In November of 1869, two teams of lawyers in Cincinnati argued a case that gripped the nation. The city's school board had voted to end “religious instruction and the reading of religious books, including the Holy Bible” in schools in order to “allow the children of the parents of all sects and opinions, in matters of faith and worship to enjoy alike the benefit of the Common School fund.”Footnote ¹ Thus ended 40 years of opening the public school day with Bible reading and hymn singing.

Critics of the board often assumed that the Bible's opponents were religious rationalists or Catholic conspirators. The first because they doubted the scriptures, and the second because Catholic priests feared parishioners would find within its pages no justification for their church's hierarchy. In truth, the school board's purposes were more pluralistic than anti-Bible. Its members hoped to draw into the schools the increasing population of Catholic children whose parents did not use the King James Version of the Bible. Failed negotiations on possible consolidation of public and parish schools had happened that summer.Footnote ² The change in policy rendered moot the question of which Bible translation to use, thus making space for Jews and less orthodox believers.Footnote ³ But the city's Protestant elite, including the mayor, leading city merchants, and former school board presidents, organized mass protest meetings and a petition drive. Although the local Catholic archbishop did little more than welcome “the exclusion of Sectarianism from the Public Schools,” the Bible War provoked a nationwide debate filled with anti-Catholic editorials and cartoons from local newspapers to Harper's Weekly and the New York Times.Footnote ⁴ A local editor wrote that the issue “exploded a bomb which seems to have awakened all Christendom.”Footnote ⁵ It was dubbed the “Bible War.”

When the school board approved the anti-Bible resolution, opponents petitioned the local court to issue a restraining order. The constitutional questions turned on two clauses in the Ohio Constitution of 1851 and their effect on the discretionary power of school boards under state law. One guaranteed religious liberty to its inhabitants. The other declared that “Religion, morality, and knowledge, however, being essential to good government, it shall be the duty of the General Assembly to pass suitable laws, to protect every religious denomination in the peaceable enjoyment of its own mode of public worship, and to encourage schools and the means of instruction.” Did starting the school day with the King James Bible fulfill the mandate of the religion, morality, and knowledge clause? Or violate the religious liberty clause? Did state law require the school board to keep the Bible, remove it, or do as it pleased? By a vote of two to one, the Cincinnati Superior Court ruled that the constitution required religious instruction and made the restraining order perpetual in February of 1870. But the school board appealed and won before a unanimous Ohio Supreme Court in 1873.

Technically, Ohio Chief Justice John Welch did little more in Board of Education v. Minor than acknowledge the breadth of local discretion under Ohio law: school boards could assign the Bible or not as they pleased; the constitution neither required nor barred it. Yet mid-twentieth century legal scholars named Minor “one of the earliest and most important” decisions to hold Bible reading unconstitutional.Footnote ⁶ Leo Pfeffer wrote that Welch's expansive dicta led “logically” to “holding that Bible reading in the public schools is inconsistent with the principle of separation” of church and state.Footnote ⁷ Thirty years later, a leading bibliographic essay identified the Ohio decision as a dividing point in the secularization of the law and the schools, and many scholars continue to identify the decision in this way.Footnote ⁸ An account of “the death of the Christian nation,” claims that the decision “marked the first fully secular rationale for religious liberty.”Footnote ⁹ More recently, Steven K. Green echoes Pfeffer: “For the first time,” judges declared Bible reading “unessential for a common education or republican society” and “inconsistent” with constitutional principles.Footnote ¹⁰

This article challenges these varied claims by interrogating the meaning of secularization of the law. Did the law secularize when: Lawyer Stanley Matthews of Cincinnati argued that both constitutional law and Christian duty compelled judges to end compulsory Bible reading?When Justice Welch declared compulsory Bible reading in public schools contrary to “Christian republicanism”? When Minor left local communities to decide, creating a metropole/periphery divide in practice? When Cincinnati's pedagogues, deprived of Bible reading, adopted a memorization program of “the literature of Christendom?” Or when the Ohio state attorney general declared Bible reading in the schools constitutional in 1923? This article examines the multiple levels and spaces where individuals raised and resolved constitutional questions regarding Bible reading in Ohio schools. It focuses on juristic consciousness, bench and bar, in trial and appellate spaces, as both personal belief and public performance. It concludes by sketching the long-term impact of Minor as determined by juristic, pedagogic, and popular consciousness. It reveals that bench and bar, pedagogues and public, conceived of the question of religious practices in public spaces within sacred frameworks that contained assumptions about the nature of religious liberty, a believer's duties, and education. These frameworks determined the extent and shape of the presence of religion in legal forums and state schools. Thus, the frameworks setting the very boundaries of the sacred and secular were themselves religious. When Matthews and Welch argued for an end to Bible reading in the name of Christianity, they sacralized religious liberty by identifying its defense as a Christian duty.

This article builds upon critiques of secularization theory and examinations of the nature of disestablishment in the United States. While sociologists have largely discarded Weberian theory's “secularization prophecies,”Footnote ¹¹ a collection edited by Christian Smith traces American intellectuals who accomplished “the secular revolution” by using national organizations to eject orthodox Christianity from public life.Footnote ¹² But these micro, meso, and macro levels of analysis do not easily overlay the decentralized system of American education, as Kevin Beyerlein's chapter on the National Education Association acknowledges.Footnote ¹³ Smith writes that the Protestant elite minority failed to “ever” formulate “a cogent rationale for their influence in public life,” yet their argument that religious faith was essential to producing the virtuous citizenry necessary to a republic is well documented.Footnote ¹⁴ Public schools were crucial to this effort.Footnote ¹⁵

By questioning “the secularist storyline” without embracing the opposing Christianization storyline, this article joins Leigh Eric Schmidt and others in the “uneasy space” of interdependency and negotiation between secular and religious.Footnote ¹⁶ For gauging Protestantism's impact on juristic and popular consciousness, Sarah Barringer Gordon set the model by demonstrating how the nineteenth-century anti-polygamy campaign fused Christianity, republicanism, civilization, and monogamy.Footnote ¹⁷ While that campaign shows the power of religion in civic forums, this article traces how religion framed its withdrawal from civic spaces.

