On The Court House Lawn

BRIAN: This is BackStory. I’m Brian Balogh. It’s the season for holiday displays, which means it’s also the season for disputes over separation of church and state. Is it OK to have a Christian symbol on government property? Well, maybe, as well as you’ve got Jewish symbols too. Or at least that’s what one army marching band figured during World War II.

KEVIN SCHULTZ: Until the marching band starts playing, “Ein Keloheinu,” the Jewish song. And the band forms the Star of David. And the rabbi looks at the Star of David and starts crying supposedly, according to the story.

BRIAN: But the government isn’t always so generous to minority faiths. In the 1920s, it tried to ban religious dances on Indian reservations.

TISA WENGER: Native people were very upset, understandably. And they said, this is not accurate. This is not what our dances do. Our dances are good for our people.

BRIAN: Coming up on BackStory, the history of church and state in America.

MALE SPEAKER: Major funding for BackStory is provided by the National Endowment for the Humanities, the University of Virginia, the Joseph and Robert Cornell Memorial Foundation, and an anonymous donor.

PETER: From the Virginia Foundation for the Humanities, this is BackStory. with the American Backstory hosts.

BRIAN: Welcome to the show and thanks for tuning in. I’m Brian Balogh. And I’m here with Peter Onuf.

PETER: Hey there, Brian.

BRIAN: And Ed Ayers is with us.

ED: Well, hello, gentlemen.

BRIAN: Let’s begin today with a holiday fable.

PETER: For decades, if you visited the town of Leesburg, Virginia, in December, you would see a nativity scene on the courthouse lawn right downtown.

ED: The creche featured full-sized statues of the Virgin Mary, the baby Jesus, and the three wise men gathered around the manger. It was a beloved tradition, says Washington Post reporter, Caitlin Gibson.

CAITLIN GIBSON: Leesburg is a town with a deep sense of history and tradition. And people who have lived here for decades or even generations are accustomed to things being done a certain way. And change is hard.

ED: In 2009, Loudon County, where Leesburg is the county seat, announced that it was ending the holiday display. And many Leesburg residents were outraged.

FEMALE SPEAKER: It’s been a decades long tradition of a nativity scene and tree at the courthouse grounds, which fired up the debate over separation of church and state and freedom of speech.

PETER: Soon, hundreds of county residents began lobbying to keep the creche. Some showed up at county board meetings wearing Santa hats. But the hubbub also drew in area residents who were not as fond of the traditional creche.

CAITLIN GIBSON: And because Loudon is a growing community, there is increasingly diverse and eclectic group of people with a range of different opinions. And the American Atheists in particular, they’re very serious about what they’re trying to convey. And they don’t think there should be a county-sponsored religious display period.

ED: As a compromise, Leesburg decided to issue 10 permits on a first come, first serve basis to anybody, secular or religious, who wanted a display. And here’s where the story takes to turn.

PETER: The organization American Atheists thought that religious displays had no place on government property. So they tried to get all 10 permits. That way there wouldn’t be any display on the courthouse lawn– no creche, no menorah, nothing at all. But they only got 7 of the 10. So instead, they decided to set up some, well, creative displays.

CAITLIN GIBSON: I believe the first display to cause a bit of a stir was a mannequin Luke Skywalker.

ED: The next year, there was a nativity scene in which a Flying Spaghetti Monster hovered over the baby Jesus. The display read, touched by an angel hair.

CAITLIN GIBSON: Things really hit a fever pitch in 2011, when a skeleton Santa Claus was mounted on a cross and displayed on the lawn. And that had been intended to convey society’s obsession with consumerism. But it really upset passing people on the sidewalk.

PETER: It actually wasn’t the atheists who put up the crucified Santa. But complaints poured in anyway. So Loudon County decided to ditch the permit system and revert to a county-sponsored nativity scene. But this time, they included some nods to non-Christians, like a menorah, reindeer, and a healthy non-crucified Santa.

ED: The new display satisfied the traditionalists, since it brought back the beloved creche. But as Leesburg becomes bigger and more diverse, there are more and more people in the town who just don’t want a county-sponsored display at all.

CAITLIN GIBSON: They are members of this community now. And I think that they also feel like a want the courthouse that’s at the center of this historic town to reflect their sense of what’s right as well.

ED: This year, creche, menorah, and Santa are already ensconced on the Leesburg courthouse lawn. But Caitlin Gibson says that’s probably not a permanent resolution.

CAITLIN GIBSON: I am keeping an eye on it, yes. I definitely am.

PETER: Leesburg, of course, is just one of many American towns trying to figure out how to navigate the holiday season without endorsing any one religion.

ED: And these controversies extend well beyond the annual creche versus menorah debate. This fall, the Supreme Court heard arguments in a potentially landmark case from a small town in New York. The question at stake, is it constitutional to open town meetings with a Christian prayer?

PETER: So today on the show, the long, uneasy, and still unsettled history of church and state in America. The first amendment says that Congress can neither establish a state religion nor prohibit Americans from practicing their own religions. But what does it mean to establish a religion or to practice a religion? How have those meanings changed over the centuries? And what counts as a religion anyway?

BRIAN: But first, let’s go back to the beginning. What do the founders actually mean with this business about separation between church and state? On cable TV, it all depends on who you ask. Take this recent exchange on CNN between former Senator Rick Santorum and former Governor Howard Dean.

