ACLU lawsuit declines to mention adverse U.S. Supreme Court rulings

Steven Miller

Because some families may choose religiously affiliated schools, says the American Civil Liberties Union, no Nevada families should be allowed to benefit from the state’s new Education Savings Accounts program.

Publicly, the ACLU attributes its anti-ESA hostility to a desire to safeguard what it asserts is a constitutional “wall separating church and state.”

In reality, however, that language appears nowhere in the U.S. or Nevada constitutions.

Rather, the view of the First Amendment that the organization is advancing is a cramped and discriminatory account that has been repeatedly rejected by the U.S. Supreme Court.

Conspicuously, the ACLU’s Nevada lawsuit ignores decades of the Court’s precedential rulings regarding the First Amendment’s Establishment of Religion clause.

Instead, the lawsuit pins the organization’s hope on language in Nevada’s Constitution barring the use of “public” funds for “sectarian purposes.”  

For its part, the U.S. Supreme Court set forth a detailed account of its view in its 2002 Zelman decision:

This Court’s jurisprudence makes clear that a government aid program is not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.

The ACLU, however, rejects the U.S. Supreme Court’s notion of neutrality, arguing instead that public programs should be held unconstitutional whenever families of faith benefit equally to families of secular mindset. That is what happens when a metaphor once used by Jefferson gets mechanically substituted for the actual words and meanings of the First Amendment.

As far back as 1947 the ACLU was arguing this line, when the U.S. Supreme Court was deciding Everson v. Board of Ed. of Ewing. The ACLU had wanted the Court to declare unconstitutional a New Jersey law authorizing the state to pay the bus fares of all school children.

The reason? The law did not exclude from its bounty children attending parochial schools.

The Court declined to embrace the ACLU’s animus toward religion. Justice Hugo Black, writing the majority opinion in Everson, said that the First Amendment “requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary.”

But that, indeed, is what the ACLU desires: that states continue to be adversarial to believers, continues to effectively double the financial burden on parents who seek for their children the safe, superior and morally vital education that the government-monopoly schools, shielded from competition, too often fail to provide — but for which parents of faith are nevertheless compelled to pay.

To walk the tightrope between either advancing or inhibiting religion, the Everson court and subsequent courts have settled upon two key questions: What was the purpose for which the law was passed, and what is its effect?

“[W]e continue to ask,” wrote Justice Sandra O’Connor for the Court in 1997’s Agostini v. Felton, “whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the ‘effect’ of advancing or inhibiting religion.” (Emphasis added.)

“To answer that question,” wrote Supreme Court Chief Justice William Rehnquist in 2002, “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools… and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals…”

So what about that alleged “wall separating church and state” supposedly “erected in Nevada’s constitution,” in the words of Nevada ACLU Director Tod Story at the lawsuit press conference?  

First of all, such language appears nowhere in either the U.S. Constitution or the Nevada Constitution. Instead, the metaphor was actually part of a carefully crafted political statement that Thomas Jefferson sent to the Danbury, Connecticut Baptist Association in 1802.

The Baptists had written Jefferson in 1801 expressing “great satisfaction” in his “appointment to the chief Magistracy in the United States.”

“In the new president,” notes Daniel Dreisbach, professor of justice, law and criminology at American University, the Baptists knew they had “an ardent defender of religious liberty, a matter of vital concern to a minority sect in a state dominated by a Congregationalist establishment.

“The Baptists were eager to broadcast their support for the new administration in Washington and to repudiate Jefferson’s critics in the bitter presidential campaign just ended,” continues Dreisbach. “The president, in turn, was receptive to the Baptists’ address, because it afforded him an opportunity to reassure pious constituents that, contrary to Federalist invective, he was a friend of religion.”

In their letter, the Baptists expressed some anxiety about their situation in Connecticut, where Congregationalism had been established as the official state church and as such enjoyed compelled tax support.

Because “our constitution of government is not specific,” worried the Baptists, “what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights.”

In this view, the Baptists were, for the moment, correct. Eventually however, in 1818, Connecticut would disestablish the Congregationalist church. But at the time the Baptists wrote Jefferson, certain clergymen in establishment denominations were likewise thinking that the First Amendment’s language — stating that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof” — still left them room to extend their particular denominations’ establishment status nationwide.

Jefferson himself had written as much to Benjamin Rush in 1800:

[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own … [t]he returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly.