Like scholars who identify intellectual links between nineteenth^-century theology and legal science, this article recognizes how religion could frame law. A foundational belief of Scottish Common Sense Realism underlay both theology and law in nineteenth-century America: God endowed the human soul with a moral faculty able to distinguish right from wrong.Footnote ¹⁸ Jurists explained that human law should thus strive to reflect divine law.Footnote ¹⁹ So, Stanley Matthews ended a bar association speech in 1888 quoting Richard Hooker, the Anglican theologian who authored an eight-volume set on laws in the 1590s: “Of law, there can be no less acknowledged than that her seat is the bosom of God… .”Footnote ²⁰ A fellow lawyer recalled that Matthews “traced” law to “its source fountain, not in Blackstone or Kent or Coke's Institutes, or in those of Justinian, but, in and through all these, back to the mind of God.”Footnote ²¹ Such ideas account for architectonic, normative, and linguistic transferals from religion to Anglo-American law, such as the equation of sin with crime.Footnote ²² Discursive conventions limited religious expression in judicial reasoning, but jurists articulated their foundational religious beliefs when pressed.Footnote ²³

Like studies of Christian founders decentering deist Thomas Jefferson and his Virginia, this article draws attention to a Christian lawyer's vision of religious liberty.Footnote ²⁴ The Danbury Baptists who prompted Jefferson's 1801 metaphor on the First Amendment as a “wall of separation between Church and State” did not want “religious influences separated from public life and policy,” writes Daniel L. Dreisbach.Footnote ²⁵ And they were hardly alone.Footnote ²⁶ Scholars have identified the impact of Protestantism, and its fears of Catholics, in state regulation of church wealth and clerical authority into the early twentieth century.Footnote ²⁷ They have shown how Native Americans and others gained religious liberty protections only by demonstrating commonalities with mainstream Christian churches.Footnote ²⁸ Evangelical belief influenced culture, politics, and law in the nineteenth century, thus creating de facto Protestant establishment into the 1920s.Footnote ²⁹

Many American Protestants identified the Reformation's “free” Bible as the font of modern civil and religious liberties—invariably coupled—as against Catholic tyranny, thus linking pan-Protestant influence over government with religious liberty guarantees.Footnote ³⁰ The myth was that popes banned Bible reading and all independent thinking.Footnote ³¹ The King James Version, without note or commentary, embodied the right of private judgment; that is, that each reader interprets God's Word independently, and that version dominated the American market.Footnote ³² (The Catholic Church held that untutored readers needed the expert commentary provided in the Douai-Rheims Bible.)Footnote ³³ Protestantism's motto was sola scriptura, the Bible alone, although few encountered scripture solo, as Protestant churches imposed interpretive rules through sermons, a rich print culture, and heresy trials.Footnote ³⁴ Still, American Protestants envisioned history as the onward march of their peculiarly republican faith, rendering anti-Catholicism into republican patriotism.Footnote ³⁵ “Religion was more than a purely personal concern. It stood guard over liberty,” writes one historian.Footnote ³⁶

But if Protestantism produced religious liberty and Catholicism produced tyranny, how much religious pluralism could the Republic tolerate? It did not help that the Vatican idealized a church–state union, although its early Irish-American clergy did not.Footnote ³⁷ Anti-Catholic accusations proliferated: priests chained the Bible, controlled male voters, seduced women, divided families; the faith discouraged all free thought and economic initiative.Footnote ³⁸ Antebellum discussions of American religious nationalism reached violent climaxes in the 1830s and 1840s over schooling.Footnote ³⁹ Irish immigration intensified fears and encouraged the American Party or Know-Nothings in the 1850s. The Bible War re-inflamed these fears and is identified as one of the reasons that President Ulysses S. Grant favored legal bars on state funding for sectarian education, an anti-Catholic measure.Footnote ⁴⁰

Stanley Matthews's brief in the Bible War case was more eschatologically Protestant than anti-Catholic. The leader of the “anti-Bible” legal team and a future United States Supreme Court justice, Matthews identified the pope with tyranny and disapproved of the infamous Mortara case (1858) when the Papal States seized a Jewish child (his brief also used a quotation that referenced the “monstrous fables” of the Talmud and the “gross impostures” of the Koran).Footnote ⁴¹ Yet Matthews’s portrayal of lay Catholics was respectful and sympathetic, if ultimately instrumentalist: Matthews championed religious liberty in the hope that the unconverted might be saved as he had been.

Like other religious critics of de facto Protestant establishment, Matthews drew on Christian dissenting tradition.Footnote ⁴² While colonial Puritans had remained linked to the Anglican Church, radical separationists rejected a state church that incorporated all inhabitants regardless of their spiritual condition. So, Roger Williams argued that state magistrates were unlikely to be Christians able to distinguish true servants of God, and that no true Christian would use force to impose faith.Footnote ⁴³ Nineteenth-century Baptists and others relied on this tradition in writing petitions opposing Sabbath laws, temperance, and religious training in the public schools as being violations of religious liberty.Footnote ⁴⁴ Matthews supported Sabbath and temperance laws, yet he held that the sullied state must not teach religion in the schools.Footnote ⁴⁵ “Protestants have no rights” that do not also belong to Catholics and “Jews and Infidels too,” he declared in court, because he believed that only the (Protestant) churches, not the state, could bring the Word of God to all and hasten the millennium.Footnote ⁴⁶ Matthews’s invocations of regeneration and the Second Coming were distinctly Protestant practices. By sacralizing religious liberty within a post-millennialist framework, Matthews gave Justice Welch, himself a religious radical, a respectable (although not universally accepted) Christian argument for ending Bible reading. The resulting decision hybridized dissenting and deistic reasoning, appealing to as broad a constituency as had the right to elect Ohio's justices. Minor offered a means of ending Bible reading with the blessing of Christianity.

