Tag: First Amendment

“Have To” History: Zorach v. Clauson (1952)

~ Blue Cereal

Why Did the Children Cross the Road?

Background

The City of New York, responding to the Court’s decision in McCollum v. Board of Education (1948), created a “released time” program largely identical to that struck down in Champaign, Illinois. The only substantial difference was that students whose families gave permission actually left school grounds for religious instruction during the school day.

Students not participating were required to remain in school. School officials communicated with religious instructors to confirm the attendance of those released, and the school handled the discipline of anyone using the occasion to skip out altogether. In short, the schools were certainly facilitating religious instruction, even if they weren’t actually providing it on site.

Several parents objected to the program as a violation of the Establishment Clause. (There was also a legal argument made that it violated “free exercise,” but this was quickly dismissed by the courts.) Schools were clearly promoting religious instruction, they argued, and in only of a handful of favored varieties. Staff exerted pressure on students to conform and gave tacit approval to the verbal and corporeal abuse they suffered from their more devout peers. 

Changing Circumstances

A Fence of Separation

The physical location of “released time” religious instruction wasn’t the only contextual shift since McCollum. The United States was in the early years of McCarthyism and had just entered the Korean War. Patriotic Americans had begun to suspect Communist infiltration in their midst, already at work at all levels of government and sowing the seeds of chaos and godlessness. While the social and political ideologies of Marxism and the continued presence of people with funny last names threatened the nation with internal decay, the Soviets began testing their own atom bombs in hopes of inflicting some external destruction as well.

The celebrations of freedom and democracy which lingered after World War II were rapidly fading in favor of fear, suspicion, and a sense of persecuted minority status among the straight white Protestants who still made up nearly 90% of the nation’s population (and virtually 100% of its leadership). Historically, it seems, nothing threatens entrenched demographic power like a handful of outliers thinking their lives matter as well. 

Despite these cultural shifts, had this been the same Supreme Court which decided McCollum four years earlier, it’s impossible to know how they’d have adapted to the shift from “on campus” to “up the street a ways.” The Court, however, had lost two members in the interval – Justice Wiley Rutledge and Justice Frank Murphy, both FDR appointees who’d been reliable defenders of individual liberties (by the standards of the times). They were replaced by Truman appointees Justice Sherman Minton and Justice Tom C. Clark respectively, both of whom were virulently anti-Communist and pro-God-as-cultural-unifier.

The ideology of our Justices matters. While most make every effort to remain faithful to the law and the Constitution on which it is built, the glasses one wears often determine the color and clarity of everything one sees.

The Decision

In a 6 – 3 decision, the Court determined that the logistical change from on-campus to off-campus religious instruction during the school day was enough to satisfy the limitations imposed by the First Amendment (and applied to the states via the Fourteenth). Justice William O. Douglas wrote the Majority Opinion, in which he insisted there’d been no evidence to suggest students felt coerced or otherwise pressured to attend religion classes. If there had been, by golly, the Court would definitely not be OK with that.

Absent such coercion, however, it would be a mistake for the Court to too easily find “establishment” lurking everywhere or to treat any recognition of faith as a threat to the American way of life:

The First Amendment… does not say that, in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other… Otherwise the state and religion would be aliens to each other — hostile, suspicious, and even unfriendly. Churches could not be required to pay even property taxes. Municipalities would not be permitted to render police or fire protection to religious groups…

Jurisprudence often employs this sort of “taken to a logical extreme” test when weighing its opinions. It’s a colorful, yet prudent, means of weighing potential consequences of this or that decision ahead of time. At the same time, it’s a relatively short leap from “how might this be interpreted if we’re not careful” to “what other wacky scenarios could we invoke to justify what we’re about to do?”

Here’s the most famous bit from Zorach’s Majority Opinion:

We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs.

To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.

Dissenting Opinions

Each of the three dissenting justices submitted his own oppugnant exposition. Normally, this would suggest differing lines of legal reasoning used to reach comparable conclusions, or a desire on the part of one or more justices to more fully explore some salient element of the constitutional conundrums involved. In this case, however, the opinions read as if they were simply too horrified to share a solitary invective. 

Justice Robert H. Jackson, in particular, did not take at all kindly the majority’s suggestion that opposition to this “released time” program on constitutional grounds implied a “hostility to religion,” nor was he impressed by the distinctions drawn between this case and McCollum:

The greater effectiveness of this system over voluntary attendance after school hours is due to the truant officer who, if the youngster fails to go to the Church school, dogs him back to the public school room. Here schooling is more or less suspended during the “released time” so the nonreligious attendants will not forge ahead of the churchgoing absentees. But it serves as a temporary jail for a pupil who will not go to Church. It takes more subtlety of mind than I possess to deny that this is governmental constraint in support of religion. It is as unconstitutional, in my view, when exerted by indirection as when exercised forthrightly.

As one whose children, as a matter of free choice, have been sent to privately supported Church schools, I may challenge the Court’s suggestion that opposition to this plan can only be anti-religious, atheistic, or agnostic. My evangelistic brethren confuse an objection to compulsion with an objection to religion. It is possible to hold a faith with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.

Justice Hugo Black makes almost the exact same argument, but with his own brand of jurisprudential outrage leaving pithy spittle splattered all ‘round:

Here, the sole question is whether New York can use its compulsory education laws to help religious sects get attendants presumably too unenthusiastic to go unless moved to do so by the pressure of this state machinery. That this is the plan, purpose, design and consequence of the New York program cannot be denied. The state thus makes religious sects beneficiaries of its power to compel children to attend secular schools… In considering whether a state has entered this forbidden field, the question is not whether it has entered too far, but whether it has entered at all. New York is manipulating its compulsory education laws to help religious sects get pupils. This is not separation, but combination, of Church and State.

The Court’s validation of the New York system rests in part on its statement that Americans are “a religious people whose institutions presuppose a Supreme Being.” … It was precisely because Eighteenth Century Americans were a religious people divided into many fighting sects that we were given the constitutional mandate to keep Church and State completely separate… It is this neutrality the Court abandons today…

Justice Frankfurter preferred to express his disappointment through the sort of dry snippiness in which he periodically excelled:

The Court tells us that, in the maintenance of its public schools, “{The State government} can close its doors or suspend its operations” so that its citizens may be free for religious devotions or instruction. If that were the issue, it would not rise to the dignity of a constitutional controversy…

The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case…

The deeply divisive controversy aroused by the attempts to secure public school pupils for sectarian instruction would promptly end if the advocates of such instruction were content to have the school “close its doors or suspend its operations” — that is, dismiss classes in their entirety, without discrimination — instead of seeking to use the public schools as the instrument for securing attendance at denominational classes. The unwillingness of the promoters of this movement to dispense with such use of the public schools betrays a surprising want of confidence in the inherent power of the various faiths to draw children to outside sectarian classes — an attitude that hardly reflects the faith of the greatest religious spirits.

