‘The Lord Is Not On Trial Here Today’

New Documentary Examines The Importance Of The Supreme Court’s First Religion-In-Schools Decision

Jay Rosenstein, an associate professor of journalism at the University of Illinois at Urbana-Champaign, has produced a new documentary on McCollum v. Board of Education, a pivotal 1948 church-state ruling by the U.S. Supreme Court.

In McCollum, the high court voted 8-1 to strike down allegedly voluntary religious instruction on-site in the Champaign, Ill., public schools. The case against the “released time” program was brought by Vashti McCollum on behalf of her son, Jim. The family endured much harassment but stayed true to the cause of church-state separation. Jim McCollum has been active in Americans United for many years and has served on AU’s National Advisory Council. His brother, Dan, wrote a book about the case. (For more, see “One Woman’s Fight,” February 2008 Church & State.)

Rosenstein’s documentary, “The Lord Is Not On Trial Here Today” (www.thelordisnotontrialheretoday.com) has already won two Emmy Awards. It will air nationally on PBS stations in May. (Check local listings.) He recently discussed the film with Church & State.

Q. The McCollum decision was a landmark Supreme Court ruling, but it’s not terribly well known outside of legal circles. What got you interested in the ruling?

A. I think “not terribly well known” is an understatement. I’d describe it as “unknown”! However, here in Champaign, Ill., where the case was based, the case still has a certain amount of notoriety. It is the only local case to have ever risen to the Supreme Court level. So it’s somewhat famous, although pretty much exclusively with people 60 years old and older.

My initial interest was for just that reason; I had heard there was a local case that went to the Supreme Court, so I decided to look into it. I also knew the McCollum family had been involved, and Dan McCollum was an acquaintance of mine (not surprising, since everyone in Champaign knows Dan McCollum). When I learned more about the case, I was immediately hooked for two reasons. First, because I am a passionate believer in separation of church and state in public schools. That comes mostly, I think, from the fact that I’m a member of a religious minority – I’m Jewish – and I know bringing religion into the public schools always means someone else forcing their religion and views on my children. And second, because here was this incredibly important and literally ground-breaking case in American history, and no one seems to know about it. Nothing is more seductive to a story-teller than a vitally important story that is still unknown. It’s what we live for.

Q. What were your goals with the film?

A. There are several. The most obvious, is to illuminate the story of Vashti McCollum and her case to the broader public. But it’s also an opportunity to show people how our constitutional rights really are secured in this country. As the late Victor Stone, a legal scholar, told me, the Constitution is not self-executing; until there are disputes about its meaning, it is largely ignored. That means it usually takes an incredibly brave, courageous person to step forward and dispute some part of the Constitution, often resulting in terrible consequences for the individual and/or their family. Yet most of us know nothing of those struggles. They just become names in a law book. The McCollum case is a perfect example.

We just assume, for instance, that there is separation of church and state in public schools because the First Amendment says so. But that’s not the reason. The reason is because someone fought for it. So I want people to see and experience what it really takes for one of our rights to be secured, that behind each right is the story of an individual who makes great personal sacrifices for the good of us all. And Vashti McCollum is just one of those people.

And finally, and perhaps most important of all, I want to show the American public exactly where the phrase “separation of church and state” comes from, and especially how and why it became part of our laws. Because, as you know better than anyone, there is a growing movement going on right now to attack the legitimacy of the phrase.

Q. Most Americans, when they think about religion in public schools and the Supreme Court, recall the school prayer rulings of the early 1960s. In what sense was McCollum an important precursor to those decisions?

A. McCollum is the first brick in the wall of separation between church and state in public schools. That’s my favorite way to describe it. The McCollum case is the first violation of the first 10 words of the First Amendment, known as the Establishment Clause – “Congress shall make no law respecting an establishment of religion” – in U.S. Supreme Court history. That is huge. Think about it: from the writing of the Bill of Rights until 1947 and the McCollum case, the court had never had a violation of this clause. So in some ways, without any guidance from the Supreme Court, that meant there were virtually no limitations as to what you could do regarding religion and government.

As law professor David Meyer explains in the film, in 1945, the meaning of the Establishment Clause was still basically up for grabs. McCollum is the first time the court gave some clear guidance as to what that phrase really meant – they said, in effect, here is one thing that you cannot do. This is also the first time in American history that the Supreme Court prohibited a religious activity in a public school. That’s pretty historic. So in the McCollum ruling, the Supreme Court basically laid down the first brick in the wall of separation between church and state in public schools. And each subsequent case, such as school prayer, adds – or doesn’t add – another brick in that wall. (My apologies to Pink Floyd for borrowing that last phrase.)

Q. The McCollums’ legal challenge came in the post-World War II era. You spend a lot of time examining this cultural backdrop. What was the country like then, and how did that atmosphere contribute to the difficulties of the McCollum family?