* * *

Born in 1824, son of a deist who taught mathematics and natural philosophy, Thomas Stanley Matthews originally followed Universalism, a faith that sometimes disqualified its followers from testifying in court.Footnote ⁴⁷ Universalists believed—as Salmon P. Chase teased Matthews—“that earth's devils and earth's devil's victims are going to the same place hereafter.”Footnote ⁴⁸ Matthews became a Free-Soil Democrat and worked with Chase against the Ohio Black Codes, yet he criticized judges who refused to uphold the Fugitive Slave Law of 1850.Footnote ⁴⁹ He served as an Ohio Court of Common Pleas judge and state senator during these years. He and his wife, Mary Ann Black, considered joining both a utopian socialist Fourier community and Brook Farm, the transcendental experiment.Footnote ⁵⁰ Matthews was as religiously radical as an antebellum American could be.

But when scarlet fever killed four of his children in 1859, Matthews found solace in the God of Calvinism.Footnote ⁵¹ His personal correspondence exhibits an intense reliance on God's power from 1859, reinforced by service in the Union Army from 1861 to 1863, ebbing in fervor in the late 1870s, yet never disappearing.Footnote ⁵² Matthews and Mary Ann joined an Old School Presbyterian church, a significant step requiring a public confession of faith, an external marker of an internal process, emphasizing the power of God and the limits of human reason.Footnote ⁵³ After his military service, Matthews won election to the Cincinnati Superior Court.Footnote ⁵⁴ While Old School Presbyterians tended to accept slavery, their General Assembly adopted the anti-slavery “Stanley Matthews paper” in 1864, when he also supported President Lincoln's re-election.Footnote ⁵⁵ Matthews was a successful, politically connected, local attorney known for his orthodox piety by 1869.

Which is precisely why the school board enlisted him: he lent religious respectability to an “anti-Bible” enterprise.Footnote ⁵⁶ Indeed, George Hoadly, his co-counsel, a Unitarian, urged that he be hired because of “his Christianity, ardent, devoted, springing from the full conviction of a man of high mental powers… .”Footnote ⁵⁷ John Stallo, a German immigrant and a Catholic turned Hegelian, joined them. In contrast, the pro-Bible team had impeccable orthodox credentials—a Methodist and the son of a minister, a Congregationalist, and an Episcopalian.

Each day of the hearing saw “the same crowded room, the same indifference to physical discomfort, the same intense interest” according to extensive newspaper coverage.Footnote ⁵⁸ Newspaper accounts shifted between verbatim and descriptive passages, so this article relies upon the published briefs. The attorneys reviewed them, editing some passages smooth, adding footnotes, and lengthening quotations, but the text captures their oral arguments, and the courtroom exchanges and public reactions. They offer an extraordinary extended legal commentary on the role of religion in the schools, and have either been neglected by scholars or quoted misleadingly.Footnote ⁵⁹

Matthews and his two co-counsel relied on the same two central legal arguments. Following both Ohio precedent and Thomas Cooley's Constitutional Limitations from 1868, they agreed that Christianity was not part of the common law inherited from England, nor was it part of Ohio's common law. They agreed that opening the school day with a Bible reading constituted Protestant worship in violation the Ohio Constitution's religious liberty clause. Their arguments diverged from there because of their individual religious beliefs.

Matthews’s “apparently inconsistent attitude” drew particular press interest.Footnote ⁶⁰ His argument was “a remarkable one, not only for its great ability,” wrote one newspaper, but because he argued against the Bible as “a devout believer and a zealous Christian.”Footnote ⁶¹ Forced to resign his elected position as church elder, Matthews found himself in “the most painful experience” of his life save for his children's deaths, as he told the court.Footnote ⁶² He felt compelled to argue the Bible War case because of “a religion which it is the greatest honor and pride of my life to be able to-day to stand in public and confess.”Footnote ⁶³ This legal work answered his own earlier call at a Presbyterian convention that year: secular business, too often an excuse for avoiding church work, offered “the very opportunities…to give evidence to the world at large that we are living Christians.”Footnote ⁶⁴ Conversion carried with it the duty to evangelize. Matthews’s former law partner recalled: “He regarded his calling as a ministry—exalted high above all money consideration.”Footnote ⁶⁵

For Matthews, civic, professional, and religious duty compelled his controversial work. He had “no choice,” he explained in court. “As a lover of my profession,” he meant to stop an illegal act. As a citizen, he was determined to defend the public schools and the state from “dangerous and mischievous” doctrines. And as a Christian, he was determined to stop the Bible from being “bandied about as a foot-ball between political parties.” For Matthews, the mixing of politics and religion “ought not to be. Legitimately it can not be.” Lawyers and judges had “no business” arguing about religion in court, for they were incompetent to answer “questions of exegesis, questions of interpretation, questions of church authority, questions of inspiration.”Footnote ⁶⁶ And yet Matthews relied in court upon exegesis, interpretation, church authority, and even inspiration.