So, ouch.

Aftermath

The issues involved in McCollum and Zorach would spread beyond school grounds, eventually manifesting in questions about whether or not employees could be fired for taking Saturday as the Sabbath instead of Sunday, or whether or not Native American inmates had a right to ceremonial peyote while incarcerated. The natural tension between “free exercise” and “establishment” seemed to increase proportionally as democracy and equality expanded.

As laudable as freedom and diversity were (and are), they spawn an existential dilemma: how do we maintain a functioning political society in which “all men are created equal” without some sort of unifying culture or belief system to hold us all together? The uncertainty involved will contribute to some rather crazy times, particularly a decade after Zorach when the Supreme Court would kick God out of school altogether.

RELATED POST: “Have To” History: McCollum v. Board of Education (1948)

RELATED POST: “Have To” History: A Wall of Separation

RELATED POST: The Blaine Game

“Have To” History: McCollum v. Board of Education (1948)

~ Blue Cereal

Should I Pray or Should I Go?

Three Big Things:

1. McCollum v. Board of Education was the first Supreme Court case to test the idea of “released time” during the school day for religious instruction by outside groups or religious leaders.

2. The Court’s four different written opinions demonstrate the complexity of applying absolutist rhetoric (“wall of separation”) to specific circumstances without trampling on the rights of local decision-makers.

3. The issues debated in McCollum reappeared in various iterations long after this particular decision and still come up in only slightly modified forms today.

Background

Church State WallThe Board of Education in Champaign, Illinois, allowed a local religious organization consisting of clergy and other volunteers to come into their public schools and teach religion classes during the school day. The organization, calling itself the Champaign Council on Religious Education, offered Protestant, Catholic, or Jewish options. The classes were “voluntary,” and any expenses were paid for by the Council, not the school district or parents.

This wasn’t unique in the world of local public schools. It even had a name: “released time.” The implication was that students were temporarily “released” from school to attend “voluntary” religious classes. In practice, they had two choices – attend the religious classes, or go to whatever room or part of the school was designated for non-participants.

Vashti McCollum, an atheist with a cool name, objected to this system on several bases. Primarily, she argued, this use of public school facilities during the school day amounted to “Establishment,” thus violating the very first clause of the First Amendment. In practice, she said, students like her eight-year old son, James, faced substantial pressure from teachers and administration to attend. He was eventually forced to sit alone in the hallway while other students were being indoctrinated and endured mockery and ostracism from his peers with the tacit sanction of his teachers and other school staff. Furthermore, McCollum claimed, the power of the Council and local School Superintendent to pick and choose which religious leaders were included amounted to government censorship of some religious views in favor of others.

Kid Alone In The HallMcCollum’s case reached the Supreme Court in 1947, the same year Everson v. Board of Education was decided. In Everson, the Court determined that state assistance to parents whose children rode public busses to school was fine, even though that assistance included families utilizing parochial schools. Everson was the first case of its kind to reach the Court and involved difficult questions about what the “wall of separation” meant in practice when applied to state and local government via the 14th Amendment. Plus, it hadn’t been decided at the time McCollum first began pursuing her case in the courts. It’s unlikely she or anyone else involved had even heard of it yet.

In other words, McCollum was stepping out with absolutely no reason to think she had a chance of winning and no real precedent on which to build her case. Her demands in the name of “separation of church and state,” which initially went well-beyond the “released time” issue, were inflammatory and unpopular. At the same time, she was seeking no damages and wasn’t insisting that anyone be fired or go to jail. What she asked of the courts was a writ of mandamus –an order from the bench to government officials to fulfill their duties properly and fix a mistake they were making, whether as an abuse of power or simply because they didn’t know any better. (The reason “writ of mandamus” sounds like something from Harry Potter is because the Latin root hints at its English offspring in words like “mandatory” or “command.”)

The McCollum family endured the usual pushback whenever community religious values were challenged – she was fired from her job for vaguely-defined reasons, they were physically threatened and verbally harassed, and their home periodically pelted with rocks and garbage. The family pet – a cat, in this case – was also killed in retaliation for her efforts.

At least those “released time” classes were doing a great job inculcating the values of their approved faiths.

Stained Glass of JusticeWhen McCollum’s case reached the Supreme Court, a supportive amicus curiae (“friend of the court”) brief was filed by none other than the Baptist Joint Committee for Religious Liberty. This group was in some ways the intellectual and spiritual descendants of those whacky Danbury Baptists who a century-and-a-half before had written to President Thomas Jefferson about the need for protection from the State. Jefferson’s response coined the phrase “a wall of separation,” which quickly became canon in interpreting the two church-state clauses of the First Amendment.

So that was nice.

The Decision(s)

The Court struck down the “released time” program and any similar programs in which schools set aside class time for religious instruction. Although the classes were technically voluntary and led by a mix of Protestant, Catholic, and Jewish clergy and other volunteers, the use of school facilities during school hours violated the Establishment Clause of the First Amendment as applied to the states by the Fourteenth.

The case prompted no fewer than four distinct written opinions – the Majority Opinion, penned by Justice Hugo L. Black, two separate concurring opinions, written by Justice Felix Frankfurter (joined by two other justices) and Justice Robert J. Jackson respectively, and a dissent from Justice Stanley F. Reed. The variety of opinions expressed, even among those supporting the decision, offer rich insight into the different facets of this and subsequent related cases. The issues with which they wrestle will become familiar and appear in various forms in dozens of subsequent church-school cases.

Justice Hugo BlackThe Majority Opinion

Justice Hugo Black, writing for the majority, focused on the core issue of “released time” as a violation of the Establishment Clause:

The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools… Classes were conducted in the regular classrooms of the school building. Students who did not choose to take the religious instruction were not released from public school duties; they were required to leave their classrooms and go to some other place in the school building for pursuit of their secular studies. On the other hand, students who were released from secular study for the religious instructions were required to be present at the religious classes. Reports of their presence or absence were to be made to their secular teachers.

