Gerald J. Russello, American Conservative, February 25, 2015.
Among the most vexing problems Berns addressed over his long career was that of religion in the American polity. An Episcopalian of the old school, Berns thought religion important but something that, in James Madison-like fashion, must be kept under control for fear of causing “faction.” In 1963, writing in National Review on “School Prayer and Religious Warfare,” Berns chided the Supreme Court for delving into religious controversy when it did not have to do so. The court had the year before invalidated a nonsectarian prayer in New York City public schools. Berns suggested that the court need not have decided the case, as sometimes it is more judicially appropriate not to act than it is to act, especially where questions that may cause social unrest are concerned. Here, he argued, the court could have taken refuge in the legal doctrine of “standing” to deny those bringing the case the ability to press their claim.
Berns thought that New York prayer decision was wrong as a matter not of jurisprudence but of simple prudence. The Constitution, he wrote, does not provide a definitive answer to whether such prayer should be permitted. Nor does history: here Berns referred to the Fourteenth Amendment, which imposed the strictures of the First Amendment on the states—which had in turn, from the time of the Revolution, a variety of different arrangements between church and government that provided more or less public support to religious belief. Those who would try to deny “incorporation” of the First Amendment’s rights as against the states “would need to ponder the desirability in this day of the alternative: states would still be free to disenfranchise men and women” because of their religious beliefs—a result, Berns implies, that should not be countenanced.