A. Well, the Allied victory in World War II was in many ways characterized as a victory of the believers in God over the godless. Americans viewed the victory as evidence that we had God on our side (apologies to Bob Dylan for that one). That led, as historian Bruce Dierenfield says, to a religious revival in America, where a belief in God was seen as a sign of patriotism. But, if you were an atheist, if you didn’t believe in God, then you were seen as the opposite of a patriot. You were anti-American, which, quickly after World War II, was defined as also being a communist, and most of us know how things played out from there if you were accused of being a communist. As Dan told me in an interview, to say you were a supporter of the McCollum family in their case was basically confessing you were an atheist. It was dangerous to publicly support the McCollums, so many of their friends felt they had to be silent. That left the McCollum family pretty isolated for the three years of the court battle.

Q. There’s an interesting anecdote about the title of your film. Can you tell us about that?

A. Yes. On the first day of the trial in Champaign, a man described as having a long beard and wearing overalls and carrying a Bible under his arm, strode up to the school board’s attorney, John Franklin, and announced he was there to testify for the Lord. Franklin turns to him and replies, “The Lord, sir, is not on trial here today.” As soon as I heard Dan McCollum, Vashti’s son, tell that story, I knew I wanted to use it as the title of my film. Dan was writing a book about the case, which he has since published, titled, The Lord Was Not On Trial. So I asked him for permission to use a similar title for my film, and he agreed.

Q. Your interview with Vashti McCollum was the last one she gave before she died in August of 2006. In the film, she comes off as quite feisty. What were your impressions of her?

A. I get asked that question all the time, and my answer is: what you see is what you get with Vashti. Meaning her personality – at least my experience of it – is exactly what you see in the film. Clearly she is a tough woman who isn’t going to take anything from anyone, even at age 92, which is when I met her. As her son Dan said in an interview, “This is a woman for whom patience is no virtue.” So it’s easy to see that she had the make-up to be able to withstand the years of abuse she had to endure for filing this case.

In fact, one of the reasons that the Chicago Action Council, the group who actually funded her case, decided to throw their support behind her was that they felt she had the personal strength and stamina to see this whole challenge through to the end. But one thing I should mention, which is not really apparent from the film, is that she was a tiny woman. I don’t think she was even five feet tall. But I think her personality is so strong that she probably isn’t perceived as being small. Obviously, her sons knew her best, and at the memorial service for her after her death, her son Jim’s eulogy was titled, “My mom, the sarge.” That probably says it all.

Q. When the case reached the U.S. Supreme Court, the attorney for the school district, John Franklin, seems to have overplayed his hand. There is some indication that he even offended the justices. What happened?

A. Mind you, all I know about this is from what I have read in the news coverage of the time, but I do get a sense that Franklin might have been a bit overconfident, maybe even cocky, when he argued the case in front of the Supreme Court. I don’t mean to disparage Franklin as a lawyer, as his reputation from friends and foes alike is that he was an outstanding attorney, but that’s the way his performance must have come across because that was how it was reported consistently. Perhaps he was showboating a bit as part of his strategy. I don’t know. But that was not consistent with his nature; he wasn’t a William Kuntsler or a Clarence Darrow. But I sure wish I could have interviewed him.

Q. In the film, one gets a sense of the incredible harassment the McCollum family endured. Can you tell us a little about some of what they went through?

A. As I mentioned before, most of the McCollums’ friends had to – at least publicly – turn their backs on the McCollums because they felt it was too risky to support them. Champaign was then, and still is, a university town, and many of Vashti’s friends felt they had to cut off contact with Vashti or their husbands’ university jobs would be at risk. Vashti’s husband Pappy was a university professor too, and his job most definitely was threatened by members of the Illinois legislature. According to Vashti, it took 15 years for Pappy to get a promotion, which is an unheard of amount of time. So the threats and repercussions were real. The McCollums basically became outcasts in the community. Then there was lots of hate mail, anonymous phone threats, their cat was lynched, the two older sons, Jim and Dan, were picked on, beaten up – it goes on and on. It’s sad to say, but it’s really the same old stuff that happens, even today, to people who stand up against something that is popular.

Q. Your film concludes with a quote from a legal expert who says that the McCollum ruling, while shocking in 1948, would be non-controversial today. But would it really? Many Americans, after all, still clamor for official religion in public schools. Have we really changed since 1948?

A. My answer to your question is yes and no. I think it all depends on what lens you are viewing things through. What I think Professor Ron Rotunda, who speaks the quote you are referencing, means when he says that, is that if you were to conduct a poll of the American people right now, you would find that a huge majority would acknowledge that separation of church and state in public schools is part of our laws and a legitimate concept. They might not agree with it, but they would acknowledge that the concept exists. But in 1945, just the idea of separation of church and state in public schools was shocking, and to some a total outrage.

Q. Is there anything else you’d like to add about the film and its subject?

A. I am a professor at the University of Illinois, and sometimes I teach a course on documentary film which always includes a unit on filmmaker Ken Burns. And my favorite joke about Burns – which is basically true – is that whenever he is promoting his newest film, he always says, “You can’t understand America unless you understand...” and he adds the subject of his latest film. For example, “You can’t understand America unless you understand the Civil War,” or “You can’t understand America unless you understand baseball.” Well, you can’t understand America unless you understand separation of church and state and the McCollum case!

Special Offer!
Members and supporters of Americans United can buy a copy of the “The Lord Is Not On Trial Here Today” on DVD for $25 (shipping included). This offer is available exclusively to AU supporters. For more information, go to: www.jayrosenstein.com/auoffer.