The foregoing facts, without reference to others that appear in the record, show the use of tax supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education… This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith…

He cited Everson by way of support, then added what would become something of a requisite disclaimer in subsequent church-school separation cases:

To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings…

{T}he First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable.

Justice Felix FrankfurterFrankfurter’s Concurrence

Justice Felix Frankfurter’s tone as he introduced his concurring thoughts could be perceived as a tad, well… snippy. If one weren’t paying attention, it would be easy to assume he was setting up a scathing dissent rather than a supportive addendum:

We are all agreed that the First and the Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an “established church.” But agreement, in the abstract, that the First Amendment was designed to erect a “wall of separation between church and State” does not preclude a clash of views as to what the wall separates.

Involved is not only the Constitutional principle, but the implications of judicial review in its enforcement. Accommodation of legislative freedom and Constitutional limitations upon that freedom cannot be achieved by a mere phrase. We cannot illuminatingly apply the “wall of separation” metaphor until we have considered the relevant history of religious education in America, the place of the “released time” movement in that history, and its precise manifestation in the case before us.

Justice Frankfurter went on to anchor his concurring opinion in just such an extended historical analysis and application. He even quoted President Ulysses S. Grant. How often does THAT happen?

His primary argument was that this was not a new issue; the idea that public education should remain unencumbered with shifting local religious allegiances was not part of some radical new judicial activism. “Released time” was from the beginning largely an excuse to leverage the power of the state to compel public school attendance into an opportunity for indoctrinating young people who simply weren’t interested enough to listen otherwise.

Justice Robert JacksonJackson’s Concurrence

Justice Robert H. Jackson, too, offered a supporting opinion which somehow didn’t sound entirely supportive. He agreed with the Court’s decision except for a few minor things, such as his uncertainty they’d established their requisite jurisdiction over the case to begin with. Jackson simply couldn’t bring himself to embrace the suggestion that the First Amendment was intended to provide the sort of relief sought by the McCollums:

When a person is required to submit to some religious rite or instruction or is deprived or threatened with deprivation of his freedom for resisting such unconstitutional requirement, {this Court} may then set him free or enjoin his prosecution. Typical of such cases was West Virginia State Board of Education v. Barnette (1943). There, penalties were threatened against both parent and child for refusal of the latter to perform a compulsory ritual which offended his convictions…

But here, complainant’s son may join religious classes if he chooses and if his parents so request, or he may stay out of them. The complaint is that, when others join and he does not, it sets him apart as a dissenter, which is humiliating. Even admitting this to be true, it may be doubted whether the Constitution, which, of course, protects the right to dissent, can be construed also to protect one from the embarrassment that always attends nonconformity, whether in religion, politics, behavior or dress…

He went on to express concern that the Court did not specifically reject the wide variety of other complaints and demands brought by McCollum as part of her case. Even granting that the “released time” thing is a no-no, he didn’t like the implication that she or anyone else with their own list of religious slights or other offenses taken might conceivably cite the case by way of demanding judicial protection from pretty much anything that hurt their little feelings or offended their bizarre worldviews.

He put it a bit more jurisprudentially than that, but not by much.

Justice Stanley ReedReed’s Dissent

Justice Stanley F. Reed, the sole dissenter in the case, had a fairly straightforward explanation of his primary objection to the Court’s ruling:

I find it difficult to extract from the opinions any conclusion as to what it is in the Champaign plan that is unconstitutional. Is it the use of school buildings for religious instruction; the release of pupils by the schools for religious instruction during school hours; the so-called assistance by teachers in handing out the request cards to pupils, in keeping lists of them for release and records of their attendance; or the action of the principals in arranging an opportunity for the classes and the appearance of the Council’s instructors?

None of the reversing opinions say whether the purpose of the Champaign plan for religious instruction during school hours is unconstitutional, or whether it is some ingredient used in or omitted from the formula that makes the plan unconstitutional.

In other words, he found the majority’s explanation of why “released time” programs were unconstitutional unconvincing primarily because the majority hadn’t explained what made them constitutional.

Whether his criticism was justified in this particular case or not, the principle he evoked is sound. Clarity as to the Court’s reasoning in any decision is essential if those impacted are to have any idea what is or is not acceptable going forward. Lower courts are expected to look to the Supreme Court for guidance in deciding related cases in their states or federal districts – something difficult to do if the explanation really were, in essence, “it just feels unconstitutional.”

Reed echoed Justice Frankfurter in his concern that the Court may have been leaning too heavily on a catchy phrase and not heavily enough on the history and context behind it:

{T}he “wall of separation between church and State” that Mr. Jefferson built at the University which he founded did not exclude religious education from that school. The difference between the generality of his statements on the separation of church and state and the specificity of his conclusions on education are considerable. A rule of law should not be drawn from a figure of speech.

Like Justice Jackson, Justice Reed was not persuaded that a child’s humiliation, even when school officials were culpable, was sufficient to trigger constitutional review:
It seems obvious that the action of the School Board in permitting religious education in certain grades of the schools by all faiths did not prohibit the free exercise of religion {by students of other faiths or beliefs}. Even assuming that certain children who did not elect to take instruction are embarrassed to remain outside of the classes, one can hardly speak of that embarrassment as a prohibition against the free exercise of religion.

Reed’s dissent concludes with an argument which would resurface in various forms almost every time public schools and proselytization had a spat in following decades:

The prohibition of enactments respecting the establishment of religion do not bar every friendly gesture between church and state. It is not an absolute prohibition against every conceivable situation where the two may work together, any more than the other provisions of the First Amendment — free speech, free press — are absolutes. If abuses occur, such as the use of the instruction hour for sectarian purposes, I have no doubt… that Illinois will promptly correct them…

This Court cannot be too cautious in upsetting practices embedded in our society by many years of experience. A state is entitled to have great leeway in its legislation when dealing with the important social problems of its population… Devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with accepted habits of our people.

Aftermath

Four short years later, the Court would hear Zorach v. Clauson (1952), a New York case quite similar to McCollum with only one notable difference – students who wished to participate in religious instruction during the school day were “released” to leave school grounds and report to religious training elsewhere. The Court determined in a 6 – 3 decision as perfectly constitutional. The Majority Opinion, written by Justice William O. Douglas (who’d sided with the majority in McCollum), strongly echoed Justice Reed’s dissent from four years before.