RICK SANTORUM: I don’t think that’s what the First Amendment stands for. And I don’t–

HOWARD DEAN: The First Amendment says Congress shall establish no law regarding the establishment of a religion.

RICK SANTORUM: Or the free exercise thereof.

HOWARD DEAN: That’s pretty clear. Your employer doesn’t get to tell you–

RICK SANTORUM: Or the free exercise thereof. You didn’t finish the First Amendment.

PETER: Part of the confusion comes from the fact that the First Amendment’s reference to religion has two parts. There’s the free exercise clause. That’s the part that says Congress can’t prohibit people from practicing their religions. This is the part conservatives tend to focus on.

For liberals on the other hand, the Establishment Clause raises the hot button issues. That’s the part that prohibits an establishment of religion by the government.

DAVID SEHAT: Liberals believe that that, in fact, separated church and state. And so the genius of the First Amendment and the American arrangement is that church and state was separate. Religion flourished in the United States. And we had religious peace.

BRIAN: That’s historian David Sehat, author of The Myth of American Religious Freedom. He says that both sides of the political spectrum tell stories about the separation of church and state that, you know, just are not quite right. We’ll get to the conservatives in a little bit. But first, let’s explore the liberal take on church and state. Sehat says there’s one big problem with the idea that the First Amendment sets up a hard separation.

DAVID SEHAT: A lot of people don’t realize that the Bill of Rights didn’t apply to the states. If you read in, in fact, the First Amendment, it says very clearly Congress shall not make a law. It’s a prohibition against Congress but not states. And so when the First Amendment was passed, there was six states that paid institutional churches. That is they paid churches out of the public treasury.

But beyond that there were lots of laws the protected religion in various ways. There were blasphemy laws. So you couldn’t blaspheme Jesus Christ or God in general. There were Sabbath laws protecting what you could do and not do on Sunday. And so in many ways, both subtle and not subtle, states favored Christianity and often Protestant Christianity in particular.

ED: And Sehat says this leads us to a key text that many liberals misunderstand– Thomas Jefferson’s letter to the Danbury Baptists. In the early 1800s, Connecticut was one of the states that had an established religion– congregationalism. Baptists in the town of Danbury were persecuted because, although Christian, they weren’t congregationalists.

BRIAN: In 1802, President Jefferson wrote to the Danbury Baptists to say he hoped that someday Connecticut would stop persecuting them. He said there ought to be a wall of separation between church and state. But Jefferson couldn’t actually do anything for the Danbury Baptists, because the Bill of Rights didn’t apply to the states. So Connecticut’s laws weren’t unconstitutional.

PETER: Connecticut did actually separate its government from the Congregational Church in 1818. But the Supreme Court did not apply the Establishment Clause to the states until 1947. And when they did, the court first invoked Jefferson’s wall of separation.

DAVID SEHAT: What that meant was prior to 1947 if, let’s say, Connecticut decided, we made a mistake back in the early 19th century. We actually should be paying churches. They could have done so theoretically. But in 1947, the court said, actually no, you really can’t do that, because the First Amendment and the Establishment Clause applies to the states. And they used that phrase, the wall of separation, to explain what the Establishment Clause of the First Amendment meant.

PETER: And David, you’d be inclined to say with many conservative commentators that that’s bad law. That is, of course, distorting history.

DAVID SEHAT: Yeah. I don’t know that I would call it bad law, because the court actually gave a sort of narrative that claimed that church and state had been separate the entire time up until that point. And they were just clarifying. And I would call it bad history in support of a defensible law.

PETER: Yeah. We don’t care about law. History is what matters to us on this show. So let’s pivot to the conservatives. What do they claim about the historic original relationship between church and state in America?

DAVID SEHAT: Conservatives look back at the past. And they see all these connections between church and state, the ways in which Christianity or Protestant Christianity were protected. And they say that that was put in place for a reason, that that’s how the founders, in particular, wanted to support religion, that they did, in fact, create the First Amendment to allow for the public support of religion. And so conservatives claim that this is part of the genius of the American arrangement that the First Amendment allowed the freedom of religion that liberals really are trying to overturn by a kind of aggressive secularism.

PETER: OK. So David, what’s the downside with this conservative position?

DAVID SEHAT: Well, I think conservatives, when they look back at the past, it’s too often tinged with nostalgia. And they don’t acknowledge the real coercion inherent in many of the arrangements of the past. If you say to somebody, you can’t blaspheme God, what you’re really saying is, you need to keep your religious beliefs, even if that includes the disbelief in God. You have to really keep that to yourself, because any kind of expression or disbelief could, in some cases, be interpreted as blasphemy. And if you take and you spread that over and look at all the different laws and ways in which states supported or protected Christianity, you begin to see a kind of coercive society that I think even many conservatives if they really confronted would pull back from.

PETER: And where does that leave us? So let’s say that every judge in America read your book and came away with the wisdom that that book imparts. Where would we be then?

DAVID SEHAT: I think that we would realize that there are not the easy answers in the past that many judges seem to imply in their opinions, because the meaning of the First Amendment in the past was contested. And the place of religion in the United States has long been problematic. And it seems today that we’re just in the latest chapter. And so it does seem like, at least in contemporary political debate, so often when people start talking about the past, what they’re really doing is projecting their desired vision for the future somehow back on the past. And that’s a complicated maneuver, because the past is often very different than we might imagine it.