The most heartfelt example came when Matthews identified himself as “a Calvinistic Protestant” in the midst of his exposition on why Bible reading in schools constituted an act of worship. Matthews confessed his belief in the Bible as the Word of God and Jesus Christ as the Messiah and ended with a quotation from the Gospel of John: “Behold the Lamb of God which taketh away the sins of the world!” He then called on his dead children to witness to his faith: “I have not three witnesses only, if your Honors please, above. I have five—five witnesses in heaven to-day… .”Footnote ⁶⁷ The fifth was his eldest daughter who had died suddenly in 1868.Footnote ⁶⁸ Why then start with three? Because Deuteronomy reads: “One witness shall not rise up against a man for any inequity… . At the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.”Footnote ⁶⁹ Matthews’s listeners, especially his critics, would have appreciated the allusion, because Protestant church trials noted this rule.Footnote ⁷⁰ Witnessing was a particularly powerful idea for Christians, meaning truth-telling and a public profession of faith.Footnote ⁷¹

Matthews’s brief drew upon the argument made by earlier Christian dissenters who were crucial to ending religious establishments in the eighteenth century. A Presbyterian petition for the end of Anglican establishment in Virginia in 1776 reasoned that “when our Blessed Saviour declared his kingdom is not of this world,” when answering Pontius Pilate, the Roman official, “he renounced all dependence upon State Power”Footnote ⁷² (all emphases in originals). Matthews invoked the same Bible passage from the Gospel of John to argue that Ohio and its teachers could not identify religious truth. He warned the “civil authorities” to desist, lest they err as Pilate had, and “crucify the Lord of Glory afresh!” Do not “toss” the Bible into “the arena of political controversy,” lest they violate Christ's command: “Give not that which is holy unto the dogs, neither cast ye your pearls before swine, lest they trample them under their feet, and turn again and rend you.” After another confession of faith, this one made by quoting the First Letter of Paul to Timothy, Matthews explained, “the State, the civil power—through its law-making, judicial and executive administration; through its politics and its parties; through its secular agents and officers; through its boards of education and school teachers has, rightfully, and can have, nothing whatever to do” with religion. He quoted from a pagan source, Virgil's Aeneid, “Procul, procul este profani!” and then warned, “Let no unholy hands be laid upon the sacred ark.” Listeners would have recognized the allusion to the Second Book of Samuel where the Ark of the Covenant holding the tablets of the Ten Commandments was drawn along by oxen when the unworthy Uzzah “put forth his hand” to steady it. The text reads: “God smote him there for his error; and he died by the ark of God.”Footnote ⁷³ Well-meaning men were not spared God's wrath.

To limit state power, Matthews also invoked his denomination's Westminster Confession at length. “Civil magistrates may not assume to themselves the administration of the word and sacraments, or the power of the keys of the kingdom of heaven, or in the least interfere in the matters of faith…” While the original 1647 Confession required magistrates to suppress “all blasphemies and heresies,” Matthews quoted the revision made by Americans in 1788: “it is the duty of civil magistrates to protect the church of our common Lord without giving the preference to any denomination of Christians above the rest, … all ecclesiastical persons whatever shall enjoy the full, free and unquestioned liberty of discharging every part of their sacred functions, without violence or danger.”Footnote ⁷⁴ Biblical and creedal sources dotted Matthews’s brief because post-millennialism framed his legal arguments.

Extending religious liberty to the unconverted was a mode of loving evangelism for Matthews. “In the spirit of my Divine Master,” Jesus Christ, “I do not want to compel any man,” he told the court. As a man “treasures” his own conscience, so he should “apply the cardinal maxim of Christian life and practice, ‘Whatsoever ye would that men should do unto you, do ye even so unto them.’” Christ's Golden Rule from the Gospel of Matthew found its parallel in the guarantee of religious liberty in the Ohio Constitution. Jews were “equally entitled” to “civil and religious equality, equality because it is right, and a right,” right in God's eyes and a right under Ohio law. So too Catholics have “civil rights and religious rights, equal to yours and mine.” Defending such rights aided conversion. “I know no better way, to recommend the truth” of the Bible “to those who can not receive it,” Matthews told the court, “but to live like him whose teaching is to be just, to be good, to be kind, to be charitable, to receive them all into the arms of my human sympathy, and to say to them, ‘Sacred as I believe that truth to be, just so sacred is your right to judge it.’” Matthews then turned back to “the civil law” and asked what could it do “in the presence of eternity and of these eternal truths, and of these distinctions and differences, and human weaknesses and disabilities?” Can civil law force the majority faith of Protestantism upon the non-believer by saying to them, “you shall be daily confronted with what you do not and can not receive?”Footnote ⁷⁵ Matthews relied upon the distinctive language of the King James Bible in which the believer “receives”; that is, accepts, Christ as the Son of God. The non-believer here was the not-yet-converted Protestant, an assumption that had shaped the earliest American Protestant efforts to convert with Christian love the Catholics who lived in what was then the West.Footnote ⁷⁶

Like other Protestants, Matthews believed that his faith produced religious liberty. Protestants were a “fighting people” of a faith “born and baptized in blood” who would rather die “than surrender the right of private judgment.” Matthews identified a counterpart to that right in constitutional law. “All I ask is—being a Protestant—that we make manifest the value of our Protestantism to those we seek to convert,” he explained, “by showing what it can do for a man by making him magnanimous, and liberal, and great. Oh, what a solemn mission it is to which your Honors are called—to vindicate the truth of the religion you privately profess by showing how equal, how just it is!”Footnote ⁷⁷ The possibility of universal regeneration through loving evangelism may have had special resonance for a man who experienced such a dramatic conversion. Matthews’s appeal was to judges of varying faiths: Bellamy Storer, an Episcopalian, Marcellus B. Hagans, a Methodist Episcopalian, and Alphonso Taft, a Unitarian.Footnote ⁷⁸

Matthews's approach to Catholics was sympathetic and imaginative if ultimately instrumentalist. He countered directly the caricature of Catholics as slaves to an unrepublican faith. Catholicism was “not an ignorant superstition;” “well constructed logic” undergirded its “doctrinal basis.” Catholics believed “sincerely, conscientiously,” and voluntarily.Footnote ⁷⁹ After Judge Storer insisted that the archbishop would reject Bible-less public schools as godless, rendering the school board's move bootless, Matthews’s imagined lay Catholics challenging “the hierarchy.” They would greet the “destruction” of parish schools with “approbation,” and “great relief.” After Bible readings ended, they could correct priests: “Father, you are mistaken; our children are unmolested” in public schools.Footnote ⁸⁰ (Matthews was prescient; Catholic lay resistance, always lively in the nineteenth century, prompted the American bishops to require parents to use parish schools in 1884.)Footnote ⁸¹ Matthews invited the court to imagine the spiritual distress of Catholics under the current regime: “Suppose” Catholics were the majority and “suppose your children” were forced to make the sign of the cross, “How would your Honors like it?”Footnote ⁸² Doing unto others in the civil sphere left everyone safer, even as eschatology made religious liberty into a means, not an end, for Matthews.