Clearly, the Court was still working out the details of this “wall of separation.”

RELATED POST: “Have To” History: A Wall of Separation

RELATED POST: The Jehovah’s Witnesses Flag Cases (Part One)

RELATED POST: The Jehovah’s Witnesses Flag Cases (Part Two)

The Jehovah’s Witnesses Flag Cases (Part Two)

~ Blue Cereal

Church State StreetsI’ve started putting together information and drafts for something which may or may not be titled “Have To” History: A Wall of Separation (Public School Edition). Call me wacky, but I find this stuff fascinating.

Below and in Part One, I’m sharing the drafts of two of earliest cases likely to be included. Both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish. In the second, the Court completely reversed itself only three years after the first – so that was unexpected.

Recap of the Story So Far…

Jehovah’s Witnesses took (and take) literally the Bible’s exhortation to “have no other gods before me.” After experiencing persecution in Germany for not pledging their allegiance to the Fuhrer, leaders of the Witnesses discouraged saluting or reciting oaths to any national symbol – including the American flag. Many public schools in the U.S. required students to salute the American flag and say the Pledge of Allegiance, hoping this would foster patriotism and a sense of civic duty and community in the youth. When young Jehovah’s Witnesses refused, they were punished with expulsion.

The Jehovah’s Witnesses insisted this was a violation of religious liberty. In 1940, the Supreme Court disagreed. “Sorry this offends your beliefs,” the Court ruled, “but national unity is a valid goal of schooling and the law didn’t target your people on purpose.” (I’m paraphrasing.)

Part Two: West Virginia State Board of Education v. Barnette (1943)

NoJWSignAfter the Supreme Court’s decision in Minersville School District v. Gobitis (1940), harassment and violence towards Jehovah’s Witnesses surged dramatically across the United States. Many felt validated and encouraged by the Court’s decision, which in their mind had essentially prioritized loyalty and being a good American over freedom of religion, speech, or association. It didn’t help that the U.S. entered World War II shortly thereafter, making patriotism and loyalty towards one’s nation and the flag representing it even more essential in the minds of many and any deviance not merely suspect, but dangerous.

Only a few decades before Gobitis was the first “Red Scare,” in which all things foreign or strange were suspected of undermining the American way of life and required hostile, or even violent response. A decade after the Court’s reversal in Barnette, Congress would launch hearings into the “Communist infiltration” of government, publishing, and the entertainment industry, resulting in hundreds – possibly thousands – of loyal citizens losing their livelihoods and enduring ostracism by friends and neighbors.

In other words, being the “other” in the 20th century wasn’t simply a matter of some suspicious looks or hostile tweets. It meant you weren’t safe just going about your business, no matter how hard you worked, how many taxes you paid, or how devoted you were to your faith and your family. The Jehovah’s Witnesses weren’t Communists, of course – but they were weird and often unpleasant. So… close enough.

A Free, Public Re-Education

Rockwell Pledge KidsPerhaps not surprisingly, persecution only strengthened the resolve of the Jehovah’s Witnesses. Their kids still to have other gods before the Big One. It was a mere three years before almost the exact same case as Gobitis came before the High Court once again. This time, the results would be a tiny bit different.

Following the Court’s decision in Gobitis, West Virginia and other states upped their citizenship game and began requiring more intensive public school courses in history, civics, and Constitutional studies. They wanted there to be no doubt about the meaning of traditional American values, like “recite what we tell you and salute the symbols we choose or pay the price!” The West Virginia Board of Education issued a statewide resolution requiring the Pledge and flag salutes at all public school events; refusal to participate would be considered “insubordination” and dealt with harshly. The statute quoted extensively from the Majority Opinion in Gobitis by way of justification.

So… Ouch.

Stiff Arm Salute (notice the palms upwards this time)West Virginia and other states did allow some modification of the stiff-arm salute now associated with the Nazi Party. (Presumably, it was OK to behave like fascists as long as one used a slightly different arm motion while so doing.) They also tweaked the rules concerning expulsion. Children not saluting the flag and saying the Pledge would be sent home, after which parents would be prosecuted for not having them in school.

Think what you like about mandatory oaths of fealty, this is a nice touch, statutorily-speaking. It rubs salt into the stripes on their backs, but in a “What? We’re just trying to help!” kind-of-way.

Marie and Gathie Barnette were Jehovah’s Witnesses who quietly refused to swear allegiance to anyone or anything other than the Lord their God. They were expelled, and once again the Witnesses began legal proceedings, despite the Court’s decision only a few years before.

Cases like the Barnettes’s don’t magically appear before the Supreme Court. They’re filed in the appropriate local court first, then potentially appealed up through the hierarchy. Barnette v. West Virginia State Board of Education (the names are reversed because initially the Barnettes were the plaintiffs) began in the U.S. District Court for the Southern District of West Virginia and was heard by a three-judge panel in 1942.

District Courts are generally expected to follow the precedents set by those up the food chain – the Supreme Court or, lacking clarity from D.C., the closest District Court of Appeals. There are many cases involving issues not specifically addressed by the higher courts, of course, and from time to time you’ll get a rogue judge or two who go against the grain, but normally a case like Barnette would have been fairly straightforward, given its similarity to Gobitis a few short years prior. Clearly the Court would decide for the schools and everyone could go home.

Only they didn’t.

“Ordinarily We Would Feel Constrained…”

Lady Justice In a rather bold move, the three-judge court not only decided in favor of the Barnettes, but made no effort to justify their decision by pretending this case was in some way different than its predecessor. Instead, they simply explained their reasoning based on developments since Gobitis, along with their own interpretation of the law and the Bill of Rights. Taken together, it’s a written opinion as eloquent as anything coming from the Supremes in those days:

Ordinarily we would feel constrained to follow an unreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other justices in a special dissenting opinion in Jones v. City of Opelika…

There is, of course, nothing improper in requiring a flag salute in the schools. On the contrary, we regard it as a highly desirable ceremony calculated to inspire in the pupils a proper love of country and reverence for its institutions. And, from our point of view, we see nothing in the salute which could reasonably be held a violation of any of the commandments in the Bible or of any of the duties owing by man to his Maker. But this is not the question before us…

Courts may decide whether the public welfare is jeopardized by acts done or omitted because of religious belief; but they have nothing to do with determining the reasonableness of the belief. That is necessarily a matter of individual conscience. There is hardly a group of religious people to be found in the world who do not hold to beliefs and regard practices as important which seem utterly foolish and lacking in reason to others equally wise and religious; and for the courts to attempt to distinguish between religious beliefs or practices on the ground that they are reasonable or unreasonable would be for them to embark upon a hopeless undertaking and one which would inevitably result in the end of religious liberty.

