCollum struck down an Illinois “released time” program whereby Protestant, Catholic, and Jewish religious leaders were given classroom time and space to conduct religious education during the school day. Black's decision in Torcaso invalidated a Maryland law requiring public officials to declare a belief in God to be eligible for office. His decision in Engel struck down a New York law requiring public school teachers to begin the school day with a composed “nonsectarian” prayer. The prayer read, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.”

2 Hitchcock, The Supreme Court and Religion in American Life, 2:10, 13–15.

3 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). This case involved the state of Missouri's decision to exclude a Lutheran preschool from participation in a grant program that provided tire scraps for use in playgrounds. The Court ruled that the school's religious affiliation could not bar it from participation.

4 Newman, Roger K., Hugo Black: A Biography (New York: Fordham University Press, 1997), 521; Ball, Howard, Hugo L. Black: Cold Steel Warrior (New York: Oxford University Press, 1996), 128–29. Several of Black's colleagues eventually backed down from critiques of the McCollum decision. Harold Burton to Hugo Lafayette Black, undated memo, box 295, folder 2, Hugo Lafayette Black papers, 1883–1976, Library of Congress. Subsequent archival references are cited as “Black papers,” and correspondence with Hugo Black are signified by his initials, “HLB.” Felix Frankfurter to HLB, February 11, 1948; HLB to F. Frankfurter, February 12, 1948. Black papers, box 295, folder 2.

5 Dunne, Gerald T., Hugo Black and the Judicial Revolution (New York: Gallery Books, 1978), 20.

6 Everson, 330 U.S. at 15–16; McCollum, 333 U.S. at 210; Torcaso, 367 U.S. at 492–93; School District of Abington Township v. Schempp, 374 U.S. 203, 216 (1963). The Schempp ruling, which came one year after the Engel case, struck down a Pennsylvania law requiring public schools to begin the day with the reading of at least ten verses of the Bible, without comment.

7 Dennis, Everette E., Gillmor, Donald M., and Grey, David L., eds., Justice Hugo Black and the First Amendment: “‘No Law’ Means ‘No Law’” (Ames: Iowa State University Press, 1978).

8 Newman, Hugo Black, 435.

9 McCollum, 333 U.S. at 238. On the rather “personal” nature of mid-century religion clause cases, see [Alito, Samuel A. Jr.], “The Released Time Cases Revisited: A Study of Group Decisionmaking by the Supreme Court,” Yale Law Journal 83, no. 6 (1974): 1202–36.

10 Kislowicz, Howard, “Judging Religion and Judges’ Religions,” Journal of Law and Religion 33, no. 1 (2018): 4260.

11 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 644 (1943) (Black, J., concurring). The Barnette ruling reversed an earlier decision, Minersville School District v. Gobitis, 310 U.S. 586 (1940). The Gobitis case was brought by Pennsylvania Jehovah's Witnesses who asked that their children be excused from mandatory flag salute exercises at school. When the Court ruled against them, public outcry led a slightly different set of justices to reverse the ruling a mere three years later.

12 Hamburger, Phillip, Separation of Church and State (Cambridge, MA: Harvard University Press, 2004); Perry, Barbara A., “Justice Hugo Black and the ‘Wall of Separation Between Church and State,’Journal of Church and State 31, no. 1 (1989): 5572; Sekulow, Jay Alan, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions (New York: Rowman & Littlefield, 2006). Black was reticent to release his personal papers for public use, as future historians might be tempted to misconstrue certain decisions. No doubt, his quarrel with Sidney Ulmer over the use of Justice Harold Burton's conference notes in accounts of the Brown deliberations made him suspicious of academic interpreters. Black eventually burned many of his own conference notes. His children called the bonfire event, “Operation Frustrate the Historians.” See Jill Lepore, “The Great Paper Caper,” New Yorker, December 1, 2014; Hugo Black, Jr.: My Father: A Remembrance (New York: Random House, 1975), vii. I approach this article with the assumption that knowledge of a justice's personal views will illuminate rather than cloud our understanding.

