The Author’s Corner with Steven Green

the third disestablishment

Steven Green is the Fred H. Paulus Professor of Law and Affiliated Professor of History and Religious Studies at Williamette University. This interview is based on his new book, The Third Disestablishment: Church, State, and American Culture, 1940-1975 (Oxford University Press, 2019).

JF: What led you to write The Third Disestablishment?

SG: Many things led me to write The Third Disestablishment.  I have written extensively about the ongoing dynamic of religious disestablishment in the 18th and 19th centuries.  My thesis has been (and continues to be) that there were various levels of disestablishment — political, institutional, legal, cultural — and that they occurred in incremental steps and at different times.  In essence, disestablishment was not perfected with the enactment of the 1st Amendment and, quite clearly, there was never a consensus on what it meant.  The Third Disestablishment brings this narrative forward to the mid-20th century where the Supreme Court formally embraced separation of church and state as the meaning of the Establishment Clause.  The book examines the cultural forces behind this embrace.  I felt that this was a story that had not been fully told before.

I also wrote the book in order to explore the background of the ongoing controversy over whether separation of church and state is/was the correct model.  The book also seeks to address why separationism arose, then fell into disfavor, at least as a legal principle.   Finally, on a personal level, in my earlier career as a 1st Amendment lawyer, I encountered several of the figures and organizations discussed in the book, though in their much later years.  This motivated me to examine the initial dynamic that led them to become involved in this issue.

JF: In two sentences, what is the argument of The Third Disestablishment?

SG: The book responds to more recent interpretations that maintain that separation of church and state became a legal and popular construct in mid-century due chiefly to residual Protestant suspicions of Catholicism.  It also maintains that even in its heyday, church-state separation was a contestable and indeterminate concept, and that its demise both legally and culturally began much earlier than has otherwise been maintained.

JF: Why do we need to read The Third Disestablishment?

SG: While numerous books have been written on the development of church and state, this book provides a fresh perspective by interweaving the cultural and legal developments of the period into  comprehensive narrative.  It examines the cultural backdrop to the Court’s adoption of its modern church-state jurisprudence.  It explores the roles of leading figures of the time, including Reinhold Niebuhr, John Courtney Murray, Paul Blanshard, Cardinal Francis Spellman, Billy Graham, Norman Vincent Peale, John F. Kennedy, and several consequential Supreme Court justices.

JF: When and why did you decide to become an American historian?

SG: I have been interested in the interaction between religion and politics/law in US history since undergraduate school.  I made the decision to enter a history PhD program after practicing law for 4 years.   Since then, I have had an amazing career that has allowed me to do legal advocacy, teaching, and scholarship in the area of religion, law, politics and history. 

JF: What is your next project?

SG: I am writing a book for Cornell University Press in its religion in public life series on–you guessed it–the development of church-state separation in American history.

JF: Thanks, Steven!

What Becomes of Old and Unconstitutional State Laws?

In light of the attempt of some North Carolina legislators to create a religious establishment in the state, Brian Palmer, writing at Slate, asks if unconstitutional state laws “stay on the books forever?”

This comes up every now and then.  As Palmer points out, Texas has a law on the books criminalizing homosexual sex.  Several states, including my own Pennsylvania, have laws that forbid atheists from holding office.  Some of these laws remain on the books, while others are repealed.

Here is a taste of Palmer’s post:
 

If North Carolina were to officially declare a state religion, the courts would be more likely to intercede. Declaring a state religion isn’t a consequence-free declaration like picking a state bird, a state flower, or a state fossil. Naming a state religion is more analogous to erecting a Ten Commandments monument in the state Supreme Court building. Members of other religions could challenge the move on the grounds that it offends their belief system and suggests state preference for one religion over another.

North Carolina Republicans Want to Create a Christian Establishment

The framers of the North Carolina Constitution of 1776 made it abundantly clear as to what kind of people they wanted to serve in their new state government.  Article 32 states:

That no person who shall deny the being of God, or the truth of the Protestant religion, or the divine authority of either the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office, or place of trust or profit, in the civil department, within this State.

North Carolina did not have an official state church (Article 34), but they certainly had a very specific religious test oath for state officeholders. The NC Constitution defended religious freedom for all its inhabitants (also Article 34), but only Protestants were allowed to hold office. 

Nine current North Carolina GOP state legislators would like to return to the “golden age” of 1776. They recently passed a bill that would allow them to create a Christian religious establishment in the Tarheel State.  Here is the bill that they proposed::

SECTION 1. The North Carolina General Assembly asserts that the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.

SECTION 2. The North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools, or any political subdivisions of the State from making laws respecting an establishment of religion.

On one level, this bill does not call for the same religious test oaths required by the 1776 Constitution.  On another level, it goes beyond the 1776 Constitution by calling for a religious establishment.

But I wonder what such an establishment of religion might look like?  Do these legislators want the state to collect tax money to support Christian ministers and organizations at the expense of non-Christian ministers and non-Christian religious organizations? If this bill were to pass, would the leaders of the new established church try to re-install test oaths?  Would schoolchildren who are not Christians be forced to sit through Bible reading and prayer in public schools?

The sponsors of the bill are aware of the fact that they can’t establish a state religion in North Carolina without violating the United States Constitution.  (The passing of the 14th Amendment in 1868, and its 20th century application to religion in the states, makes a Christian establishment, or any other establishment of religion, unconstitutional).  So rather than try to reinterpret the Constitution to allow such an establishment (a tactic used by many “Christian nation” advocates), these legislators have decided to ignore the Constitution altogether.  Sounds to me like a modern-day form of nullification.

For those of you who know your American history, this all sounds very familiar. But before we start worrying about another nullification crisis, the bill needs to pass the North Carolina legislature.  And that is highly unlikely. (Thanks to my former student Jeff Erbig for calling this article to my attention).

By the way, all this is happening only days after it was decided that the Confederate flag would be removed from the North Carolina State Capitol.