There is not a religious persecution in history that was not justified in the eyes of those engaging in it on the ground that it was reasonable and right and that the persons whose practices were suppressed were guilty of stubborn folly hurtful to the general welfare…

That last bit echoes Justice Stone’s dissent in Gobitis. Justice Robert H. Jackson, who will write the Majority Opinion in Barnette, explores the theme from a different angle, but just as clearly.

Nine Justices, One Hundred and Eighty Degrees

Blue SalutingThe State appealed the case up the ladder (hence the reversal in the order of the names) and the Supreme Court was given an opportunity to try again. This time, they ruled 6 – 3 in favor of the Jehovah’s Witnesses. The majority focused less on religious freedom for Jehovah’s Witnesses and more on freedom of speech (or lack thereof) in general. It’s not just that children of certain faiths should be free to respectfully abstain from public recitations of mandatory patriotism, they argued – it was bigger than that. There are certain core liberties which should be protected for everyone, regardless of the specific belief system or point of view involved:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

It was important to the decision that the children’s abstention didn’t interfere with the rights of those around them to go right ahead and say it and wasn’t disruptive in and of itself:

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so.

Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual…

The non-disruptive element matters in this context because “disruption of the learning environment” is often sufficient to allow authorities to restrict behaviors in a school setting which would typically be protected in the larger adult world. (A generation later, the non-disruptive impact of black armbands worn to protest the Vietnam War will be central to the Court’s protection free speech for high school students in Tinker v. Des Moines, 1969.)

In essence, the Court supported the concept of encouraging patriotism and national unity; it rejected the suggestion by the State that the best way to do this was mandatory rituals – especially when they violated the conscience of those involved.

Aftermath

LDS PolygamyBarnette was a turning point for jurisprudence involving the freedoms enshrined in the Bill of Rights. Initially, the first ten Amendments were added to the new Constitution as limits on what the federal government could do or demand of individuals. While state constitutions might offer similar protections for speech, religion, etc., there was no national standard for such things until the first half of the 20th century, when the Court began utilizing the 14th Amendment (ratified just after the Civil War, in 1868) to apply the protections and ideals of the Bill of Rights to the relationship between citizens and state or local government as well.

Even then, the Court often drew a broad distinction between protecting belief and allowing religiously-driven behavior which violated state or local law. This “belief-action doctrine” was most clearly expressed in Reynolds v. United States (1878), a case involving the 19th century’s most vilified religious group, the Church of Jesus Christ of Latter Day Saints –more popularly known as the Mormons.

At issue was the practice of polygamy, and whether or not one’s sincerely held religious convictions could override man’s prohibitions against a practice steeped in history, practiced peacefully among consenting adults, and harming no one. This being the U.S., the answer was inevitable: of course not, because eewwwww!

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices…

Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.

Social Contract ChartThe basic principle still holds – there are laws and expectations ever citizen must heed, regardless of belief system or personal creed. After Barnette, though, sincerely held religious convictions gained substantial ground in terms of what they could or couldn’t be used to justify, both in the world of public education and beyond. Also magnified was the idea that fundamental freedoms like those guaranteed in the Bill of Rights shouldn’t have to wait on legislatures or the next election to find protection – an approach which will be applied to full effect by the Warren Court of the 1950s and 1960s.

The Court’s reversal in Barnette didn’t eliminate suspicion or violence towards Jehovah’s Witnesses, but it did at least remove the illusion of federal sanction for such actions, which dropped in both number and severity. America had other things to worry about, and over time the Witnesses started making some effort to be less aggressive and alienating whenever possible to do so without compromising their beliefs.

And in case you’re wondering, they still don’t say pledge their allegiance to anyone’s flag. Nor do they have to.

RELATED POST: The Jehovah’s Witnesses Flag Cases (Part One)

RELATED POST: “Have To” History: A Wall of Separation

The Jehovah’s Witnesses Flag Cases (Part One)

~ Blue Cereal

Ultra PatrioticSeveral years ago, my wife and I moved to northern Indiana from Oklahoma and I started a job at a new school. Day One, first hour, I was about 30 seconds into introducing our opening activity when I was interrupted by announcements via school intercom. “Please stand for the Pledge of Allegiance…”

I wasn’t expecting it, but I figured the routine was pretty much the same everywhere. Hand on heart, I faced the tiny flag hanging in my room and began reciting right along with the tiny anonymous voice on the speaker – “I PLEDGE ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA—”

I wasn’t three words in when I realized that while most of my students had stood, half were barely mumbling the Pledge while the rest weren’t saying out aloud at all. You know that thing in church where you mouth the words to the hymns you don’t know? It was like that, only I’m sure they knew it – this just wasn’t a thing they did. Not with any enthusiasm, anyway. Except for the NEW GUY, apparently.

At that point, of course, there were only two options. Stop – or at least dial it WAY back – on my first day in a new school in front of a new class and baptize my opening day in awkwardness and stifled embarrassment, or… OWN IT. So baby, I OWNED IT.

“AND TO THE REPUBLIC FOR WHICH IT STANDS – ONE NATION, UNDER GOD, INDIVISIBLE, WITH LIBERTY AND JUSTICE FOR ALL.”

And then I went on with my lesson as if this were the most normal thing in the world. The next day, I did the exact same thing – loud and confident, as if I were the most patriotic individual in the state. Never once did anyone question my enthusiasm or belittle my volume. Never once did I think I could risk dialing it back a bit, lest I cast retroactive doubt and awkwardness over everything I’d done since.

I’m not suggesting this was in any way rational. But people rarely are.

“Have To” History: Supreme Court Cases

H2H Supreme CourtI recently finished “Have To” History: Landmark Supreme Court Cases, of which I’m quite proud. I’ve started putting together information and drafts for a second volume, which may or may not be titled something like “Have To” History: A Wall of Separation (Public School Edition).