PETER: David Sehat is a historian at Georgia State University and the author of The Myth of American Religious Freedom.

ED: It’s time for a quick break. When we return, an election year wedge issue in 1832. Should the government ask the nation to pray to God to stop a plague?

BRIAN: You’re listening to BackStory. We’ll be back in a minute.

PETER: We’re back with BackStory. I’m Peter Onuf.

ED: I’m Ed Ayers.

BRIAN: And I’m Brian Balogh. Today on the show, we’re looking at the ways past generations of Americans have argued over how to connect or disconnect church and state.

ED: An early version of that argument played out in the summer of 1832. A cholera epidemic had just struck New York City. And it was hell. Victims suffered, losing fluid so quickly that their skin puckered and turned blue. The disease was responsible for more than 1,000 deaths in the first week alone. And then it began to spread, first to Philadelphia and then as far as New Orleans.

PETER: Worst of all, no one knew what caused it. The most obvious answer was that cholera was a scourge sent by an angry God, which meant that a public health crisis was also a religious crisis.

ED: So a church in New York wrote to President Andrew Jackson with a plea. He should declare a national day of fasting, humiliation, and prayer. National repentance, they thought, might ease the country’s suffering.

PETER: But Jackson politely declined. He thought that religion ought to stay completely separate from matters of state, even in the midst of a crisis.

BRIAN: I sat down with historian Adam Jortner to discuss how that simple disagreement turned into a political firefight. Adam told me that the church’s request didn’t seem that controversial at the time. Other presidents, after all, had declared days of prayer in the past.

ADAM JORTNER: These fast days had been approved by George Washington approves one. James Madison approves one. So it’s not that no one in the federal government had ever said, no, you can’t have a fast day.

BRIAN: So what changed? They sound like heavy hitters, Washington and Madison.

ADAM JORTNER: Well, Jackson is a pretty heavy hitter too. And he is not in favor of organized religion. I’m going to come right out and say that. He’s a religious guy. But Jackson is just a guy who doesn’t like organized churches generally. When he’s in the Tennessee legislature in 1796, he actually votes for a bill that says, if you’re a minister, you can’t hold political office. I think he really also did believe that there should be this total separation between church and state.

BRIAN: Now, I note that 1832 is a presidential election year. Did presidential politics have anything to do with this decision and what followed?

ADAM JORTNER: Well, no sooner has Jackson turned the reform church down than Henry Clay, who’s his arch rival and who everybody knows is going to run against him in 1832, Henry Clay stands up in the Senate. And he asks them to pass a bill asking for a day of fasting for God to avert the cholera.

BRIAN: And we need to point out this is before C-SPAN and Fox News.

ADAM JORTNER: That is correct. But it’s not before newspapers. And I think that Clay is aware that Jackson has offended some people, particularly in the state of New York. And Clay knows he has got to win New York State. New York State has a third of the electoral votes he needs to win. And he probably picked this up because he knows that New York State is also where an enormous number of revivals have broken out in the 1820s and early 1830s.

This is where Charles Finney, the great evangelist, has been holding his huge revivals. And he knows there are potential voters there. But he also knows that he, Henry Clay, is well known as a card-playing gambler. He has been involved in duels. He’s a drinker. So he’s not exactly the kind of person these religious types are going to vote for.

So he stands up and says, I am a member of no religious sect. I regret that I am not. I wish that I was. And I might be a drinker and a gambler. But I think the state should recognize God and ask God for his protection.

BRIAN: So hold on. Time out here. We’ve got Jackson, the religious man, who doesn’t like organized religion. And we have Clay, who acknowledges that he’s not a religious man, wishes that he were. But he introduces this legislation. Adam, is this a wedge issue?

ADAM JORTNER: I think it is. I think it is an attempt to go to voters and say, if you are religious, you should vote for me. And nothing else matters. Clay is trying to tap into a group of voters in New York State who haven’t yet turned to politics. And it’s a way of connecting the fear they’re having over the cholera to the vote they’re going to cast in November.

BRIAN: So tell me what each side goes on to argue here. I assume there’s a big back and forth.

ADAM JORTNER: Once Clay’s bill passes the Senate and not too much opposition, but when it gets to the house, Jackson’s allies are ready. And they accuse Clay of trying to subvert religion, of trying to become a tyrant. Actually, one of Jackson’s supporters accuses Clay of prostituting our holy religion.

BRIAN: How did they explain the fact that previous presidents had done the very thing that they now thought was an abomination?

ADAM JORTNER: There’s a guy named Julian Verplanck, who’s a congressman from the State of New York. And he actually points out that when Madison proposes a fast day in 1812, people got up. And they started preaching about politics from the pulpit. And what you get is people, if they didn’t like Madison’s administration, they railed against the government. If they did like Madison, they supported the government. And this was not the way churches should be operating. And I think that that experience of a fast day– it would’ve been 20 years ago at that time– really affected the tenor of this debate that they didn’t want to have any more fast days.

BRIAN: Was this just a battle inside the beltway? I know we didn’t have a beltway then. Or is this something that people on the ground were really passionate about?