Jefferson would go on, in his second inaugural address, in 1805, to make clear his view that the First Amendment barred Congress, and thus the federal government, from intervening at the state level in matters of religion:

In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the general [i.e., federal] government.”

And that appears to be the substance of his use of the metaphor in his letter to the Connecticut Baptists: That Congress and the federal government had been walled off from the states, in regard to matters of religion, which had been reserved to the states by the Ninth and Tenth Amendments.

And so Jefferson’s final draft to the Danbury Baptists said:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature would “make no law respecting an establishment of religion or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights.

In his book, Thomas Jefferson and the Myth of Separation, American University professor Daniel Dreisbach wrote, “It was a political statement,…carefully crafted to reassure Jefferson’s Baptist constituents in New England of his continuing commitment to their religious rights” as well as “to strike back at the Federalist-Congregationalist establishment in in Connecticut for shamelessly vilifying him as an ‘infidel’ and an ‘atheist’ in the rancorous presidential campaign.”

Dreisbach cites the work of James H. Hutson, the chief of manuscripts at the Library of Congress, who researched Jefferson’s papers for a 1998 exhibit on religion and the Founding Fathers.

Hutson observed that Jefferson’s own notes reveal that political considerations had guided his revision of the letter to the Baptists. Jefferson explained, for example, that a sentence in a preliminary draft was omitted from the final version “on the suggestion that it might give uneasiness to some of our republican friends.”

For these and other reasons, Hutson concluded that the president “regarded his reply to the Danbury Baptists as a political letter, not as a dispassionate theoretical pronouncement on the relations between government and religion.” In short, “it was meant to be a political manifesto, nothing more.”

Indeed, Jefferson himself never had the kind of animus against religion in the public square that the ACLU has regularly demonstrated. As long as it was voluntary and the state did not pick favorites, he saw no conflict between the First Amendment and making public property, public facilities and even government personnel available to religious bodies.

Indeed, notes Hutson, two days after writing the famed “wall between church and state” letter, Jefferson attended church services in the House of Representatives, a practice he would continue for years.

Jefferson also opened federal buildings, including the Treasury, the War Office, and the Supreme Court to religious services, observes Joseph LoConte, professor of history at The King’s College in New York City.

And Hutson, too, notes that, “It is no exaggeration to say that, on Sundays in Washington during Thomas Jefferson’s presidency, the state became the church.”

Allied with the ACLU in the lawsuit against Nevada’s Education Savings Accounts program is the organization, “Americans United for Separation of Church and State.”

When founded in 1947, however, and well into the Sixties, the organization used the name, “Protestants and Other Americans United for Separation of Church and State,” or POAU, and was explicit about its nativist and anti-Catholic agenda.

Founding member Glenn L. Archer actively taught that leaders of the Roman Catholic Church were more dangerous than Soviet communists, demanded that the citizenship of Catholic cardinals be revoked and asked the House Un-American Activities Committee to investigate the scope of Vatican “espionage” in the United States.

Nativist anti-Catholicism has a long history in the United States, which was overwhelmingly settled in its early centuries by European Protestants, many of whom brought to the New World attitudes from the Old. Studies suggest that, among the church-affiliated population at the time of the founding, only about 2 percent were Catholic.

Thus, when Catholics began migrating to America in substantial numbers, in the middle of the 19th century, culture shock was widespread on both sides.

Catholics naturally found the de facto Protestant character of the common schools oppressive. But when they sought equal treatment under the law for their own schools, it evoked nativist fury.

And so the religious wars that had beset Europe for centuries seemed to threaten 19th century America, too.

Next installment: The 19th Century, when “sectarian” actually meant “not Protestant.”

Steven Miller is managing editor of Nevada Journal, a publication of the Nevada Policy Research Institute. For more in-depth reporting visit and

Steven Miller

Senior Vice President, Nevada Journal Managing Editor

Steven Miller is Nevada Journal Managing Editor, Emeritus, and has been with the Institute since 1997.

Steven graduated cum laude with a B.A. in Philosophy from Claremont Men’s College (now Claremont McKenna). Before joining NPRI, Steven worked as a news reporter in California and Nevada, and a political cartoonist in Nevada, Hawaii and North Carolina. For 10 years he ran a successful commercial illustration studio in New York City, then for five years worked at First Boston Credit Suisse in New York as a technical analyst. After returning to Nevada in 1991, Steven worked as an investigative reporter before joining NPRI.

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