13 Hawley, Joshua D., “Return to Political Theology,” Notre Dame Law Review 90, no. 4 (2015): 1631–62.

14 Conkle, Daniel O., “The Path of American Religious Liberty: From the Original Theology to Formal Neutrality and an Uncertain Future,” Indiana Law Journal 75, no. 1 (2000): 136; Witte, John Jr. and Nichols, Joel A., Religion and the American Constitutional Experiment, 4th ed. (New York: Oxford University Press, 2016), 2440; Garnett, Richard, “The Theology of the Blaine Amendments,” First Amendment Law Review 45, no. 2 (2004): 4584. Eric Gregory provides a helpful four-part typology of approaches in political theology. He distinguishes between studies of religious influence on politics, investigations into the theological underpinnings of political theory, theological reflections on the place of political movements in salvation history, and ethnographic examinations of the fluidity between democratic and religious practices. These works might fall under the first of the four strands in Gregory's typology. My approach falls into the second category. See Gregory, Eric, “Christianity and the Rise of the Democratic State” in Political Theology for a Plural Age, ed. Kessler, Michael Jon (New York: Oxford University Press, 2013), 99107, at 99–101.

15 The introduction of Paul Kahn's new work offers an excellent summary of the career of Schmitt's work and its recent reception. See Kahn, Paul W., Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011); Schmitt, Carl, Political Theology: Four Chapters on the Concept of Sovereignty, trans. Schwab, George (Chicago: University of Chicago Press, 2005).

16 Schmitt, Political Theology, 35, cited in Kahn, Political Theology, 1. For example, see Lilla, Mark, The Stillborn God: Religion, Politics, and the Modern West (New York: Alfred A. Knopf, 2007); Cavanaugh, William T., Migrations of the Holy: God, State, and the Political Meaning of the Church (Grand Rapids: Eerdmans, 2011).

17 Kahn, Political Theology, 18.

18 Gregory, “Christianity and the Rise of the Democratic State,” 99–101.

19 Black, Hugo Lafayette, A Constitutional Faith (New York: Alfred A. Knopf, 1968).

20 Newman, Hugo Black, 521.

21 Van der Veer Hamilton, Virginia, Hugo Black: The Alabama Years (Baton Rouge: Louisiana State University Press, 1972), 7478; Dunne, Hugo Black and the Judicial Revolution, 268.

22 Zorach v. Clauson, 343 U.S. 306, 315 (1952) (Black, J., dissenting). This case dealt with a New York “released time” program. Unlike the Illinois program in McCollum, the New York program allowed students to leave school grounds for religious instruction during the day. The Court voted 6–3 to uphold the program.

23 Engel v. Vitale, 370 U.S. 421, 432 (1962). See Newman, Hugo Black, 521–23.

24 Suits, Steve, Hugo Black of Alabama: How His Roots and Early Career Shaped the Great Champion of the Constitution (Montgomery: NewSouth Books, 2005), 4350, 111–12, 220–31, 457.

25 Newman, Hugo Black, 365, 521.

26 Hugo Black, Jr., My Father, 172; Newman, Hugo Black, 521.

27 Perry, “Justice Hugo Black and the ‘Wall of Separation between Church and State,’” 60.

28 Howard Ball also points to the Jeffersonian characteristics of Black's thought. See Ball, Howard, “Hugo Black: A Twentieth Century Jeffersonian,” Southwestern University Law Review 9, no. 1 (1977): 1049–68.

29 Sekulow, Witnessing Their Faith, 209–33.

30 See generally Hamburger, Separation of Church and State, 422–75.

31 David Sehat, The Myth of American Religious Freedom (New York: Oxford, 2010), 6. As I explain later, my thesis directly contradicts Sehat's contention that the Vinson and Warren Courts represented a reprieve from the “moral establishment.”

32 Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 35 (2004) (O'Conner, J., concurring). In this case a California man objected to the recitation of the Pledge of Allegiance in public schools, because it contains the words “under God.” Justice O'Conner was concerned that suits might be brought in objection to any trace of religion in public life. While I am aware that merely a trace of religious thought in a justice's jurisprudence should not be cause for alarm, I believe Black's case is an exceptional one.

