The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination

This essay focuses on the American Wall of Separation and consists of two parts, each premised on a recognition that the separation of church and state entails fundamental structural principles that organize a liberal democratic regime. Section I discusses the U.S. Constitution of 1789 and the First Amendment and identifies five key structural elements of its Wall of Separation: democratic legitimacy; non-delegation: limiting power, liberating governance; polity and its anti-balkanization principle; countervailing powers in civil society; and rational deliberation. The next section begins with Justice Thomas' plurality opinion in Mitchell v. Helms, facilitating direct aid to religious schools by proposing a wall-lowering equal protection-inflected interpretation of the Establishment Clause, while linking some elements of a structural understanding of that clause, as it limits aid to religious schools, to anti-Catholic animus. This essay rejects this historical claim that the politics and doctrine implementing the American Wall of Separation originate primarily in anti-Catholic animus (a claim, for example, made by Professor Hamburger in regard to the nineteenth century struggles over school funding and Justice Black’s opinion in Everson). This claim mistakenly characterizes much of the evidence as irrational prejudice against individuals and their religion, rather than as a popular constitutional commitment to liberal democracy. That commitment involved opposition to the goals of the ultramontane Church, which linked its establishment and authority as the one true church to its anti-liberal and anti-democratic politics. Section I complements this historical account because it provides the basis for an answer to the Church's claim of being unfairly and discriminatorily treated, which it made in response to its disestablishment in Europe (including the transfer of primary responsibility for education to the state) and the denial of aid to its school system in the U.S. The answer Section I affords is: what may be experienced as hostile treatment is the impact of a liberal constitutional structure of separation, which affects different religions differently. In contrast to this emphasis on the ultramontane Church's anti-liberal and anti-democratic politics, a coda traces the Catholic Church's acceptance in Vatican II of liberal democracy and a separation of church and state that it entails. This identifies the historical context in which the Supreme Court eventually authorized aid to religious schools; by the time of Helms, some justices could believe that many religious schools can, consistent with their free exercise of religion, offer secular value not only in providing a civic but also a liberal democratic education. An Appendix criticizes Justice Thomas' federal-jurisdictional view of the Establishment Clause, which would empty the Establishment Clause of the substantive meaning that can be derived from a reading of the constitutional text and structure, its history in which James Madison played a central role, and the “court of history” including the nation’s rejection of Alien and Sedition Act prosecutions in the election of 1800.