Oct 2, 2013

Leonard J. Kerpelman, 1925 - 2013

Leonard J. Kerpelman, a lawyer who won a landmark Supreme Court case over Bible recitation in public schools, has died in Baltimore. He was 88. 

Kerpelman was an eccentric figure, an iconoclast fond of unpopular cases and causes.

"A wallflower, Kerpelman never was," wrote Baltimore Sun columnist Michael Olesker in 1993. "You want to talk unpopular, this man was unpopular. And uncaring about it. He kept taking on clients and causes nobody else wanted."

Upon news of Kerpelman's death, Maryland Governor Martin O'Malley agreed that was a common view, but not the only one. "Some found him irascible and cantankerous," O'Malley said. "He appeared to me to be a relentless and principled advocate. I admired the fearlessness and the nonchalant courage with which he took on authority and convention."

Kerpelman first attracted national attention in the early 1950s, when he represented a Freethought group suing to end religious tax exemptions. He told the Associated Press that he himself was an Orthodox Jew and that his decision to take the case had offended some of his Jewish friends. But, he claimed, "there's no place in the Bible that says churches have to spend this much money looking good." The legal question wasn't about religious liberty but about the right relationship of church and state.

It was Kerpelman's advocacy for one answer to that question that earned him his place in history.

Photo: The Baltimore Sun
Kerpelman circa 1971
Kerpelman's legal careers wasn't solely devoted to issues of separation of church and state, though.

He famously grabbed headlines in the late 1950s representing a client who wanted to bring bullfighting to Baltimore. As an attorney, he fought for the preservation of historic buildings and against development projects that destroyed wetlands. He fought for a reform of Maryland's jury selection system and worked for the NAACP before he very publicly had a falling out with the the civil rights organization over its perceived support for the Watts rioters.

Kerpelman was known especially for his advocacy for divorced fathers, organizing the group Fathers United for Equal Rights and earning a reputation as their "Avenging Angel Attorney." He was held in contempt of court in the late '80s, during a child abduction case, suspended for three years, and then disbarred in 1989, on the grounds he was disruptive and overcharged clients.

Some observers, such as Olesker, thought the disbarment was due to his vigorous defense of fathers' rights.

Later in life, Kerpelman was "a kind of one-man C-SPAN" in the Baltimore area, tirelessly filming state and local government events and then providing them to the public access cable channel. Even into his twilight years, he "made a career of being the stone in the shoe, the burr under the saddle, the pain in the backside," as a Maryland community paper reported in 2007.

Most famously, however, Kerpelman was known at the attorney who represented Madalyn Murray O'Hair's son in the landmark, 1963 school prayer case, Abington School District v. Schempp. That case went all the way to the Supreme Court, where the justices ruled 8 to 1 that it was unconstitutional for a government school to require children to recite scripture and participate in school-sponsored sectarian prayers.

David Silverman, president of American Atheists, the group O'Hair founded, said Kerpelman was critical to that victory. "Millions of children go to freer, more tolerant schools," Silverman said, "in part because of Mr. Kerpelman's legal expertise. He helped make school a more open environment for atheists and theists alike. American Atheists mourns his loss."

Among the religious right, the decision, along with the decision in Engel v. Vitale the previous year, is commonly described as when prayer, the Bible, or even God, got "kicked out of the public schools." Conservative activist David Barton, for example, has argued that those Supreme Court decisions are responsible for America's moral decay, citing the correlation between the dates of the rulings and the subsequent increases in sexually transmitted diseases, teenage pregnancies, single-parent households, divorce rates, alcohol consumption and violent crime. Others have claimed that school shootings are the direct result of the court's decisions.

A majority of Americans at the time supported state-mandated school prayer and Bible reading. Today, that's still true.

According to the Washington Post, Kerpelman "often pointed out that private prayers by students and nonsectarian moments of silence remained perfectly legal," but that technical nicety was largely lost in the conversation. "The Supreme Court's decision was deeply unpopular with certain sectors of the public and remains a touchstone of the conservative movement to this day."

The 1960s cases also marked a shift in the debate over prayer and Bible reading in public schools. Historically, the struggle had been between Catholics and Protestants, an issue of religious pluralism aggravated by immigration and the place of civil religion after the American Civil War. In the 19th century, there was a major lawsuit over Bible reading in schools and a constitutional amendment that would have barred religious groups from receiving any tax monies for education. Those political battles didn't involve atheists or even alleged atheists, though, but pitted White Anglo Saxon Protestants against Catholics. That, according to constitutional historian Steven K. Green, "was the closest that Americans have ever come to having a national conversation about the meaning o the religion clauses of the Constitution," and was the legal background for the case Kerpelman took to the court.

With the 20th century legal battle, though, the cultural divide was no longer between Catholics and Protestants, but seen as being between theists and non-theists, cultural conservatives and cultural liberals.

Kerpelman was not a member of O'Hair's group, American Atheists, however. He didn't associate with her after the case concluded and according to some accounts, O'Hair was anti-semitic, and called Kerpelman "a dirty little attorney" and "Sammy the Shyster."

One of Kerpelman's daughters told the Baltimore Sun that he wasn't even opposed to the idea of prayer, but only to the idea of the state mandating the specific words. His was a position of political secularism, not atheism, and not opposition to religion in the lives of individuals. He was linked with O'Hair not by shared disbelief, but by shared commitment to the importance of the state's religious neutrality.

It was a nicety generally lost on the public.

Both Kerpelman and O'Hair were vilified, after the court's decision, as communists and as atheists taking the country down the road to ruin. Both also, however, in their own ways, relished their adversarial relationships with the public. O'Hair was known as the most hated women in America, and Kerpelman, though not that famous, did not shy from his unpopularity.

He responded to his critics in a letter to the Washington Post in 1963, taking each of their criticisms in turn:
Those whose letters contained threats of physical violence: Please contact my secretary for an appointment. There is a considerable waiting list.  
Those who called me a Communist: It must have been someone who looks like me, whom you met at a cell meeting. 
Those whose letters consisted principally of obscenity: I am all innocence and did not get your message. 
Those whose letters mixed obscenity with Biblical quotations: Are you all right? 
Those who expressed fear for my immortal soul: Don’t worry yourselves. I have been a lawyer too long to be eligible for salvation anyway, though when I arrive at the celestial conference on the matter, I think I may be able to talk myself out of whatever difficulties I am in at the time.
Kerpelman is being given traditional Jewish shiva, seven days of mourning, which will end on Thursday. He will then be buried in a Reformed Jewish cemetery in Baltimore. The family requested that, in lieu of flowers, contributions in his memory be made to Soldiers Delight Conservation, Inc., a group helping to protect an area of serpentine barrens home to a number of threatened plant species and an important Maryland habitat for migratory birds and butterflies.