ADAM JORTNER: I think that it’s hard to tell from a distance of so many decades. But if you read what the newspapers are saying, you see this deep passion about preserving the separation of church and state. One of the newspapers actually says that Clay is a priest. It says Priest Clay was trying to amalgamate church and state.

People read those newspapers. And they would gather together. And then they would read it out loud to each other. So I think that there’s a real feeling in Jacksonian America that separation of church and state is what makes democracy work.

BRIAN: So how does this work out?

ADAM JORTNER: Well, Jackson wins. The House defeats Clay’s resolution. And so it goes down. And then in November, Clay goes down. He gets crushed by Jackson. But there is an afterthought to this, which is that a lot of state governor’s pass fast day resolutions in the wake of Clay’s failure. And a lot of those pass.

So I do think that the supporters of the fast day did end up getting some of what they wanted. They do get some governors to pass their resolution. And ultimately, those Presbyterians and Baptists and Methodists in New York State do become part of Clay’s future party, the Whig party. They’re strong supporters of the Whigs in later elections.

BRIAN: So what does this tell us about the use of religion for partisan purposes?

ADAM JORTNER: I think the lesson of this story is that, first of all, it’s not that the arguments about church and state are religious people wanting more religion in politics and then irreligious people wanting less. I think there are religious people on both sides of the issue. It’s possible to be religious and be afraid of church involvement in politics. And I was shocked at the extent to which politicians were willing to go on record to defend the separation of church and state and didn’t feel the need to apologize for it, that it was actually a positive good.

But I also think this is a story where politicians go looking for religious voters. Sometimes church and state in the 21st century is conceived of as religious people want solutions to their problems. They go into politics. But it happens the other way around too. Politicians can need supporters. They look around. And they find religious voters. And they say, ah, we will give you something that you want. We’ll have more religion in politics. And then you’ll be part of our coalition. And you’ll support our other objectives.

BRIAN: So Adam, tell me, how did the rates of cholera in states that passed resolutions compare to the rates of cholera in states that decided not to pray?

ADAM JORTNER: There is no difference that I know of.

BRIAN: Thank you for clearing up the record. And thanks for joining us on BackStory.

ADAM JORTNER: Thanks, Brian. It’s my pleasure.

BRIAN: Adam Jortner is a historian at Auburn University. We’ve reached the point in the show where we take some calls from you, our listeners. Nick, welcome to BackStory.

NICK: Thanks, guys. How are you doing?

BRIAN: Great.

PETER: So give us a big question.

NICK: So I was really curious to find out about the history of religious institutions as political lobbying organizations. An example that came to mind for me was the support of the Church of Latter Day Saints for California’s Proposition 8 a few years ago, where the church made some monetary and in kind donations. And it was really credited with a lot of the success of the ballot measure. And I remember that sparking a lot of debate about the status of the Mormon Church being tax exempt. So I guess my question is, is that overt support by a church or religious organization common in US history? Or is it mainly recently that we see churches pushing for specific legislation?

PETER: So Nick is asking whether churches have become more active in politics. I’ll just throw this out. And then you guys can get serious. And that is the question is almost turned around, Nick, because the question is, how does the church get out of the state? The default, in the great Western European tradition, is for the church to be involved and the church and state to be intimately related.

In the US, you have the special situation of this disestablishment, partly because of a multiplicity of sects and denominations. But in fact, the Americans are a very Christian people. And of course, they want to express their Christianity in the public square.

ED: And it didn’t take long, Peter. So they go to all that trouble to separate church and state in the Constitution and the founding. But as early as the 1820s, a mere moment in historical time, they start lobbying the federal government to take a stand. And the first real instance of that is the campaign to stop Sunday delivery of the mail, a Sabbatarian impulse. And so I do think, Brian, that the Christian church is an early example of what it would take to mobilize people in the civic realm but not the political realm to change the political realm. So it didn’t take long for it to be reinserted.

BRIAN: Yeah, I wouldn’t argue with that at all, Ed. And I’m going to step out of character and urge you to go on and talk about the role of religion in really what was a broad social movement, the Temperance Movement.

ED: Oh, yeah. Well, it was probably the oldest reform movement in American history is temperance. People have been talking about it ever since there was a nation. And so it’s big in the antebellum period. It’s overlapping with the efforts to save the Sabbath. But it also overlaps with feminism, with anti-slavery, with the peace movement. After the Civil War, when it seems that alcohol is an even greater scourge, it picks back up in the 1870 with the Women’s Christian Temperance Union. And it explodes across the country, Brian.

BRIAN: Yeah. So Nick, I think we’re beginning to answer your question, which is that church groups have always been involved in politics unless they themselves decide to withdraw from that sordid world. And I think that one of the reasons that it seems to people today that the surge of religious involvement is relatively new is that about the beginning of the 20th century, a lot of evangelical groups, and almost all the examples that Ed and Peter have been talking about, have come from evangelical groups. Those evangelical groups voluntarily withdrew from active engagement in politics.

They said, look, we’re going to focus on being good Christians. We’re going to leave politics to others. That really began to change in the 1960s and the 1970s when, once again, evangelical groups became involved in issues. Well, the big one was abortion. There was prayer in the school. The issue that you started your question with, gay marriage, is an issue that lots of Christian groups have become very involved with. I should say religious groups, because there are other religions that have gotten engaged with this as well. And then, statistically, just to answer your question, we know that in the last 45 years or so, the number of groups that are lobbying on religious issues, it’s increased fivefold.