By pairing the Protestant belief that a soul could achieve spiritual grace only by freely accepting Jesus Christ as Savior with the constitutional guarantee of religious liberty, Matthews aided the ultimate Christian event: the Second Coming of Jesus Christ.Footnote ⁸³ Near the end of his argument, Matthews reminded the judges of Reverend Lyman Beecher's joyful discovery that disestablishment in Connecticut in 1818 brought unprecedented evangelization by throwing believers “on God and on ourselves.”Footnote ⁸⁴ Was it true, as the pro-Bible side argued, that thousands of children in Cincinnati had never learned of Christianity? In rhetorical questions studded with Biblical quotations, Matthews continued for some three pages of text: Did not Jesus command us to go out into the streets and “bring them into the feast which he had prepared?” Had “the Church grown “idle and lazy?” “No!” cried Matthews. The church must “say to the State: ‘hands off; it is our business, it is our duty, it is our privilege to educate the children in religion and the true knowledge of godliness.’” Bible advocates would settle for teaching children mere morality: “Be virtuous and you shall be happy.” But the church would teach the truth: “Believe on the Lord Jesus Christ and thou shalt be saved.”Footnote ⁸⁵ Matthews cried out for evangelism from the church: “Let her rise up in the full measure and majesty of her innate spiritual strength—let her gird her loins for the mighty task… .” The inevitable result of universal regeneration was the Second Coming, an event often identified with the Republic, and Matthews quoted at length from Revelation: “Then shall be hastened the promised time of the coming of our King when there shall be a new heaven and a new earth… .” The church must “throw away the sword of civil authority,” he concluded, for only then could she “restore upon earth the Paradise of God.”Footnote ⁸⁶ To Matthews, encouraging conversion remained as important as the pan-Protestant organizational efforts to which other evangelicals now devoted more energy.Footnote ⁸⁷

The evangelizing framework of Matthew's legal argument accounts for his approval, despite Catholic objections, of Protestant worship when the state acted in loco parentis.Footnote ⁸⁸ Matthews denounced the state effort to try to convert Catholic children from “their fathers’ faith,” yet dismissed state institutions as irrelevant to the legal issues in Minor.Footnote ⁸⁹ As a trustee of the state reform school where boys lived in “families” supervised by “elder brothers,” Matthews praised the school's Gospel lessons and use of a Protestant hymnal.Footnote ⁹⁰ Nonsectarian Protestantism was still a civic, and metaphorically familial, value. (Justice Welch agreed: the state may direct “what religious instruction” is given when it “takes the place of the parent.”)Footnote ⁹¹

Despite Matthews's appeal to Protestant heritage, the Cincinnati Superior Court ruled against the school board in February of 1870. Judges Storer and Hagans held the board could not end Bible reading on two grounds: the state constitution's religion, morality, and knowledge clause required religious instruction in the schools; and reading the King James Bible was a non-sectarian practice that did not violate the constitution's religious liberty clause. Echoing Matthews, Judge Taft quoted Christ's Golden Rule in his dissent, and argued that “the State, while it does not profess to be Christian, exercises a truly Christian charity toward all.” Taft stopped just short of defending the conscience of “a Rationalist, or a Spiritualist or even an Atheist.”Footnote ⁹²

John Welch, who wrote the unanimous Ohio opinion in favor of the school board, attended a Presbyterian college, divided the world easily into “christendom” and “heathendom,” and yet called himself an “Emersonian.”Footnote ⁹³ Progress meant religion becoming “more rational and tolerant, and less ritual and dogmatic.”Footnote ⁹⁴ He was remembered as a man who “was not a member of any church, because he did not accept churchmen's theories, and he could not be a hypocrite.”Footnote ⁹⁵ Such liberal Protestants had few if any doctrinal requirements, but rather an ethical imperative that facilitated extending religious liberties to others.Footnote ⁹⁶ Appointed to the Ohio Supreme Court in 1865, and serving until 1878, Welch was re-elected three times. Clearly, ruling in favor of the school board did not hamper his re-election, perhaps because of his blending of justifications for religious liberty.

Welch denied the common Protestant equation of religion with Christianity all the while relying on the Christian dissenter's anti-compulsion argument used by Matthews. The state constitution encouraged “religion,” not “the Christian religion,” Welch wrote, just as it protected the rights of “all men,” not “all Christian men.” Christianity was not a part of the common law of the state, Welch reasoned, because violations of its precepts did not meet with civil sanctions. Yet “it is a Christian country…and its laws are made by a Christian people.” In words often ignored by scholars, Welch then asked: “is not the very fact that our laws do not attempt to enforce Christianity, or to place it upon exceptional or vantage ground, itself a strong evidence that they are the laws of a Christian people, and that their religion is the best and purest of religions?” Here, secular law took on a sacred role via religious liberty. Echoing Matthews and the Bible, Welch declared, “True Christianity never shields itself behind the sword.” Welch held that history proved that legal establishment corrupted religion and government. Yes, the two had a relationship: “religion, morality and knowledge… have the instrumentalities for producing and perfecting a good form of government.” But government could not produce “a good religion.”Footnote ⁹⁷