33 Sullivan, Winnifred Fallers, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2005); DeGirolami, Marc O., The Tragedy of Religious Freedom (Cambridge, MA: Harvard University Press, 2013). I discuss the relevance of this study to Sullivan's and DeGirolarmi's work in the concluding section.

34 Black's correspondence and conversations with his eldest son, Hugo Jr., contain innumerable words of advice regarding romantic relationships and personal finance. See Black papers, box 3, folders 1–5; box 4, folders 1–2. His notoriety as an autodidact impressed both his clerks and colleagues in the Senate and on the Court. Newman, Hugo Black, 125–26, 200–01, 415, 445–46; Meador, Daniel John, Mr. Justice Black and His Books (Charlottesville: University Press of Virginia, 1974), 18.

35 Black, Hugo Lafayette and Black, Elizabeth, Mr. Justice and Mrs. Black: The Memoirs of Hugo L. Black and Elizabeth Black (New York: Random House, 1986), 21.

36 Suits, Hugo Black of Alabama, 50.

37 Black and Black, Memoirs, 8; Suits, Hugo Black of Alabama, 60.

38 Black and Black, Memoirs, 21.

39 Black Jr., My Father, 175; Black and Black, Memoirs, 33. Baraca Philathea, or simply “Baraca,” was an ecumenical movement founded by Baptist pastor Marshall Hudson in Syracuse, New York, in the 1890s. Through Bible study programs, Hudson sought especially to evangelize young men. For a history of the movement, see Olson, Ann Elizabeth, A Million for Christ: The Story of Baraca Philathea (Hamilton: Gordon-Conwell Theological Seminary, 2004).

40 Suits, Hugo Black of Alabama, 406.

41 Black Jr., My Father, 172. Howard E. Wahrenbrock to HLB, March 5, 1959. Black papers, box 53, folder 5.

42 Newman, Hugo Black 91–99.

43 See Newman, Hugo Black, 87–116; Suits, Hugo Black of Alabama, 511–17; Ball, Hugo L. Black, 60–63.

44 J. S. Conwell to HLB, October 1, 1937. Black papers, box 250, folder 6.

45 Lloyd Fogel-Songer to HLB, October 4, 1937. Black papers, box 250, folder 6.

46 Hamburger, Separation of Church and State, 430.

47 Black, Jr., My Father, 104.

48 Newman, Hugo Black, 71–76.

49 Newman, 83.

50 Newman, 83.

51 Evans, Hiram Wesley, “The Klan's Fight for Americanism,” North American Review 223, no. 1 (1926): 3363, at 45–47, quoted in Hamburger, Separation of Church and State, 407.

52 Ritual in the Second Degree of the Women of the Ku Klux Klan, 3, quoted in Hamburger, Separation of Church and State, 411.

53 Newman, Hugo Black, 254–60; Black and Black, Memoirs, 32, 230.

54 See Black papers, box 28, folders 6–8. Black later described himself as a “life member” of both the Masons and the Knights of Pythias. Black and Black, Memoirs, 32.

55 George C. Wallace to HLB, undated letter. Black papers, box 28, folder 8.

56 Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510 (1925). In Pierce, the Court invalidated an Oregon law that compelled attendance at public schools. Although popular memory often pins the Oregon initiative on a local Klan chapter, it was inspired by a wider Masonic resolution and sponsored by local Masons. See Abrams, Paula, Cross Purposes: Pierce v. Society of Sisters and the Struggle Over Compulsory Public Education (Ann Arbor: University of Michigan Press, 2009), 1617; Hamburger, Separation of Church and State, 431–32, 451. The Shriners are an appendant body of the Freemasons.

57 HLB to Fred Larkins, July 6, 1962. Black papers, box 354, folder 6.

58 David McCullough, “The Love of Learning” (Boston College Commencement Address, May 2008), in The American Spirit: Who We Are and What We Stand For (New York: Simon and Schuster, 2017), 145.

