Can you imagine a judge — any American judge today — with the courage and the insight to write this:
“There is no such source and cause of strife, quarrel, fights, malignant opposition, persecution, and war, and all evil in the state, as religion. Let it once enter our civil affairs, our government would soon be destroyed. Let it once enter our common schools, they would be destroyed.”
These electrifying words were written 133 years ago in a decision handed down on March 18, 1890, by a Wisconsin Supreme Court justice in a ruling barring worship and bible reading in Wisconsin public schools.
Proponents of school prayer tiresomely argue that prayer and bible-reading in schools were an American tradition, until U.S. Supreme Court decisions in the early 1960s subverted it. Of course, this argument is untrue. One of the stronger historic decisions against bible-reading in public schools was Wisconsin’s 1890 “Edgerton bible case.”
State Ex Rel. Weiss v. District Board was brought by a group of Catholic parents in Edgerton, Wis., to halt reading of the King James Bible in school. Like many of the early cases establishing school/religion separation, it was brought by Catholic parents, at that time a minority facing Protestant domination and exclusion.
The school district argued that the bible was “nonsectarian” — with no material difference between the King James and the Douay (Catholic) versions. The superintendent had callously ordered that children who preferred could leave the schoolroom during bible-reading, as if that addressed the problem, and sniffed that only a “small proportion” of the 500 children were even Catholic. The district invoked the Northwest Ordinance and alleged religiosity of the founding of the nation.
The Catholic parents cited their rights of conscience, and as taxpayers, as well as the violation of state law and state constitution. They also argued that the Catholic Church considers the King James Version incorrect and incomplete, and that, as Catholics, they were advised “that the Scriptures ought not to be read indiscriminately, inasmuch as said church has divine authority as the only infallible teacher and interpreter.”
The Supreme Court of Wisconsin, in its historic decision, ruled in favor of the parents. The majority opinion, delivered by Chief Justice J. Lyon, noted: “When, as in this case, a small minority of the pupils in the public school is excluded, for any cause, from a stated school exercise, particularly when such cause is apparent hostility to the Bible, which a majority of the pupils have been taught to revere, from that moment the excluded pupil loses caste with his fellows, and is liable to be regarded with aversion and subjected to reproach and insult.”
Justice John Cassaday, in his concurrence, debunked the Northwest Ordinance argument, pointing out it was superseded by the adoption of Wisconsin’s state Constitution, which he boasted had “probably furnished a more complete bar to any preference for, or discrimination against, any religious sect, organization, or society than any other state in the Union.”
Justice Harlow Orton, in his separate passionate concurrence, noted, “The connection of church and state corrupts religion, and makes the state despotic.” It was Orton who wrote the stirring words I opened this essay with. What makes his words particularly poignant for me is trying to imagine how he and the majority seated on that court in 1890 would feel about today’s Wisconsin Supreme Court.
This is the court where a justice, in FFRF’s lawsuit against a lighted nativity scene in a public park, ruled in 1994 in favor of “protecting the rights of the majority.” Justice Roland Day literally wrote that the decision to allow this devotional display on city property was a “vindication” for “the rights of the majority,” referred to the “historical origin” of the birth of Jesus and compared a crèche to “ceremonial deism.”
While the court of 1890 worried about minorities “losing caste” and being subject to insult and reproach, the court of 1994 cared naught for the death threats and harassment received by the plaintiffs, Patricia and Joseph King, and FFRF staff (including me). “Justice Day had the audacity to talk about protecting the rights of the majority when it was the minority who were harassed,” then-FFRF President Anne Gaylor said at the time.
The following year, the Wisconsin Supreme Court made it nearly impossible to hold the Catholic Church responsible for abuse by its priests, protecting it from negligence lawsuits. “It was an appalling decision,” Peter Isely, a longtime activist, told the Milwaukee Journal at the time. “Because (Milwaukee victims) were raped and sexually assaulted by a priest, unlike anywhere else in the country, they could not exercise their civil rights and file their case in court.” What an indictment of our state Supreme Court that nothing has changed for the better since then. Peter, a survivor of priest abuse, who was interviewed for an upcoming episode of “Freethought Matters” and made an appearance on last week’s “Ask an Atheist,” is still forced to issue the same indictment today. Subsequent rulings on this issue have continued to make Wisconsin an outlier in blocking justice for victims of Catholic priests and in coddling the Catholic Church.
Inflicting ever more damage, in 1998 the Wisconsin Supreme Court eviscerated the very heart of the Wisconsin Constitution’s protections against entanglement of religion and government — the words held so dear by Justice Cassaday in 1890 as being “the strongest in the union.” The state’s high court approved Wisconsin’s 1995 law, the first in the nation, to inaugurate a limited number of vouchers for private (read: religious) education. At first, the vouchers were opportunistically excused as a supposed panacea for racial inequity by allowing some low-income students in Milwaukee the “choice” to attend private religious schools.
Since then, Milwaukee’s voucher program has morphed into a monstrous beast, ever greedy, ever demanding more funding, and currently costing Wisconsin taxpayers of all religions or no religion more than $370 million a year, and expanding annually. The original program, Milwaukee Parental Choice Program, has grown to encompass 129 exclusively or almost exclusively Christian schools, costing taxpayers nearly $241 million in 2022–23. Yet another, Racine Parental Choice Program, involving 31 schools, is estimated to cost taxpayers $33 million in 2022–23. A statewide program, Wisconsin Parental Choice Program, involving over 300 private, almost exclusively Christian schools, is estimated to cost taxpayers over $141 million in 2022–23.
The money to feed this support for religiously segregated, religion-based education is robbed from our public schools — what the 1890 judges aptly described as “common schools.” Yet only public schools are accountable, and must accept everyone. Religious schools don’t have to meet the same standards, or accept differently abled children or even do standardized testing. The goal of the pro-parochiaid, anti-public school crowd here in Wisconsin as nationwide is to make “vouchers” available to all students, regardless of income, regardless if they’re already enrolled in a Catholic or other religious school.
Those wise justices from 1890 would surely be heartbroken over this raid and attack on our common schools to support religion. And yet — the Weiss decision still holds as good law, for now. And that’s worth commemorating.