Welch argued that teaching religion in public schools was an un-Christian compulsion. While Matthews had asked Protestant judges to imagine themselves a religious minority, Welch imagined himself an orthodox Christian, perhaps to strengthen his resort to dissenting tradition. If the pro-Bible supporters were right, then all teachers in the schools must be Christian, Welch reasoned. He imagined himself as a Christian public school teacher ordered to teach the Bible: “Were I such a teacher, while I should instruct the pupils that the Christian religion was true and all other religions false, I should tell them that the law itself was an unchristian law.” Welch explained “one of my first lessons” would teach: “Whatsoever ye would that men should do to you, do ye even so to them… .” Welch expanded the Bible quotation beyond what Matthews used: “… for this is the law and the prophets.” A law forcing Bible teaching in public schools was no more justifiable than a law taxing a man to support it. Neither could be defended to “the veriest infidel or heathen” because compulsion was not “Christian republicanism,” but “a false Christianity” unworthy of support.Footnote ⁹⁸ Welch's Christian republicanism required religious liberty.

Welch quoted James Madison near the end of the decision only after rendering Madison religiously respectable. He wrote that Madison was a man whose “orthodoxy of religious belief no one questions,” yet scholars do.Footnote ⁹⁹ Madison's religious beliefs remain “something of a puzzle” to us because of his reluctance to voice them, perhaps a wise discretion in the Early Federal Period when deists risked political ostracism.Footnote ¹⁰⁰ Welch's likely source was a mid-century biography, one of several evangelical writing efforts to Christianize a deist founder.Footnote ¹⁰¹ Yet when Madison wrote his “Memorial and Remonstrance” against the Virginia general tax assessment for the support of all churches in 1785, he did indeed use the Westminster Confession in which tradition he had been trained.Footnote ¹⁰² Alongside historical and political arguments, the “Memorial” held civic coercion to be antithetical to “Christian Religion” as it “discourages those who are strangers to the light of revelation.” Such language may appear to be a ploy to widen its appeal, but Daniel L. Dreisbach's examination of Madison's efforts during a revision of Virginia's laws in the 1780s, including a Sabbath bill and a marriage bill with rules from Leviticus, suggests that Madison's was “a flexible church–state model that fosters cooperation between religious interests and the civil government” not a strict church–state separation.Footnote ¹⁰³ Justice Welch drew on Madison's speech against the 1785 assessment—“Religion is not within the purview of human government”—and from two private letters.Footnote ¹⁰⁴ Significantly, Welch did not follow the lead of Matthews’s Unitarian co-counsel, George Hoadly. He argued that the Bible was not needed for morality, and pointed for proof to classical Romans, Baruch Spinoza, and “the so-called Infidel,” Ralph Waldo Emerson of whom he wrote; “No word of his, but is a trumpet blast, loudly calling to a better life.”Footnote ¹⁰⁵ Perhaps so, but Welch did not invoke Emerson, whom he admired, only a founder rendered religiously orthodox.

However much he doubted the Bible, Welch made nothing of George Hoadly's extensive foray into higher criticism, scholarship from Germany that questioned traditional claims of its writing. Hoadly argued that the publication in 1869 of the Codex Sinaiticus, the oldest Bible manuscript, meant that the correct ending of the Lord's Prayer was now so unclear that asking children to recite it was impossible.Footnote ¹⁰⁶ In contrast, Welch referenced the Bible as authority rather than questioning its texts.

Similarly, Welch did not adopt the indictments of the Bible by co-counsel John Stallo, a German immigrant who followed Hegel's notions of social and moral evolution.Footnote ¹⁰⁷ Stallo condemned the Hebraic books for violence, “immorality and sensuality,” and praised Christ's Golden Rule only to point out the hypocrisy of a faith that “burned the heretic at the stake.” In a country where Protestantism and republicanism were often equated, Stallo condemned Christianity for teaching men to turn the other check instead of “the spirit of stalwart and manly self-assertion” needed to win the American Revolution and preserve the Republic, and for discouraging “that free and courageous thought” that challenges religious dogmas and despotic political power equally.Footnote ¹⁰⁸ Welch may have shared some of these rationalist views, but he did not voice them in Minor at a time when those who rejected Christianity entirely often paid a high social price.Footnote ¹⁰⁹

Welch did invoke the arena theory of religious liberty, where faiths compete so that the truth may win out, which overlapped with Matthew's evangelizing framework. “Let religious doctrines have a fair field…. and the best will triumph in the end.” Welch urged an attitude of loving tolerance similar to Matthews's and with the same purpose: to bring more people to the faith. “If you desire people to fall in love with your religion, make it lovely. If you wish to put down a false religion, put it down by kindness… .” To use force was to abandon “your own religion,”—clearly Christianity—for Welch then added, “even heathen writers have learned and taught this golden truth.” To demonstrate this, he quoted Buddha, whose ethical positions appealed to liberal Protestants like himself, and then he drew a parallel to Christianity, thus rendering an Asian faith acceptable to more orthodox Ohioians: “‘Let a man overcome anger by love, evil by good, the greedy by liberality, and the slanderer by a true and upright life.’ Christianity is full of this truth… .”Footnote ¹¹⁰ Christ's command to turn the other cheek, to love one's enemies, would have arisen in many minds. To most Christians, such a parallel hardly shook their faith's superiority as it proved not the value of all religions, but rather the conversion potential of pagans.Footnote ¹¹¹

Welch urged Ohioans to believe in religious pluralism. “Three men—say, a Christian, an infidel, and a Jew—ought to be able to carry on a government for their common benefit,” that protects them all in their worship and search for truth.Footnote ¹¹² He had written so much in hopes of encouraging “a harmony of views and fraternity of feeling,” so that the men managing the state of Ohio might be instrumental in “working out for us what all desire—the best form of government and the purest system of religion.”Footnote ¹¹³ Welch's deft integration of radical and orthodox religious discourses may explain both the unanimity of this decision by an elected bench and the relative peace that greeted the decision. Radical and orthodox believers, majority and minorities, all could find solace in its logic. Of course, by leaving school boards to their own discretion, the decision defused any statewide objections.