59 Black and Black, Memoirs, 21; Meador, Mr. Justice Black and His Books, 1–2; Newman, Hugo Black, 7–8.

60 Meador, Justice Black and His Books, 2, 8. See William Durant, “One Hundred Best Books for an Education,” America (December 1929).

61 Black papers, boxes 17, 18.

62 Meador, Mr. Justice Black and His Books, 10; Black Jr., My Father, 157–61.

63 Hamburger, Separation of Church and State, 452. Black owned four Blanshard titles: American Freedom and Catholic Power (Boston: Beacon Press, 1949); Communism, Democracy, and Catholic Power (Boston: Beacon Press, 1951); My Catholic Critics (Boston: Beacon Press, 1952); and The Irish and Catholic Power (Boston: Beacon Press, 1953). Meador, Mr. Justice Black and His Books, 55. Interestingly, Blanshard's works were published by the Unitarian-affiliated Beacon Press. Black also possessed a copy of a 1961 speech Blanshard delivered at the headquarters of the Daughters of the American Revolution. See Paul Blanshard, “Church-State Separation and the Future of Catholic Power” (Washington, DC: Protestants and Other Americans United for the Separation of Church and State, 1961), Black papers, box 286, folder 6. Philip Hamburger has characterized Blanshard's works as “liberal, genteel, educated anti-Catholicism” for the American literati; he notes, for example, that they received praise from no less than John Dewey. Hamburger, Separation of Church and State, 452. See also O'Neill, James, Catholicism and American Freedom (New York: Harpers, 1952).

64 Meador, Mr. Justice Black and His Books, 187–90. Black received The Prophet as a gift from a Denver attorney after their conversation at the 1941 Colorado Bar Association annual meeting. Frank L. Fetzer to HLB, March 10, 1943. Black papers, box 17, folder 12. On Josephine Black's religious inclinations, see Black, Jr., My Father, 169.

65 Black and Black, Memoirs, 13; Newman, Hugo Black, 9, 522.

66 Bellah, Robert et al. , Habits of the Heart: Individualism and Commitment in American Life (Berkeley: University of California Press, 1985), 32, 5662; see also Taylor, Charles, Sources of the Self: The Making of the Modern Identity (Cambridge, MA: Harvard University Press, 1989), 39.

67 On the radical individualism of The Pilgrim's Progress, see Furlong, Monica, Puritan's Progress: A Study of John Bunyan (London: Hodder & Stoughton, 1975); Newey, Vincent, “Bunyan and the Confines of the Mind,” in The Pilgrim's Progress: Critical and Historical Views, ed. Newey, Vincent (Liverpool: Liverpool University Press, 1980), 2148; Sim, Stuart and Walker, David, Bunyan and Authority: The Rhetoric of Dissent and the Legitimation Crisis in Seventeenth-Century England (New York: Lang, 2000). Galen Johnson argues that contrary to most scholarly accounts, Bunyan affirms the importance of at least an informal Christian community. Here however, the majority reading of Pilgrim's Progress as an acclamation for individualism in religion is most appropriate, as it seems most resonant with Black's thought. See Johnson, Galen K., Prisoner of Conscience: John Bunyan on Self, Community, and Christian Faith (Eugene: Wipf & Stock, 2007).

68 Bunyan, John, The Pilgrim's Progress, ed. Keeble, N. H. (New York: Oxford University Press, 1998), 3234, 59, 73–79.

69 Joseph B. Priestley to HLB, June 5, 1961; HLB to Priestley, June 13, 1961; Priestly to HLB, November 28, 1961; HLB to Priestly, December 13, 1961; Priestley to HLB, October 21, 1963; Priestley to HLB, June 20, 1971. Black papers, box 45, folder 4.

70 Priestley, Joseph, “Essay on First Principles,” in Priestley: Political Writings, ed. Miller, Peter (New York: Cambridge University Press, 1993), 1128, at 11, 60–61.