I’m still working out the title. And the format. And the content. But for whatever reason, I do love me some Supreme Court cases – even the written opinions. Below and in my next post, I’m sharing rough drafts of two of the earliest cases likely to be included. They reached the Supreme Court only three years apart, and both involve little children not saying the Pledge of Allegiance because they believed it violated the Word of God to do so. Both cases were pursued as “freedom of religion” issues, but both were resolved on “free speech” grounds more than anything “wall of separation”-ish.

Oh, and the second case completely reversed everything the Court said in the first. So that was wacky, jurisprudentially-speaking.

Here’s Part One…

One Nation, Quite Divisible, With Liberty and Justice for Those Who Cooperate

Arguably no religious group faced more persecution and hostility in the 20th century United States than the Jehovah’s Witnesses. They proselytized aggressively in the streets and went door-to-door offering copies of The Watchtower and wanting to talk about the “end times.” They were not a group known for political engagement. They didn’t usually vote, most rejected Social Security numbers as a “mark of the beast,” and leadership discouraged serving on juries or other forms of civic participation. Believers were expected to work for a living, obey the law, and “render unto Caesar” – as long as it did not explicitly conflict with the Word of God.

Despite all this, the Jehovah’s Witnesses have arguably done more than any other religious group to promote freedom of religion and freedom of speech in the U.S. To date, they’ve been involved in something like two dozen U.S. Supreme Court cases, almost all of them concerned with First Amendment protections. The vast majority occurred in the 1930s and 1940s.

Heil 'Merica!In the waning years of the Great Depression, as Europe stumbled towards war, patriotism in the United States became mandatory in all but name. Many states passed laws requiring all public school students to salute the American Flag and say the Pledge of Allegiance each day, apparently assuming that nothing promotes heartfelt commitment like mandatory obeisance. If you’ve seen pictures from the era, you may notice that the standard salute looked different than it does today. Typically, it involved the right arm extended forward and upwards at a slight degree towards the flag as participants chanted in unison their devotion to the collective.

In Nazi Germany, a very similar salute was required of all good citizens, although in the faterland, nationalism was personified in their new Chancellor, Adolph Hitler, rather than a mere flag. Jehovah’s Witnesses in Germany refused to salute, citing the Second Commandment – “Thou shalt have no other gods before me” – as well as several other Old Testament passages suggesting that the Lord Their God was not a fan of split allegiances. Joseph F. Rutherford, who succeeded Witnesses founder and leader Charles Taze after his death in 1916, suggested American Jehovah’s Witnesses avoid what they saw as similar oaths back home.

German Jehovah’s Witnesses would soon be sent to their deaths in various Nazi concentration camps, while their American counterparts were merely mocked, harassed, accused, and periodically assaulted. The official eruption of World War II in 1939 only increased these tensions, despite the U.S. managing to avoid direct involvement for the first few years. Meanwhile, some Jehovah’s Witnesses schoolchildren who took their beliefs a bit too seriously for the comfort of the masses became the focal point for what had heretofore been scattered and inconsistent suspicion and hostility.

Minersville School District v. Gobitis (1940)

Lillian Gobitas (the name was later misspelled in court records), age 12, and her brother Billy, age 10, refused to participate in the Pledge of Allegiance. They believed the Bible forbid such direct promises of obedience to anything or anyone other than the Lord God, and were expelled from school as a result. Their case eventually reached the Supreme Court, which determined in an 8 – 1 vote that the school had the right to require the Pledge as part of promoting good citizenship. It wasn’t a violation of Constitutional rights because the requirement didn’t target their religion intentionally.

From the Majority Opinion by Justice Felix Frankfurter:

The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization… The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution…

The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even were we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality… But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiances.

Justice Harlan Stone wrote one of the most famous dissenting opinions in Court history in response. Several of his points would be revisited when a new majority overturned Minersville a mere three years later. Behold the power of a well-penned dissent:

The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions…

History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities…

The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents’ religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion.

The Red, White, Black & Blue

While there were vocal critics of the Gobitis decision, especially in the press, many Americans took it as federal validation of whatever they wished to do to Jehovah’s Witnesses in their area. Violence against believers surged dramatically, often times with local law enforcement standing by but refusing to interfere – no doubt out of some degree of personal prejudice, but now with the perceived sanction of the nation’s highest court.

Human SupremesWe like to imagine the Supreme Court as remaining safely beyond the pale of popular opinion or social forces, but they are at times quite human and may even read the news from time to time. The makeup of the Court evolves as well, and shortly after the Gobitis decision, it changed rather dramatically. Chief Justice Charles E. Hughes retired, as did Justice McReynolds. Justice Stone, author of the sole dissent in Gobitis, was promoted to Chief Justice, and Justices Robert Jackson and Wiley Rutledge joined the Court.

Jones v. City of Opelika was a case first considered by the Court in 1941 and once again involved Jehovah’s Witnesses. The issue was whether or not the State can charge “licensing fees” on religious books and pamphlets. The Court initially determined that they could. Justices Hugo Black, William Douglas, and Francis Murphy – all of whom had voted with the majority in Gobitis – added a dissent in which they repudiated their previous decision:

The opinion of the Court {in Jones v. Opelika} sanctions a device which, in our opinion, suppresses or tends to suppress the free exercise of a religion practiced by a minority group. This is but another step in the direction which Minersville School District v. Gobitis (1940) took against the same religious minority, and is a logical extension of the principles upon which that decision rested. Since we joined in the opinion in the Gobitis case, we think this is an appropriate occasion to state that we now believe that it was also wrongly decided.

Certainly our democratic form of government functioning under the historic Bill of Rights has a high responsibility to accommodate itself to the religious views of minorities, however unpopular and unorthodox those views may be. The First Amendment does not put the right freely to exercise religion in a subordinate position. We fear, however, that the opinions in these and in the Gobitis case do exactly that.

Jones was reconsidered the following session, and in 1942 the Court reversed itself on this Neo-Stamp Act. Combined with the comments of Black, Douglas, and Murphy, it was clear that the winds of jurisprudential change were blowing – and briskly.

As it turned out, those little Jehovah’s Witnesses kids still refused to have other gods before the Big One. It was a mere three years before almost the exact same “Heil ‘Merica!” case came before the High Court once again. The second time, the results would be a tiny bit different.

