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(cover picture) Rosenstein, Jay
2010 The Lord is Not on Trial Here Today. Harriman, NY: New Day Films.

Notes: DVD, 56 minutes
Reviewed 5 Dec 2010 by:
Jack David Eller <david.eller@ccd.edu>
Community College of Denver, Denver, Colorado, USA
Medium: Film/Video
Subject
Keywords:
THE LORD IS NOT ON TRIAL HERE TODAY tells the personal story behind one of the most important and landmark First Amendment cases in U.S. history, the case that began separation of church and state in public schools. The film recounts what Vashti McCollum later described as “three years of headlines, headaches, and hatred”, but which eventually led to a decision that still resonates in the church-state conflicts of today – 60 years after the original decision in McCollum vs. Board of Education.

ABSTRACT:    This very professional video tells the story of Vashti McCollum, who stood up in an era of religious conformity in the U.S. to defend the constitutional disestablishment of religion in regard to public schools.



Laws and constitutions are the foundations for rights and freedoms, the bases on which we establish and achieve rights and freedoms, but they are not actual rights and freedoms themselves. If they were, a civil rights law, for instance, would mean that no one’s civil rights were ever violated again. Instead, such a law is the ground for arguing in favor of civil rights—and for acting institutionally against violations.

The wonderful video “The Lord is not on Trial Here Today” powerfully shows that the existence of constitutional separation of religion and state does not in itself guarantee the disengagement of religion from any particular aspect of public (and publicly funded) society. It takes a courageous person like Vashti McCollum to stand up and demand that the law be enforced, often in the face of ferocious popular disapproval. Funded by the Corporation for Public Broadcasting, “The Lord is not on Trial Here Today” is a classic documentary-style production, telling a little-known story of a woman, a court case, and a movement that changed American society forever and for the better. According to the DVD, all federal court cases about religious display and practice since 1948 stem from the McCollum case.

In the 1940s Champaign-Urbana, Illinois was a quiet middle-America town, conservative, Republican, and predominantly white, even segregated. Christianity suffused the society, there and across the country, especially in the midst of war and the struggle against communism. In 1940 the local school introduced a program known as “release time” for holding religion classes on school property, ostensibly to deal with the problem of juvenile delinquency. At the time, generic Protestant activities in school were common, which had already drawn complaints from Catholics and Jews. Interestingly, school children are shown saying the Pledge of Allegiance without the “under God” phrase, which was added later and would become its own source of challenge. Vashti McCollum came from a secular family; her father founded Rochester Society of Freethinkers of America. She and her husband wanted no part of religion for themselves or their children, but during World War II not going to church was seen as unpatriotic and un-American. Religion was moving more overtly into public life. “It was a time of conformity,” one of the figures in the film reminds us. This was true of society in general but particularly so for religion: “There were real costs to being an atheist and expressing it.” In 1944 Vashti’s son Jim was the only student in his primary school class who did not take the release time. School officials and classmates were hostile, and the boy was subjected to insults and bullying. Mrs. McCollum filed a suit against the school in her own name (rather than her husband’s, who was a local college professor) and found a group called the Chicago Action Council, also concerned about religion in schools, to pay her legal bills and provide counsel. The public backlash was of course immediate and intense, including a bill to fire any atheists from university (which fortunately failed to pass). The trial opened in September 1945, and her case was based on the Establishment clause of the First Amendment and its applicability to the states (the Establishment clause explicitly says that Congress cannot establish religion but does not mention state governments). The case was predictably perceived among the public as a struggle between God and atheism, not the proper interpretation and exercise of the First Amendment. McCollum’s lawyer used the strategy of showing that religions were too numerous and too different to have one religion taught in school; he actually aggressively questioned religious spokesmen about their diverse beliefs. He even put 10-year-old Jim on the stand. The defense on the other hand tried to show that Jim was nothing but a strange unpopular child.

As the initial trial proceeded, life became terrible for the family; they were exposed to protest marches, harassment, abuse, shunning, and obscene mail; their cat was killed. They sent their middle-school aged son sent to New York to escape the taunting. Meanwhile, McCollum started to tour other schools and districts to determine if religion was being taught there too. In 1946, the judges ruled that son Jim’s problems were personal and not caused religion, therefore he suffered no injury from religion classes. Such classes, they concluded, did not violate the First Amendment.

McCollum pressed on, changing attorneys and bringing Walter Dodd in for the trial before the Illinois Supreme Court. As witnesses remember, the judges were conspicuously uninterested, and they upheld the lower court’s decision. In June 1947, the US Supreme Court accepted case, which McCollum’s opposing counsel described as the first direct judicial review of the Establishment clause in 160 years. The film describes the trial, especially the conduct and tactics of the lawyers for both sides. Also, the justices took much more interest in the case than previous judges; they asked many questions, and the defense lawyer reportedly “talked back” to the justices. Significantly, there was another related case also before the court, the Everson bus case, concerning the use of public school buses to transport students to parochial schools. In 1947 the Supreme Court oddly ruled to allow tax-paid busing, but more importantly they cited and reaffirmed the “wall of separation” between religion and state and formally applied the Establishment clause to the states.

On March 8, 1948, the ruling in McCollum’s case was announced: by an 8-1 margin, the Court ruled that “release time” was an unconstitutional use of public facilities. This was the first time that the Supreme Court ever prohibited a religious activity in public school, but it was not to be the last. The key to their decision was the fact that the religion classes were being conducted on school property during regular school hours. The Champaign school soon dropped the religion classes, and other districts began to eliminate them too.

“The Lord is not on Trial Here Today” tells the story well of a turning point in U.S. constitutional law. Many other decisions would follow, including the crucial Engel v. Vitale (1962) ruling that finally recognized official prayer in school as unconstitutional; Wallace v. Jaffe (1985), outlawing Alabama’s “moment of prayer/meditation”; and Lee v. Weisman (1992) banning clergy-led prayer at graduation ceremonies. None of these decisions was popular, particularly among those who belief and promote religion; however, in a religiously diverse society with a disestablishment clause in its Constitution, they were the correct decisions and long overdue. Vashti McCollum died on August 20, 2006 at the age of 93, still feisty to the end (she is featured in the film at age 92, very lucid and energetic). Happily, she lived to see her position largely inscribed into American constitutional law and well built upon. There are many First Amendment and civil/minority rights heroes in American history—many of whom were reviled by their enemies, including Martin Luther King—but McCollum is probably one of the least-known constitutional crusaders. “The Lord is not on Trial Here Today” is an important and high-quality tribute to the woman, her cause, and the realization of the Founders’ vision of an enlightened and diverse society in which all are free to practice their religion but none to impose it.

Level/Use: Suitable for high school classes and for college courses in cultural anthropology, American history, anthropology of religion, anthropology of secularism, and constitutional law, as well as general audiences.