NICK: So as the churches have become either less politically engaged or more politically engaged, has that ever caused a rift between the church as a bureaucratic institution and the church as a community or the church as a congregational institution?

PETER: Yeah. Well, of course, you mentioned the Mormons, the LDS. And they have responded to the broad changes in public opinion on fundamental issues, such as a race, that is that African Americans can participate at the highest levels. Groups have to adapt. But I think it works two ways, Nick. That’s the way I’d put it. And that is in a democracy, you have to ask who the people are and where do they get their ideas from. And churches are the center of this. It’s natural then to exercise that opinion formation to try to press legislators and governments to follow the right way.

ED: So Nick, do you think that the instance you’re talking about of Proposition 8 is somehow different? Are we in a new era?

NICK: Maybe not. It sounds like there’s a pretty well-established precedent of religious involvement in politics.

BRIAN: Yes. We won him over to history.

PETER: Yeah, Nick, I think it’s a terrific question. And what it comes down to is that everything in some sense is political.

BRIAN: Thank you, Nick. Great question.

NICK: You’re welcome.

ED: In 1852, the Mormon Church publicly acknowledged that plural marriage, also known as polygamy, was part of their faith. And this did not go over well with many Americans outside of the Utah territory. Many worried that Mormon elders were ensnaring young women into marriages with much older men.

BRIAN: So in 1862, Congress passed the Morrill Anti-Bigamy Act, which banned polygamy in the territories. By the 1870s, federal officials were arresting prominent Mormons for polygamy. This didn’t sit well with church leaders. So they decided to challenge the constitutionality of the Morrill Act. To do that, they needed an appealing defendant.

ED: The Saints soon settled on a young man named George Reynolds. He was young, handsome, mild-mannered. And he only had two wives.

SARAH BARRINGER GORDON: And I think they thought he belied the stereotype of the fat old guy with a big beard who had six wives, each one younger than the last.

BRIAN: This is Sarah Barringer Gordon, a law professor at the University of Pennsylvania. She says that by the time the trial began, the Mormon leaders had changed their strategy. The new plan was to try to get Reynolds acquitted.

SARAH BARRINGER GORDON: When witnesses were called, they forgot that they knew George Reynolds. His neighbors had no idea whether he was known as a polygamist. No one could remember the wedding ceremony and so on. And it looked, during the first day of the trial, as though Reynolds might get off, because there simply was no evidence at the trial to prove that he was, in fact, a polygamist.

ED: But I’m guessing that something happened. This sounds like a great courtroom drama. So then what happened?

SARAH BARRINGER GORDON: Well, I’m afraid something did happen. There was a smart young lawyer who had showed up in the territories shortly after the Civil War. He was sitting in the courtroom. And he saw this whole prosecution going south. And he suggested to the marshal that he go find the second Mrs. Reynolds and bring her to the court, which is what happened. She appeared in the courtroom.

And as it also happens, she was visibly pregnant at that time. Her name had not been given as a witness. So she, apparently, was entirely unaware that everybody had forgotten they knew George Reynolds and that that was the program for the day. And she marched down, took the oath, sat in the witness box, and proudly identified herself as the second Mrs. Reynolds and the guy who had forgotten whether he ever knew Reynolds or had performed a wedding ceremony that he, in fact, had married them. And she provided the evidence that convicted her own husband.

ED: The Mormons, I take it, after the appearance of the second Mrs. Reynolds, lose.

SARAH BARRINGER GORDON: Well, they called for an adjournment toward the end of the day. And the next morning, they arrived in court with a new defense, saying that, yes, they admitted that Reynolds was, in fact, married to more than one woman. But, and here’s where the Constitution really comes in, but he was a member of the LDS Church. And as a loyal Latter Day Saint, if he was given the opportunity to practice polygamy, he must do so or be damned, so that this was a religious practice.

ED: So my understanding is that this makes it all the way to the Supreme Court?

SARAH BARRINGER GORDON: Eventually it did. The case was argued in November 1878 and decided in early January 1879. ’79

ED: And so by this time, I assume the central question has been distilled in some way. And what does it boil down to? And what does Reynolds argue?

SARAH BARRINGER GORDON: Well, there were several arguments made on his behalf. His lawyer was George Washington Biddle. He argued strenuously that the federal government had no jurisdiction over such domestic relationships in the territories. And at the very end, he tossed in the claim that, by the way, this was a religion and that was a separate defense. But most of the time, he talked about technical legal claims of who had power where.

And in the opinion of the Supreme Court, they virtually ignore all that jurisdictional stuff and say, well, really, the defense here is based on religion. And Reynolds claims that his religion commands him to behave this way. And so he has an excuse for not following the criminal law that the Congress has validly enacted. And then they say, if we let a guy like this redefine what counts as marriage and what counts as criminal behavior for himself just based on his religion, we’re introducing anarchy. This is not what the Free Exercise Clause is about. We can’t let this happen.

ED: So Sarah, how does this case fit into the evolving understanding at the separation of church and state in our country?