71 Priestley, “Essay on First Principles,” 67; Joseph Priestley, “The Importance and Extent of Free Inquiry in Matters of Religion,” in Sermons by Richard Price and Joseph Priestly (London: British and Foreign Unitarian Association, 1830), 81; Priestley, Joseph, Letters to the Inhabitants of Northumberland (Philadelphia: John Conrad & Co., 1801), 133. Priestley's use of “bigotry” may seem out of place to the twenty-first century reader. Its current use, often related to racial or religious animus, evolved from its original indication of strict adherence to religious teachings. Priestley's use, which carries a negative connotation, makes a theological claim in itself—that adherence to doctrine is irreligious. For more on parsing the historical uses of “bigotry,” see Ta-Nehisi Coates, “Bigotry and the English Language,” Atlantic (December 3, 2013).

72 Priestley, Joseph, Experiments and Observations on Different Kinds of Air (London: J. Johnson, 1775), xiv.

73 Priestley, Letters to the Inhabitants of Northumberland, 134–35.

74 Priestley, “The Importance and Extent of Free Inquiry,” 82–83; quotation from Priestley, Essay on First Principles (London: J. Johnson, 1771), 65.

75 Priestley, Essay on First Principles, 55; Bowers, J. D., Joseph Priestley and English Unitarianism in America (University Park: Pennsylvania State University Press, 2007), 2.

76 Priestley, “The Importance and Extent of Free Inquiry,” 85–86.

77 Priestley, Essay on First Principles, 70, 73, 77. All quotations from the Bible are from the New American Bible.

78 Priestley, Essay on First Principles, 78.

79 HLB to A. Powell Davies, August 2, 1952; Davies to HLB, August 20, 1952. Black papers, box 25, folder 2.

80 Black and Black, Memoirs, 84, 112; Black Jr., My Father, 13.

81 Black Jr., 175.

82 Black Jr., 173–76, quotation at 176.

83 For the role of Baptists in the disestablishment of state churches during the early republic, see Ragosta, John A., Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty (New York: Oxford University Press, 2010).

84 Wayne Flynt, Alabama Baptists: Southern Baptists in the Heart of Dixie (Tuscaloosa: University of Alabama Press, 2005) 83, 159–60, 274–75; John Howard Burrows, “The Great Disturber: The Social Philosophy and Theology of Alfred James Dickinson” (master's thesis, Samford University, 1970).

85 Several historians have observed that antipathy toward the federal government in general and the Court in particular stemmed from not only the Engel and Schempp decisions but from the twin Brown decisions and efforts to enforce school desegregation orders. See Zimmerman, Jonathan, Whose America? Culture Wars in the Public Schools (Cambridge, MA: Harvard University Press, 2005); Hartman, Andrew, A War for the Soul of America: A History of the Culture Wars (Chicago: University of Chicago Press, 2015). One might be tempted to read Black's defense of the Court as a defense of desegregation as well, but his correspondence with his Baptist visitors seems to indicate that he focused his remarks on religion clause questions alone.

86 Charles C. Maples to HLB, April 7, 1964. Black papers, box 51, folder 10.

87 HLB to Orba Lee Malone, April 3, 1964. Black papers, box 51, folder 10.

88 “The Influence of the Church,” Capital Baptist (April 2, 1964). Black papers, box 51, folder 10.

89 McDaniel, Charles, “The Decline of the Separation Principle in the Baptist Tradition of Religious Liberty,” Journal of Church and State 50, no. 3 (2008): 413–30.

90 HLB to Howard Bramlette, April 3, 1964. Black papers, box 51, folder 10.

91 Rogers, William, The Bloudy Tenent of Persecution for Cause of Conscience (Finsbury: J. Haddon, 1848), 294; Mullins, Edgar Young, The Axioms of Religion: A New Interpretation of the Baptist Faith (London: Forgotten Books, 2018).

92 Quotation from Black and Black, Memoirs, 92. For Josephine Black's funeral sermon, see Davies, A. Powell, “A Memorial to Josephine Foster Black,” in The Mind and Faith of A. Powell Davies, ed. Douglas, William O. (New York: Doubleday, 1959), 242–44, at 242. For details of Elizabeth and Hugo Black's wedding, see Black Jr., My Father, 204.

