Separation Strategies

by Edd Doerr

Of late there has been some blogging about strategies and priorities in defending separation of church and state. Following is a back story on this that has never before appeared in print.

In 1971 the Supreme Court ruled, in Lemon v Kurtzman, against Pennsylvania and Rhode Island laws diverting public funds to religious private schools. This was the Court's first ruling on this important matter and was followed by  three decades of similar rulings. Why was this the first such case? For the simple reason that from 1924 until 1968 taxpayers did not have "standing" in federal courts to challenge government spending believed to violate the First Amendment church-state separation principle.  But in 1968, in Flast v Cohen, a case argued in part by Sen Sam Ervin (D-TN), the Court granted standing. Unfortunately, the Court at the same time also upheld a NY law that allowed the state to pay for textbooks for use in parochial schools.

Let's back up to 1969 or 1970 (I do not keep a diary, so dates are approximate). I was the Sunday morning speaker on church-state separation and religious freedom at a Unitarian church in Cleveland. After the service a guy identified himself as a member of the Ohio state board education and told me that a lawsuit by Americans United in state court challenging some state aid to church schools was so badly handled that it was such a sure loser and the separationists on the state board were worried. When I returned to Washington, where I had been on the Americans United staff since 1966 (I edited their Church & State magazine from 1970 to 1982), I reported the matter to AU executive director Glenn Archer, who was not worried. However, Gaston Cogdell on the AU staff (he was the guy who had recruited me for the AU staff) was plenty worried. At his own expense he flew to Ohio (where he had served as a minister) and tried to persuade the plaintiff in the case to drop it. Archer fired Cogdell forfhis and said he would fire me if I did  not quit defending Cogdell. Later the suit was just allowed to die.

Meanwhile, Pennsylvania had passed a law to divert a tiny percentage of the cigarette tax to the support of parochial schools and Rhode Island had passed similar legislation. AU's Archer sent staff attorney Franklin Salisbury to Harrisburg to find a local attorney to  challenge the state law. The very day that Salisbury (a lousy attorney in my opinion) was in Harrisburg the ACLU and other groups were meeting in Philadelphia to plan a major coalition lawsuit. So Archer sent me to Philly for that meeting. On my return to Washington I urged Archer not to file a separate suit but to join the coalition suit in Philly. The attorney retained pro bono (as I recall) by the coalition was the distinguished Henry Sawyer, the attorney who had won the Schempp case on school prayer in the Supreme Court in 1962. Archer agreed with me and the rest is history.

Lemon (and the famous "Lemon test" held for three decades, until the by then conservative Supreme Court issued the disastrous ruling in 2002 upholding the Ohio school voucher plan.

The moral of all this is that, with a conservative Supreme Court, legal actions defending separation need to be carefully planned. Priorities need to be decided on. Reckless kamikaze lawsuits, like Newdow's sure loser challenge to "under God" in the Pledge of Allegiance could have serious irreversible negative consequences for the whole country.

I invite comments.

(Doerr is president of Americans for Religious Liberty [arlinc.org] and has been a full-time church-state separation activist for nearly 50 years.)