SARAH BARRINGER GORDON: One crucial component of this separation is one we talked about few moments ago– the fulcrum of marriage. Is marriage a civil institution? Is it a sacred institution? Who gets to decide? And what the Supreme Court said was, well, marriage has sacred elements. But it is a civil undertaking.

And the secular government gets to decide its components and regulate marriage so that state and federal legislatures have power to write statutes about adultery, to talk about inheritance, and so on. These are civil undertakings. So Reynolds is a landmark from the perspective of marriage, as well as the perspective of religion.

ED: So how do people around the country react to this decision then? They said, that’s Utah. Who cares? Or did they recognize that this has significance for all of us? And how did Mormons react to it?

SARAH BARRINGER GORDON: Well, The New York Times ran a headline, “Little Georgie Goes to Jail.” The case was very, very popular around the country. In other words, this seemed like a humanitarian result, the protection of women from the sexual deprivation of men. The reaction within Utah was extremely outraged, a sense of betrayal of the religious liberty that Mormons argued was itself divinely inspired. The Constitution as this spectacular document that had created space for a new revelation the Book of Mormon to enter.

And one of the leaders of the church said that this is typical of a nation ripened for damnation. And they weren’t going to give in. And only in 1890, 11 years after the Reynolds case was decided and a huge swath of prosecutions later, thousands upon thousands of cases, did the leader of the Mormon Church, President Wilford Woodruff at that time, issue what was known as a manifesto, not quite a revelation, but a very important religious communique, saying that he would no longer counsel the saints to disobey the criminal laws of the land. And gradually, over years, the jangled nerves began to settle. And Utah was finally admitted as a state in 1896.

ED: Sarah Barringer Gordon is a law professor at the University of Pennsylvania. She’s the author of the forthcoming book, The Place of Faith, about disestablishment in the 19th century.

BRIAN: It’s time for another short break. But don’t go away. When we get back, what do you get when a rabbi, a minister, and a priest get together? A legal revolution.

PETER: You’re listening to BackStory. We’ll be back in a minute.

BRIAN: This is BackStory. I’m Brian Balogh.

ED: I’m Ed Ayers.

PETER: And I’m Peter Onuf. Today on the show, we’re looking at the wall of separation between church and state.

ED: In the late 19th century, one place that separation of church and state definitely did not apply was in United States Indian policy. The Bureau of Indian Affairs wanted Indians to assimilate into white American culture. And they figured the best way to do that was to spread Protestant Christianity.

BRIAN: But to make Indians into good Protestants, the BIA had to stamp out indigenous spiritual practices. One of these was dancing. And in the early 1920s, the commissioner of Indian Affairs, Charles Burke, decided to crack down. He sent a letter to the superintendents of all Indian reservations, asking them to stop “so-called religious ceremonies involving dancing.”

MALE SPEAKER: I regard such restriction as applicable to any dance which involves acts of self-torture, immoral relations between the sexes, the reckless giving away of property, the use of injurious drugs or intoxicants, in fact, any disorderly or plainly excessive performance.

BRIAN: The bureau soon ran into resistance, especially from the southwestern Pueblo tribes. I asked Yale Divinity School historian, Tisa Wenger, to walk me through the Pueblo reaction to the dancing ban.

TISA WENGER: Native people were very upset. And they said, this is not accurate. This is not what our dances do. Our dances are good for our people. Our dances are a celebration of our traditions. We are continuing the ways of our forefathers.

And so for that reason, it became important for them to find a way to defend them against these attacks that were not only coming from the government agents that there was a whole barrage of negative publicity all across– this was debated in newspapers and national news magazines. They had also become a favorite cause of some of the cultural anthropologists and cultural modernist artists and writers of the period. There was an artist colony–

BRIAN: Well, if you’ve won over the cultural anthropologists, you’ve got it made, right? Perhaps one of the most powerful interest groups in America, the cultural anthropologists.

TISA WENGER: Well, I don’t know about that. But they certainly had some influence and an increasing amount of influence in this period in the 1920s. And they’re the ones who initially said, look, this is a real religious freedom issue. And they wrote articles in Survey magazine.

BRIAN: Now, was it their religion? Is this the first time that they played the religion card?

TISA WENGER: Native Americans more generally had for a very long time been playing the religion card, as you put it, had been saying these bans on our dances are a violation of religious freedom. The Pueblo Indians are a little bit different case, because they had been colonized by Spain and become Catholic. And as an accommodation with the Franciscan missionaries, it worked for them to say Catholicism is our religion. And these traditions are our customs. But now, under this new regime and new US policies, that no longer worked. And because of the framework of the US Constitution and the First Amendment, now, framing them as religion and making this religious freedom argument becomes very important and very effective.

BRIAN: But do they make their claims? And now, I’m talking about the Pueblos and their supporters. Did they make their claims in constitutional terms? Did they speak in that language?

TISA WENGER: Yeah. I’m going to read an example of the language that they used. This was a letter that was written by All Pueblo Council on April 9, 1923. In your message to the Indians, you make mention of our dances and about the time that we take in the display of same. One way of worshiping our God is by dancing and singing, praying and fasting. You know better than we do that the Constitution of these United States gives the right and liberty to all people to worship according to the dictates of their own conscience. And then they refer, again, to the First Amendment, saying that this circular is illegitimate and should not be enforced and that they are going to continue their dances. And they’re not going to obey this directive.