93 HLB to Muriel Davies, September 27, 1957. Black papers, box 25, folder 2.

94 Quotation from Howard E. Wahrenbrock to HLB, March 5, 1959. Black Papers, box 53, folder 5. For records of dinners, donations, and speaking engagements, see Black papers, box 53, folder 5: HLB to Howard Wahrenbrock, March 31, 1959; Leonard Ware to HLB, May 2, 1964; Duncan Howlett to HLB October 15, 1964; HLB to Howlett, Oct 13, 1964; HLB to Richard F. Gardner, December 11, 1964; HLB to Howlett, March 1, 1965: HLB to Richard F. Gardner, September 8, 1965. See also Program for A. Powell Davies Memorial Lecture Series, November 5, 1967; HLB to Russell B. Adams, December 11, 1957; HLB to A. Powell Davies, August 25, 1952. Black papers, box 25, folder 2.

95 Davies, A. Powell, The Urge to Persecute (Boston: Beacon Press, 1953), 136; Davies, “The Separation of Church and State,” in The Mind and Faith of A. Powell Davies, 126–30, at 126–27; quotation from William O. Douglas, foreword to The Mind and Faith of A. Powell Davies, 11–34, at 13.

96 Davies, “The Old Time Religion” and “The Sin of Piosity,” in The Mind and Faith of A. Powell Davies, 276–79, 281–82; Davies, A. Powell, to, prefaceThe Faith of an Unrepentant Liberal (Boston: Beacon Press, 1946), vii.

97 Davies, “Can We Be Good without Religion?” in The Mind and Faith of A. Powell Davies, 301–06.

98 Douglas, foreword to The Mind and Faith of A. Powell Davies, 19.

99 Davies, “Parting with the Theists,” in The Mind and Faith of A. Powell Davies, 272–74, at 274.

100 Davies, The Faith of an Unrepentant Liberal, 13–14.

101 Davies, “One World,” in The Mind and Faith of A. Powell Davies, 300–01, at 300.

102 Davies, “Memorial to Josephine Foster Black,” 242; see also Black Jr., My Father, 169.

103 Howlett, Duncan, Man against the Church: The Struggle to Free Man's Religious Spirit (Boston: Beacon Press, 1954), 187.

104 Howlett, Man against the Church, 200–02, quotation from 202.

105 Black, introduction to A Constitutional Faith, vi–xvii, at xi, xiii.

106 Black, A Constitutional Faith, 66.

107 MaGee, James J., Mr. Justice Black: Absolutist on the Court (Charlottesville: University Press of Virginia, 1980), 9, cited in Perry, “Justice Hugo Black and the ‘Wall of Separation between Church and State,’” 59.

108 Black Jr., My Father, 266.

109 Reid, John Phillip, “Law and History,” Loyola Los Angeles Law Review 27, no. 1 (1993): 193223, at 193.

110 For a comprehensive survey of critiques of Black's historical narrative in Everson, see Daniel L. Driesbach, “Everson and the Command of History: The Supreme Court Lessons of History, and Church-State Debate in America,” in Everson Revisited: Religion, Education, and the Law at the Crossroads, ed. Jo Renne Formicola and Herbert Morken (Lanham: Rowman & Littlefiled, 1997): 23–57.

111 Reynolds v. United States, 98 U.S. 145 (1879). This was one of the first cases involving religion to come before the Court. In Reynolds, the Court ruled that the right to free exercise of religion enumerated in the First Amendment did not protect Mormon men from prosecution under anti-polygamy laws.

112 Donald L. Drakeman, Church, State, and Original Intent (New York: Cambridge University Press, 2010), 48–63, 79–81, 109–118. Drakeman notes that while Rutledge drew a line between Virginia and the First Amendment via Madison's influence, his connection was still rather spurious.

113 HLB to Dallas Sells, July 10, 1964. Black papers, box 354, folder 6; Black and Black, Memoirs, 95.

114 Black and Black, Memoirs, 142–43, 242. The earlier occasion was especially noteworthy, as it came just weeks after Black voted in the majority in Abington v. Schempp (1963), which forbid the practice for teachers acting in a similar state capacity, albeit with a younger audience.

