In my constitutional law class, we are studying a very interesting case, Berea College v. Kentucky (1908). The case involved a private religious college which wished to teach white and African American students together; this was criminalized at the time by the state of Kentucky, which had enacted a statute forbidding any educational institution from integrated teaching. The statute was upheld on a narrow ground by the Court, and Justice John Marshall Harlan (the first), himself a Kentuckian, dissented (as, of course, he often and famously did).
I reproduce below an interesting and, in my view, constitutionally provocative law-and-religion passage from Harlan’s dissenting opinion:
The capacity to impart instruction to others is given by the Almighty for beneficent purposes; and its use may not be forbidden or interfered with by government, — certainly not, unless such instruction is, in its nature, harmful to the public morals or imperils the public safety . . . . If the common-wealth of Kentucky can make it a crime to teach white and colored children together at the same time, in a private institution of learning, it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God, although such teaching may be done under the authority of parents of the children. So, if the state court be right, white and colored children may even be forbidden to sit together in a house of worship or at a communion table in the same Christian church. In the cases supposed there would be the same association of white and colored persons as would occur when pupils of the two races sit together in a private institution of learning for the purpose of receiving instruction in purely secular matters. Will it be said that the cases supposed and the case here in hand are different, in that no government, in this country, can lay unholy hands on the religious faith of the people? The answer to this suggestion is that, in the eye of the law, the right to enjoy one’s religious belief, unmolested by any human power, is no more sacred nor more fully or distinctly recognized than is the right to impart and receive instruction not harmful to the public. The denial of either right would be an infringement of the liberty inherent in the freedom secured by the fundamental law.