BRIAN: So what happens? Who wins?

TISA WENGER: Yes. This worked for the Pueblo Indians at the time. Essentially, it became such a huge public relations nightmare for the government, partly because of these cultural modernist allies who had the contacts and the media relations savvy to put out this cry nationwide– the government is suppressing Indians’ religious freedom. And then they publicized the statements from the Pueblo Indians criticizing the government for violating its own constitutional principles of religious freedom. The government backed down. Commissioner Burke said, we really can’t enforce this in the Pueblos. And the agents on those reservations backed down, because it had become such a public relations issue.

PETER: Is that the end of the story?

TISA WENGER: That is not the end of the story. There’s a more complicated implication. The government officials were accusing the Pueblo Indians of violating the separation of church and state in their structures of their tribal governments, because tribal governments were run by leaders who were known by the term cacique. They were behind the scenes leaders and were also the leaders of the ceremonial life.

And so that was attacked by government officials and assimilationists as a theocratic system. And it’s ironic, isn’t it? Because as we were talking about at the beginning, the Bureau of Indian Affairs is working closely with Christian missionaries. So that can appear as a violation of separation of church and state on the part of the US government. At the same time, these government agencies are saying to the Pueblo tribes, you all need to modernize your systems and implement separation of church and state and end your theocratic tribal governments.

BRIAN: So is it fair to say that by introducing the constitutional defense of religion the Pueblos inadvertently undermined some of traditional ways in which religion and governance had been blurred in their way of life?

TISA WENGER: Yes. That’s right. But I don’t quite like the way that you said that.

BRIAN: Good. Then you say it correctly.

TISA WENGER: Because it assumes that there are separate spheres of religion and government. And I think that way of separating out our world is so deeply ingrained in our culture that it’s hard to conceive of different ways of– but I think a better way to say that might be that modern distinctions between religion and government are forced on them but also that they, in some ways, chose to adopt them in order to defend aspects of their tradition. In other words, it was something of a victory for them, if a partial victory if a kind of constrained victory, because they were then able to continue their ceremonial practices, so that, yeah, their traditions were transformed. But you can see it as a creative adaptation that enabled them also to survive.

BRIAN: Tisa Wenger is an associate professor of religious history at Yale Divinity School. She’s the author of We Have a Religion: The 1920s Pueblo Indian Dance Controversy and American Religious Freedom.

PETER: And now to a story of cultural perception of religion and the legal change it sparked.

BRIAN: We begin in the 1910s and ’20s, when many Americans still saw the country as a Protestant nation. Discrimination against Jews and Catholics was widespread. Country clubs posted signs that said, no dogs or Jews allowed. When a Catholic ran for president in 1928, he was greeted with burning crosses at campaign stops.

ED: By the 1920s and 1930s, a group called the National Conference of Christians and Jews began to push back. The NCCJ brought together Protestants, Catholics, and Jews to advocate for a more pluralistic understanding of American religion. Their slogan was, the brotherhood of man under the fatherhood of God.

BRIAN: One of the NCCJs signature programs in the 1930s was its tolerance trios. Each trio sounded like the start of a joke. A rabbi, a Protestant minister, and a Catholic priest would travel across the United States. They stopped at hundreds of towns to talk to the public about faith. These scripted conversations were called trialogues.

KEVIN SCHULTZ: One of the questions that the Protestant minister would ask the rabbi is, don’t the Jews simply want to take over all the economic organizations in the United States?

BRIAN: I get asked that every day, Kevin.

KEVIN SCHULTZ: Right.

ED: This is Kevin Schultz, a historian at the University of Illinois at Chicago. He says that the trialogues were explicitly designed to debunk stereotypes that Jews control the country’s banking system, say, or that Catholic politicians were just the Pope’s puppets. For many Americans, it was the first time they had ever seen a non-Protestant.

BRIAN: The NCCJs work was effective. And its focus on a tri-faith America, not just a Protestant America, became especially appealing during World War II. With Nazi Germany on the horizon, there was a real reason for Americans to want to be tolerant.

KEVIN SCHULTZ: So if Hitler is a bigot and a racist who’s trying to recreate this perfect order based on a single Aryan image, what Roosevelt and the United States did more generally was try and create an image of itself as a more tolerant place that was embracing its own differences. And of course, in the 1930s, ’40s, and ’50s, the color line was still a very difficult issue to navigate, which one could argue it still is. But it was especially so in the ’30s, ’40s, and ’50s.

But an easier tolerance and easier pluralism dealt with religion in no small part because of the work that the National Conference of Christians and Jews had done in the 1930s with their tolerance trios and things like that. So during the war effort, the NCCJ is invited to go to every single military installation, not only in the United States, but around the world, and preach their gospel as it were to 9 million soldiers. And there’s some fantastic stories of the military actually openly embracing this vision of good Americanism.

There’s one story, one of my favorites, takes place in Fort Benning, Georgia. The tolerance trios had been there on the base for almost a week. And it was their last day. They were going to take off the next morning. And as a token of their appreciation, at the half-time of the flag football game that the base was putting on, the marching band came on. And the announcer said, and to honor the NCCJ, who’s been on our grounds for the last week, we perform the following two songs.