RELATED POST: The Jehovah’s Witnesses Flag Cases (Part Two)

RELATED POST: “Have To” History: A Wall of Separation

A Wall of Separation – Lee v. Weisman (1992)

~ Blue Cereal

Graduation PrayerGraduation ceremonies provide an interesting dilemma when it comes to questions of church-state separation. They are inherently connected to public schooling and school officials, and participating students are largely accountable to those authorities during the event. At the same time, they often take place outside of school hours and off school grounds, and are in most cases technically voluntary – students need not attend in order to graduate. 

So are they bound by the same restrictions established in Engel and Abington and clarified by Wallace and other subsequent decisions? The short answer is yeah, they pretty much are. 

In 1989, a middle school principle named Robert Lee in Providence, Rhode Island selected a local Rabbi to deliver prayers at a middle school graduation ceremony – which I guess is a thing in some places. Lee gave the Rabbi a pamphlet called “Guidelines for Civic Occasions,” which provided tips on “inclusiveness and sensitivity” and encouraged “non-sectarian” prayers.

Lee’s intentions were clearly good. The Rabbi followed the protocols. The same basic scenario was repeated annually across the state at both middle and high school events. 

Daniel Weisman, a parent, objected to prayers of any sort being an official part of the ceremony. His concerns were overruled, and the Rabbi delivered a very nice benediction. Weisman took his case to the federal courts claiming this amounted to “establishment” and was thus unconstitutional. 

The federal district court applied the “Lemon Test” and agreed. The First Circuit Court of Appeals followed suit. Finally, in Lee v. Weisman (1992), the Supreme Court in a 5-4 decision confirmed the lower courts – you can’t do that. 

Lemon Test

Justice Anthony Kennedy wrote the Majority Opinion. I’ll try to limit myself to the highlights…  

The school board… argued that these short prayers and others like them at graduation exercises are of profound meaning to many students and parents throughout this country who consider that due respect and acknowledgment for divine guidance and for the deepest spiritual aspirations of our people ought to be expressed at an event as important in life as a graduation…

Daniel Weisman filed an amended complaint seeking a permanent injunction barring petitioners, various officials of the Providence public schools, from inviting the clergy to deliver invocations and benedictions at future graduations… {A} a live and justiciable controversy is before us…

Justice Kennedy

I kept that last bit because it’s fun to try to pronounce “justiciable.” Go ahead, try it a few times. Justishubble… JUST-is-a-bull… a LIVE and JUSTshibble controversy! 

This is one of those awkward moments that I’m the only one having fun, isn’t it?

The court applied the three-part Establishment Clause test set forth in Lemon v. Kurtzman (1971). Under that test as described in our past cases, to satisfy the Establishment Clause a governmental practice must (1) reflect a clearly secular purpose; (2) have a primary effect that neither advances nor inhibits religion; and (3) avoid excessive government entanglement with religion… 

There it is again – that zany ol’ Lemon Test. You should be getting used to it by now. 

The court determined that the practice of including invocations and benedictions, even so-called nonsectarian ones, in public school graduations creates an identification of governmental power with religious practice, endorses religion, and violates the Establishment Clause…

Kennedy eventually addresses some of the arguments made in defense of graduation prayer: 

State officials direct the performance of a formal religious exercise at promotional and graduation ceremonies for secondary schools. Even for those students who object to the religious exercise, their attendance and participation in the state-sponsored religious activity are in a fair and real sense obligatory, though the school district does not require attendance as a condition for receipt of the diploma…

In other words, just as in Wallace v. Jaffree (1985), calling something “voluntary” doesn’t change all of the rules when it comes to minors and government coercion. He’ll come back to this theme later. 

Kennedy then addresses the suggestion that prohibiting the state-sponsored prayer in some way interferes with the “free exercise” of those desiring its inclusion. 

The Twin ClausesFor those of you just tuning in, the First Amendment opens with not one, but two ‘freedom of religion’ clauses – the “establishment clause” (government can’t do anything to promote or encourage a particular religion) and the “free exercise clause” (government can’t do anything to discourage or limit a particular religion.) Government “neutrality” sounds pretty straightforward, but in practice these two goals are often in tension with one another. 

The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise… 

The State’s involvement in the school prayers challenged today… is as troubling as it is undenied. A school official, the principal, decided that an invocation and a benediction should be given; this is a choice attributable to the State, and from a constitutional perspective it is as if a state statute decreed that the prayers must occur. The principal chose the religious participant, here a rabbi, and that choice is also attributable to the State…

He continues, but the point is there were clearly a series of decisions made by adult representatives of the state which established required religious ceremonies for minors. The fact that the authorities in question made a good-faith effort to be as inclusive as possible doesn’t negate this reality. 

Here’s a section I really like:

The First Amendment’s Religion Clauses mean that religious beliefs and religious expression are too precious to be either proscribed or prescribed by the State… 

Just because you’re being all justiciable doesn’t mean you can’t keep it catchy, right?

It must not be forgotten then, that while concern must be given to define the protection granted to an objector or a dissenting nonbeliever, these same Clauses exist to protect religion from government interference.

James Madison, the principal author of the Bill of Rights, did not rest his opposition to a religious establishment on the sole ground of its effect on the minority. A principal ground for his view was: “{E}xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation”…

Burning JoanThis echoes a theme found in Engel and similar cases since – that government entanglement in religion is not only bad for those of other faiths, but it’s bad for the entangled faith as well. Cooperation between church and secular authority rarely ends well for either church or state. 

Kennedy elaborates on other legalities before addressing my favorite argument by defenders of the prayers – that the world isn’t always going to cater to your weird beliefs or other druthers, so you’d better get used to it. 

To endure the speech of false ideas or offensive content and then to counter it is part of learning how to live in a pluralistic society, a society which insists upon open discourse towards the end of a tolerant citizenry. And tolerance presupposes some mutuality of obligation. It is argued that our constitutional vision of a free society requires confidence in our own ability to accept or reject ideas of which we do not approve, and that prayer at a high school graduation does nothing more than offer a choice. 

The actual case in question is a ‘middle school’ ceremony of some sort, but the Court had earlier acknowledged it was collectively addressing all varieties of such ceremonies.  

By the time they are seniors, high school students no doubt have been required to attend classes and assemblies and to complete assignments exposing them to ideas they find distasteful or immoral or absurd or all of these. Against this background, students may consider it an odd measure of justice to be subjected during the course of their educations to ideas deemed offensive and irreligious, but to be denied a brief, formal prayer ceremony that the school offers in return. This argument cannot prevail, however. It overlooks a fundamental dynamic of the Constitution.