Protestant critics resisted these invocations of the Golden Rule or “the great question of Equity” with three arguments.Footnote ¹¹⁴ First, the King James Bible was not sectarian. Cincinnati Unitarian minister Amory D. Mayo argued “the Bible read without note or comment, singing Old Hundred,” that is, the hymn “Praise God, from Whom all Blessings Flow,” and the Lord's Prayer stood on the “great common ground” of religion and could not violate the Golden Rule.Footnote ¹¹⁵ Second, Catholics did not seek equity; their complaints were a ruse to destroy state education and gain a share of the school fund.Footnote ¹¹⁶ Lastly, republicanism required religious training. The state guarantees “the free and full enjoyment” of religious liberty, declared The Biblical Repertory and Princeton Review, but must not take it “so far” as to “ignore or disown… dependence upon the Supreme Ruler and Sovereign Lord of all” and reduce its citizenry to “mere animals.” Since “neutrality is impossible,” the Christian majority should set the religious standards in schools, not “Mormons, Chinese, Jews, idolaters, atheists, and infidels.”Footnote ¹¹⁷ That “all sects are on the same footing before the law, whether Pagan, Roman or Christian” was unthinkable to the New York Evangelist.Footnote ¹¹⁸ In short, one could not do unto other (inferior) religions without civic damage.

This resistance fits a historical pattern, because dissenting Christians extended religious liberty for religion's sake, and never universally. Colonial Baptists could be “positively vitriolic” about Universalists, Shakers, and Methodists as “corrupt and dangerous heretics.”Footnote ¹¹⁹ The Presbyterian clergy of Virginia in 1785 were “as ready to set up an establishment which is to take them in as they were to pull down that which shut them out,” James Madison growled, although lay objections forced them to retreat.Footnote ¹²⁰ As Christian dissenters grew in numbers, they embraced state power. Anson Phelps Stokes wrote in 1950 that the Baptists “fought heroically to secure their own freedom,” but “their record” on religious freedom for Catholics and religious liberals “has not been so uniformly good.”Footnote ¹²¹

Yet Matthews seems to have shifted the debate to some degree. Despite their objections to his published brief, religious journals admitted grudgingly, “we see the full strength of the argument against the Bible.”Footnote ¹²² The New York Evangelist printed a letter from a Cincinnatian declaring Matthews’s argument as rising “to an eloquence that was sublime.”Footnote ¹²³ It was an “exceedingly able, adroit, and learned” argument and “a considerable class of Protestants, including some ministers and laymen of eminence” had adopted the position, admitted The Biblical Repertory and Princeton Review.Footnote ¹²⁴ A local newspaper noted in 1873, “many who held the Bible a perfect rule of faith and conduct” opposed it in the schools.Footnote ¹²⁵ Orthodox Protestants criticized the brief, but could not condemn so obviously pious a man as Matthews, a phenomenon that may have encouraged other dissenting Christians to speak out. A Presbyterian minister praised Matthews's “open, manly, earnest advocacy of the infallible divine authority of the Bible and of the religion of Christ.”Footnote ¹²⁶ A Methodist Episcopal journal took heart in the fact that Matthews’s “eloquent and even tearful tribute to the truth and worth of Christianity” countered the slurs of his fellow counsel.Footnote ¹²⁷ Matthews re-integrated swiftly into religious and political life. Before the Ohio court ruled, Matthews became trustee at a Presbyterian seminary and addressed a synod; by 1876, he received an honorary LLD from a Presbyterian university.Footnote ¹²⁸ After the Ohio decision, a newspaper noted: “All his feelings and sympathies were with the Bible.”Footnote ¹²⁹ Opponents of Matthews never raised the Bible War when he ran for Congress in 1876, or when he was nominated for the Supreme Court in 1881, the bench from which he issued an anti-polygamy decision.Footnote ¹³⁰ In contrast, Judge Taft's “kicking the Bible out of the school-house door” effectively disqualified him from ever gaining public office again in Ohio.Footnote ¹³¹ The manner in which one removed religion from public life mattered.

Minor was not the watershed that some scholars imagine, because it collided with pedagogical theories dating to the common school crusade of the 1830s.Footnote ¹³² Although Bible reading had continued in Cincinnati because of the Superior Court injunction and more pro-Bible candidates won seats on the school board in 1870, the reaction to Minor in 1873 was muted.Footnote ¹³³ Local papers praised the decision or demanded action at the next board election, while Cincinnati's principals wrote reports trying to disentangle morality from religion while quoting the Bible.Footnote ¹³⁴ Cincinnati's public school enrollment numbers stagnated right after the Bible War, then began an unchecked upward trajectory under John Bradley Peaslee, School Superintendent from 1874 to 1886, the man who identified what he called “the best method—the use of the Bible being forbidden—of imparting moral instruction.”Footnote ¹³⁵ In place until at least 1900, Peasleee's memorization and recitation program assumed that children could be taught only by training “the will under a deep sense of that Supreme Authority that is back of family, school and state.”Footnote ¹³⁶ These poetical and prose “memory gems” taught belief in God, a heavenly Father, good, loving, and all-powerful if at times mysterious; in heavenly life after death; and in the religious duty to adhere to virtue.Footnote ¹³⁷ Christ was absent; Christmas was not. Such memorization programs so paralleled Sunday school practices that schoolroom poetry became “affiliated” with Christian worship.Footnote ¹³⁸ Peaslee and his successor E.E. White had outflanked the Minor decision. At the National Education Association meeting in 1886, Peaslee declared: “No Board of Education has ever said, to my knowledge, that God and our responsibility to the Deity should not be taught in the public schools,” while White identified the three methods to teach of God that survived Minor: “Sacred song, the literature of Christendom, and best of all, faithful and fearless Christian teachers, the living epistles of the truth. Against these there is no law.”Footnote ¹³⁹