And so the marching band starts playing, “Ein Keloheinu,” which is a song on the uniqueness of God, a Jewish songs. And the band forms the Star of David. And the rabbi looks at the Star of David and starts crying, supposedly, according to the story.

BRIAN: This has got to be the first marching band Star of David, right, in sports annals?

KEVIN SCHULTZ: And then once that song is over, the marching band goes into motion again to form a giant cross. And they start playing “Onward Christian Soldiers.” And according to the rose-colored glasses of the NCCJ practitioners who were there, all the soldiers in the stands stood up and clapped for many minutes while the priest, the rabbi, and the minister all cried watching this honor that they had been bestowed.

BRIAN: Kevin, do you think that this kind of exposure to the language of the Judeo-Christian tradition endures after World War II, leaves some kind of lasting legacy?

KEVIN SCHULTZ: I absolutely do, I think, in part because 9 million soldiers had been exposed to this kind of language. And it really does help fashion a new idea of what America is. After the war, it becomes well recognized that we are a Judeo-Christian nation, whatever that may mean. But what it certainly must mean is that it’s no longer good Americanism to discriminate against Catholics or to discriminate against Jews or to punish people for what religions they believe in.

BRIAN: You’ve argued that that foundation, the Judeo-Christian foundation, creates the catalyst for what will become a more secularized state. Could you explain how that works?

KEVIN SCHULTZ: Sure, absolutely. Once a lot of Americans recognize that we’re no longer a Protestant country, for example, once you have things like Emily Post’s Etiquette Guide talking about how you should respond to an invitation to a circumcision if you don’t happen to be Jewish. Or should you send Christmas cards to non-Christian people? The answer, by the way, is yes, you should. But you should refrain from sending explicit cards that detail the nativity or any Christian message.

BRIAN: I’m glad I have time to operate on this advice before I send my cards out, Kevin.

KEVIN SCHULTZ: We try to help. But once this becomes the standard operating procedure for American life, all of a sudden, people look at all these arenas of American life– schools, business practices, housing. And they say, how can we live in an environment that is chock full of these subtle discriminations when we have this new conception of what the United States is? And not only do people have this awakening, but they actually call their lawyers. And they sue on behalf of this new idea. And most of the activity happens around schools.

BRIAN: And these are public schools, I’m assuming.

KEVIN SCHULTZ: Yeah. They’re all public schools, of course, because that’s the arena where Catholics, Jews, and Protestants will meet. And the result is by the early 1960s, so many cases had come before the various courts that the Supreme Court had decided that the United States was confronting an issue about separation of church and state.

The country didn’t want to be overtly anti-religious. That wasn’t following the best American traditions. But it also had a hard time in an increasingly plural nation deciding what religions to honor. So they were really faced with two choices. We can either honor all religions. Or we can honor publicly none.

BRIAN: So in a way, pluralism succeeded. But in its very success, the multiplicity of religions it seems led the court to simply slam the door on any religion at all in the schools.

KEVIN SCHULTZ: Absolutely. And that’s one of the great ironies of this. It’s perhaps best illustrated by this court case from 1962, Engel versus Vitale, where a tri-faith organization, Protestants, Catholics, and Jews, got together in New York State and put together a prayer that they thought would represent and acknowledge all three of their faiths. And it began by, Almighty God was the phrase they used. And then they went on to thank the Almighty God for his good graces.

That prayer was challenged. And it went all the way to the Supreme Court. And by 1962, the Supreme Court recognized that despite the fact that it was a tri-faith arrangement to come up with this prayer that it was not good at all for the state, as represented by the schools, to endorse any kind of prayer. So in an effort to initially make Protestants better Protestants, Catholics better Catholics, and Jews better Jews, which was one of the NCCJs early missions, they actually opened up the door for a nation that was safe for all faiths and, as we’re seeing increasingly today, people of no faith at all.

MALE SPEAKER: Ladies and gentlemen, church and state.

BRIAN: Kevin Schultz is a historian at the University of Illinois at Chicago and a fellow at the Tanner Institute for the Humanities at the University of Utah. His book is called, Tri-Faith America.

PETER: That’s going to do it for us today. But we’ve got plenty of extras online. Pay us a visit at BackStoryRadio.org. And let us know where you think the line between church and state ought to be. You can also check out a call with a listener about the role of religious organizations and pressing for political change. As always, you can find a lot of other BackStory extras on our Facebook, Twitter, and Tumblr pages. Our handle is BackStoryRadio. Don’t be a stranger.

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ED: BackStory is produced by Tony Field, Jess Engebretson, Nina Earnest, Andrew Parsons, and Jesse Dukes. Emily Charnock is our research and web coordinator. And Jamal Millner is our engineer. Our intern is Abe Shanck. BackStory’s executive producer is Andrew Wyndham. Thank you so much for listening.

BRIAN: Major support for BackStory is provided by the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, the University of Virginia, Weinstein Properties, an anonymous donor, and the History Channel– history made every day.

FEMALE SPEAKER: Brian Balogh is Professor of History at the University of Virginia. Peter Onuf is Professor of History Emeritus at UVA and Senior Research Fellow at Monticello. Ed Ayers is President and Professor of History at the University of Richmond. BackStory was created by Andrew Wyndham for the Virginia Foundation for the Humanities.

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