115 Christian Smith and Melinda Lundquist Denton, Soul Searching: The Religious and Spiritual Lives of American Teenagers (New York: Oxford University Press, 2009).

116 Interestingly, Peale sent Black a copy of Thomas James Norton's, The Constitution of the United States—Its Sources and Its Application (Boston: Little, Brown, and Company, 1922), in his capacity as the chairman of the Washington-based Committee for Constitutional Government. Norman Vincent Peale to HLB, January 7, 1944. Black papers, box 17, folder 12.

117 Everson v. Board, 330 U.S. 1, 13 (1947) (quoting Jefferson's 1786 “Virginia Statute for Religious Freedom”).

118 Everson, 330 U.S. at 12.

119 Engel v. Vitale, 370 U.S. 421, 433–34 (1962) (quoting Vernon Louis Parrington, Main Currents in American Thought, vol. 1, The Colonial Mind, 1620–1800 [New York: Harcourt, Brace, and Company, 1930], 76).

120 Engel, 370 U.S. at 432; Ball, Hugo L. Black 199; Newman, Hugo Black, 521–23.

121 Zorach v. Clauson, 343 U.S. 306, 319–20 (1952) (Black, J., dissenting).

122 Warner, Stephen S., “Work in Progress toward a New Paradigm for the Sociology of Religion in the United States,” American Journal of Sociology 98, no. 5 (1993): 1044–93; Ammerman, Nancy T., “Organized Religion in a Voluntaristic Society,” Sociology of Religion 58, no. 3 (1997): 203–15; Bloom, Harold, The American Religion: The Emergence of the Post-Christian Nation (New York: Simon & Schuster, 1992).

123 Zorach, 343 U.S. at 318–20.

124 Everson, 330 U.S. at 3.

125 Board v. Allen, 392 U.S. 236, 251–52 (1968) (Black, J., dissenting). Allen was one of the first of many cases dealing with in-kind aid to religious schools. Here, the Court upheld a New York law that required public school districts to loan textbooks to private schools within their boundaries, including religious schools.

126 Black and Black, Memoirs, 93–95; Black Jr., My Father, 176.

127 Cecil L. Horton to HLB, May 1, 1952. Black papers, box 313, folder 8.

128 McGreevy, John T., “Thinking on One's Own: Catholicism in the American Intellectual Imagination, 1928–1960,” Journal of American History 48, no. 1 (1997): 97131.

129 Everson, 330 U.S. at 9; Allen, 392 U.S. 236, 251 (Black, J., dissenting).

130 Everson, 330 U.S. at 24 (Jackson, J., dissenting).

131 Black Jr., My Father, 172. Black's correspondence with Hugo Jr. is almost entirely bereft of spiritual guidance. See Black papers, box 4, folders 1–3.

132 Zorach v. Clauson, 343 U.S. 306, 313 (1952).

133 Jean-Jacques Rousseau, On the Social Contract (New York: Dover, 2003), 89–97.

134 Torcaso v. Watkins, 367 U.S. 488, 496 n.11 (1961).

135 Black and Black, Memoirs, 33. While contemporary sensibilities identify this sentiment as charitable or reasonable, we should remember that soteriological doctrines do not constitute intolerance. This confusion was made during confirmation hearings for Russell Vought, deputy director of the Office of Management and Budget. See Emma Green, “Bernie Sanders's Religious Test for Christians in Public Office,” Atlantic, June 8, 2017, https://www.theatlantic.com/politics/archive/2017/06/bernie-sanders-chris-van-hollen-russell-vought/529614/.

136 Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), involved two members of the Native American Church who were denied unemployment benefits after being fired for using peyote as part of a religious ceremony. The Court ruled that facially neutral, generally applicable laws do not violate the Free Exercise rights of citizens, even if they place an undue burden on these citizens because of their religious belief. Public reaction to Smith set off a wave of bipartisan legislation aiming to shore up free exercise rights. State and federal “Religious Freedom Restoration Acts” (or RFRAs) are the result of this reaction.

137 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 643 (Black, J., concurring).