For that matter, there was no law against Bible reading. The Ohio attorney general determined in 1923, “READING OF BIBLE IN PUBLIC SCHOOLS IS NOT VIOLATION OF CONSTITUTIONAL RIGHTS.”Footnote ¹⁴⁰ The legislature promptly passed a Ku Klux Klan-sponsored compulsory Bible-reading law.Footnote ¹⁴¹ As canny as Justice Welch, Governor Vic Donahey vetoed the law in 1925, and praised both “separation of Church and State” and home rule.Footnote ¹⁴² He thus left undisturbed the tendencies of Ohio's decentralized educational system under Minor: metropoles limited pan-Protestant curricula; smaller, homogenous communities retained them.Footnote ¹⁴³ That same year in New Liverpool, Ohio, a judge ruled that the school board had the power to implement a new religious program.Footnote ¹⁴⁴ “Opening exercises… of scriptural readings, prayers and hymns” were common in Ohio's public schools until 1913, the 1920s saw an increase in release-time religious programs, and a 1939 study estimated that 85% of Ohio students did Bible reading.Footnote ¹⁴⁵ In St. Bernard, adjacent to Cincinnati, Catholic schools staffed by nuns functioned as public schools until Protestants and Other Americans United For the Separation of Church and State threatened a lawsuit at mid-century.Footnote ¹⁴⁶ A survey of Cincinnati's schools in 1964 revealed that all had Christian holiday programming, half had release-time sectarian programs, 40% had prayer at school assemblies, and a handful started the day with prayer and Bible reading.Footnote ¹⁴⁷ Anecdotal evidence indicates that Bible reading continued in some Ohio urban public schools into the 1970s.Footnote ¹⁴⁸

* * *

Christian dissenting theory is so apparent in Matthews's brief and in Minor that its neglect by scholars is puzzling. When Steven K. Green writes that Matthews believed that “neither the government nor the law was founded on Christian principles, and neither had a role in promoting religion in any form,” we see the persistent influence of a secularization narrative that excludes religion's power to frame law, including law promoting religious liberty.Footnote ¹⁴⁹ When Green writes that neither Matthews nor Minor deemed Bible reading “essential for a common education or republican society,” he erases from the historical record the appearance of dissenting Christian tradition in juristic consciousness. For Matthews, the sacralization of religious liberty under law partnered with his Protestant duty to regenerate his fellow citizens. For Welch, the sacralization of religious liberty facilitated the expression of an unpopular policy option in orthodox Christian terms. The fact that Justice Welch's dicta stopped well short of separating law from religion indicates his awareness of the limits of religious liberty in popular consciousness and pedagogic practice. Scholars recognize such limits in telling the story of anti-Catholicism generally, but have done so only rarely in recounting the effect of the Bible War.

Despite their awareness of the problem of ascribing unwarranted efficacy to appellate decisions, in their quest for periodization, historians strain to identify legal “landmarks” after which church–state debates move universally and permanently toward secularization.Footnote ¹⁵⁰ When one such “landmark” turns out to have occurred because of the deliberate invocation of Christian dissenting tradition and was followed by pedagogues and populations choosing to continue religious training in public schools, it becomes clear that we have overlooked the multiple levels and spaces where individuals raised and resolved religious liberty claims, something we should have known to avoid from the many works that have extended legal historical research beyond appellate courtrooms. We have also overlooked the sacred frameworks of juristic and popular consciousness. Perhaps it is easier for scholars to recognize religion's power over juristic reasoning when judges relied upon orthodox Protestantism in order to limit the religious liberty of minority faiths in the nineteenth century, as in the Mormon polygamy case. It is more difficult when a judge used orthodox Christian reasoning to withdraw religion from public space—or made its withdrawal a legal option—and to defend minority rights. Nonetheless, religion framed legal reasoning on both sides of the Bible War debate as it had done in church/state debates in the previous century.

Religion's power to frame law, and to limit or extend religious liberty, was part of the negotiation between sacred and secular in the eighteenth and nineteenth centuries and beyond. Its persistent power renders intelligible the widespread popular shock that greeted the United States Supreme Court's decisions of the twentieth century declaring religion in the public schools unconstitutional. Large swathes of the American population had remained unmoved by the “secular revolution,” and educational praxis remained a patchwork of regional and metropole/periphery divides of the kind found in Ohio.Footnote ¹⁵¹ “Resurgent” Protestantism after World War II and its claims on public space and power prompted a Baptist scholar to remind his religious fellows of The Great [Voluntaristic] Tradition of the American Churches that Matthews had championed, yet political conservatives were then developing a constitutional tradition that incorporated Christian capitalism and morality even as liberals governed at the national level under their own constitutional tradition.Footnote ¹⁵² Resistance to the court's decisions on public schools and other issues gave rise to the culture wars of the 1980s, which have persisted into the twenty-first century.Footnote ¹⁵³

The possibility of weaponizing constitutional history may have encouraged the simplification of historical church/state quarrels. Two overarching narratives often compete in the historiography of the Founding Era—either ours is a Christian nation or a secular republic—and it seems to follow that we now have a duty to make good on whichever is the correct narrative.Footnote ¹⁵⁴ Perhaps this is why scholars reading the Bible War briefs tend to focus upon certain legal arguments and ignore others.Footnote ¹⁵⁵ But, as Leigh Eric Schmidt has suggested, we can reject both storylines as inadequate characterizations of the past. Placing this particular historical quarrel from Ohio within the theological and legal frameworks that its participants invoked demonstrates the need to resist any temptation to oversimplify. History writing can illuminate the range of choices available to yesterday's disputants, but those choices remain, as does the hard work that a democracy requires in settling its quarrels.