Church and State

Judicial Doctrines of Religious Rights in America.
by William George Torpey.
University of North Carolina Press. 376 pp. $5.00.

Separation of Church and State in the United States.
by Alvin W. Johnson And Frank H. Yost.
University of Minnesota Press. 279 pp. $4.50.

The attack by the Catholic bishops on the doctrine of the separation of church and state, as formulated recently by the US Supreme Court, should make these two excellent books welcome to persons concerned with the problem of clericalism. The thousands of cases summarized and analyzed are a demonstration of the over-reaching ambitions of churchmen for winning a maximum of state aid for religious teaching, institutions, creeds, and dogmas.

The books complement one another. While Torpey’s book devotes considerable space to tax exemption of property dedicated to sectarian uses, religious rights in marriage and divorce, religious rights in judicial trials, and the powers of religious societies, the book by Johnson and Yost places an emphasis on Sunday legislation and on church-state relations in education (Bible reading in schools, dismissed and released time, allowing credit for religious instruction, free textbooks, and transportation to sectarian schools).

As an illustration of clericalism’s tenacity, consider our experience with Sunday laws. The common law in England prohibited any form of worldly labor on Sunday, which was recognized frankly as a religious institution. After 1776 Sunday observance was enforced in the original states, and in early cases Sunday laws were upheld as the exercise of a right of Christian citizens to preserve public order and to promote the Christian Sabbath as a day of worship and meditation. Gradually, however, the ground upon which such laws were upheld shifted to the police power argument: Sunday laws are essential to the physical and moral well-being of society; to the preservation of health and the promotion of good morals—“periodical cessation from labor,” said a court, “will tend to both.” The justification of such laws was no longer the keeping of a day holy for religious observance, but the prohibition of labor on a day designated by the legislature. Thus a Georgia statute which forbade the operation of freight trains on Sundays was upheld by the US Supreme Court in 1896 as a civil regulation prescribing a rule of conduct, and not a religious statute. In 1914 the courts of Maryland allowed themselves to stretch the casuistry to almost the breaking point. Laws prohibiting baseball playing on Sunday were upheld on the ground that the noise and excitement may disturb the peace and quiet of the neighborhood. People then sought out secluded spots; but Baltimore officials passed an ordinance banning ball-playing even where no residents could be disturbed. The ordinance was upheld as a constitutional exercise of the “police power.”

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In Recent years the people of Wisconsin, California, Oregon, Arizona, and Wyoming have repealed such laws, ostensibly adopted in the interests of their physical and moral welfare. California and New Hampshire have adopted laws which require simply “one day of rest in seven”—the citizen may choose any day he likes for his day of rest.

Perhaps if the people of Israel were to possess the intimate knowledge of the American experience in church-state relationships that they could find in these books, they would reject the provisions in the Draft Constitution that declare that the Jewish Sabbath and Holy Days shall be days of rest and spiritual elevation “and shall be recognized as such in the laws of the country.” This provision, and others of a similar character, may prove to be a Pandora’s box; such laws bring strife and vexation; they plague the body politic and corrupt the organs of the spirit. But it is greatly to be doubted that the citizens of Israel will, with respect to this matter, seek to profit from American experience; for, as Professor Morris R. Cohen noted with his philosophic eye, “The human disinclination and inability to learn even from the most bitter experience is one of the outstanding facts of history.”

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