138 Hawley, “Return to Political Theology,” 1653–56.

139 Cavanaugh, Migrations of the Holy, 13–27.

140 Howlett, Man against the Church, 40.

141 Hugo Lafayette Black, transcript of “Justice Black and First Amendment Absolutes,” public interview held at the Biennial Convention of the American Jewish Congress, Hotel Waldorf Astoria, New York, April 14, 1962. Black papers, box 485, folder 1.

142 Sehat, The Myth of American Religious Freedom, 6.

143 Sehat, 227–54.

144 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2038–39, 2025–26 (2017) (Sotomayor, J., dissenting) (Gorsuch, J., concurring).

145 Zelman v. Simmons-Harris, 536 U.S. 639, 652–53 (2002). Here a divided Court upheld an Ohio voucher program that provided tuition for families to use at private schools, including religious ones.

146 See, for example, Garnett, Richard, “Do Churches Matter?: Towards an Institutional Understanding of the Religion Clauses,” Villanova Law Review 53, no. 2 (2008): 273–95; Garnett, Richard, “Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?,” St. John's Journal of Legal Commentary 22, no. 2 (2007): 515–33; Horwitz, Paul, “Defending (Religious) Institutionalism,” Virginia Law Review 99, no. 5 (2013): 1049–63; Horwitz, Paul, First Amendment Institutions (Cambridge, MA: Harvard University Press, 2013); Schauer, Frederick, “Towards an Institutional First Amendment,” Minnesota Law Review 89, no. 5 (2005): 1256–79.

147 Garnett, “Do Churches Matter?,” 273–74, cited in Horwitz, First Amendment Institutions, 3.

148 Many see the Hosanna Tabor and Hobby Lobby decisions as signaling a more “corporate” interpretation of civil liberties. See generally Schwartzman, Micah, Flanders, Chad, and Robinson, Zoë, eds., The Rise of Corporate Religious Liberty (Oxford: Oxford University Press, 2016).

149 Horwitz, First Amendment Institutions, 5–6.

150 Horwitz, First Amendment Institutions, 80–92. It seems that the Roberts Court is rather receptive to the idea of recognizing free exercise rights for corporate groups. The most prominent victories of “religious institutionalism” have occurred in the unanimous Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012), and the more narrowly decided Burwell v. Hobby Lobby, 573 U.S. 682 (2014). The former case retained a religious organization's right to hire according to principles of its mission, while the latter granted a religious exemption from mandated health care legislation requiring employers to cover contraceptive and abortifacient drugs.

151 Hamburger, Separation of Church and State, 14.

152 Of course, the right to absent oneself from symbolic pledges of loyalty to the state within public schools was recognized in West Virginia v. Barnette. However, the citizenship-formation aims of “secular” learning as outlined in Justice Jackson's Everson dissent regard the entirety of one's educational experience. The prevailing Rawlsian movement in citizenship education literature would affirm Cavanaugh's assertion that religious identity is inexorably in conflict with the aims of liberal democratic citizenship. See Gutmann, Amy, Democratic Education (Princeton: Princeton University Press, 1987); Macedo, Stephen, Diversity and Distrust: Civic Education in a Multicultural Democracy (Cambridge, MA: Harvard University Press, 2000); Callan, Eamonn, Creating Citizens: Political Education and Liberal Democracy (Oxford: Oxford University Press, 2004). On the danger that state aid programs may erode the religious identity of schools, see Brett Bertucio, “Voucher Programs: Problems and Promises for Catholic Schools,” Church Life Journal (May 4, 2018), https://churchlifejournal.nd.edu/articles/voucher-programs-problems-and-promises-for-catholic-schools/.

153 Sullivan, The Impossibility of Religious Freedom, 140–46; Orsi, Robert, Between Heaven and Earth: The Religious Worlds People Make and the Scholars Who Study Them (Princeton: Princeton University Press, 2006).

154 DeGirolami, The Tragedy of Religious Freedom, 1–10.

155 McGowan v. Maryland, 366 U.S. 420, 564 (1961) (Douglas, J., dissenting).

Keywords

THE POLITICAL THEOLOGY OF JUSTICE HUGO BLACK

  • Brett Bertucio (a1)

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