In other words, one might make an interesting argument that this is part of the educational process… but they’d be wrong. Or so Kennedy explains:   

The First Amendment protects speech and religion by quite different mechanisms. Speech is protected by ensuring its full expression even when the government participates, for the very object of some of our most important speech is to persuade the government to adopt an idea as its own… 

The method for protecting freedom of worship and freedom of conscience in religious matters is quite the reverse. In religious debate or expression the government is not a prime participant, for the Framers deemed religious establishment antithetical to the freedom of all. 

The Worst PartFree speech, then, may often include the individual trying to persuade the government, or the government reasoning with or compelling the individual. Matters of faith, on the other hand, do not require the government’s approval or cooperation – nor should they be shaped by the whims of the state. Secular authority too easily throws the spiritual into the same blender as the mundane and vulgar, then hits “puree.” And that’s when it has good intentions. 

Kennedy comes back to the question of whether or not students participating in the ceremony are being coerced into demonstrating support for beliefs contrary to their own. This part is going to provoke quite a backlash from the dissenting Justices, so sit up straight and pay attention, kids!

The undeniable fact is that the school district’s supervision and control of a high school graduation ceremony places public pressure, as well as peer pressure, on attending students to stand as a group or, at least, maintain respectful silence during the invocation and benediction. This pressure, though subtle and indirect, can be as real as any overt compulsion. 

Of course, in our culture standing or remaining silent can signify adherence to a view or simple respect for the views of others. And no doubt some persons who have no desire to join a prayer have little objection to standing as a sign of respect for those who do. But for the dissenter of high school age, who has a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow, the injury is no less real. 

There can be no doubt that for many, if not most, of the students at the graduation, the act of standing or remaining silent was an expression of participation in the rabbi’s prayer. That was the very point of the religious exercise. It is of little comfort to a dissenter, then, to be told that for her the act of standing or remaining in silence signifies mere respect, rather than participation… 

Justice ScaliaLet’s skip for a moment to Justice Scalia’s dissent on this particular piece of the argument. “Dissent” is probably too mild – it’s really more of an eruption of disdain. 

The Court declares that students’ “attendance and participation… are in a fair and real sense obligatory.” But what exactly is this “fair and real sense”? According to the Court, students at graduation who want “to avoid the fact or appearance of participation” in the invocation and benediction are psychologically obligated by “public pressure, as well as peer pressure… to stand as a group or, at least, maintain respectful silence” during those prayers…

This assertion – the very linchpin of the Court’s opinion – is almost as intriguing for what it does not say as for what it says. It does not say, for example, that students are psychologically coerced to bow their heads, place their hands in a Durer-like prayer position, pay attention to the prayers, utter “Amen,” or in fact pray. (Perhaps further intensive psychological research remains to be done on these matters)… 

Is that… sarcasm pouring forth from a pen of the Divine Nine?

The Court’s notion that a student who simply sits in “respectful silence” during the invocation and benediction (when all others are standing) has somehow joined – or would somehow be perceived as having joined in the prayers is nothing short of ludicrous. We indeed live in a vulgar age. But surely “our social conventions” have not coarsened to the point that anyone who does not stand on his chair and shout obscenities can reasonably be deemed to have assented to everything said in his presence… 

Stuff like this is why Scalia’s loss was so devastating, whatever one’s politics. This is glorious dissent. 

But let us assume the very worst, that the nonparticipating graduate is “subtly coerced” … to stand! …

{M}aintaining respect for the religious observances of others is a fundamental civic virtue that government (including the public schools) can and should cultivate – so that even if it were the case that the displaying of such respect might be mistaken for taking part in the prayer, I would deny that the dissenter’s interest in avoiding even the false appearance of participation constitutionally trumps the government’s interest in fostering respect for religion generally.

Nobody ExpectsClearly Scalia and the three other Justices who signed off on this dissent are NOT impressed by the Court’s decision. Their outrage is both palpable and a tad pissy. 

But back to the majority opinion… 

Kennedy proceeds to address the state’s argument that these are harmless little ceremonial prayers, not enough to constitute “establishment.” He finds this contradicts the state’s own arguments regarding the importance of prayer. Kennedy cycles through several of his points again with renewed vigor before hitting his home stretch with a somewhat defensive denouement too long to reproduce here. Well, except for this bit:

Our jurisprudence in this area is of necessity one of line-drawing, of determining at what point a dissenter’s rights of religious freedom are infringed by the State…

“Look! We have to draw the lines somewhere, OK?! This isn’t an exact science, we’re talking about real people and some rather complicated situations, so just back off, haters!”

OK, maybe I’m over-interpreting his tone here. 

And he’s not wrong. A review of related jurisprudence over the previous half-century certainly confirms his suggestion that such lines can be tricky. The Court is seeking balance, which sometimes means a frustrating lack of predictability. 

As suggested earlier, Justice Scalia’s dissent really deserves a post of its own, but I’ll limit myself to a few brief excerpts, with minimal commentary. But, oh my – Antonin! 

{Today’s opinion} is conspicuously bereft of any reference to history. In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court – with nary a mention that it is doing so – lays waste a tradition that is as old as public school graduation ceremonies themselves, and… an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. 

This is the case most likely to be made when pushing one’s own version of faith into the public sphere – tradition and history. It’s Christianity’s strongest claim to why it should be treated differently than other faiths – although they’ll never quite come out and put it that way. It’s effective because there’s truth in it – it’s a mistake to try to tease out every last thread of spirituality in our history and culture for fear we’re not being “neutral” enough. 

Hmm… I guess that’s more than “minimal commentary.” Sorry. 

As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion… Today’s opinion shows more forcefully than volumes of argumentation why our Nation’s protection, that fortress which is our Constitution, cannot possibly rest upon the changeable philosophical predilections of the Justices of this Court, but must have deep foundations in the historic practices of our people…

The Court’s argument that state officials have “coerced” students to take part in the invocation and benediction at graduation ceremonies is, not to put too fine a point on it, incoherent.

So… I’m thinking he disagrees on this one.  

Lemon LoveThe Court today demonstrates the irrelevance of Lemon by essentially ignoring it, and the interment of that case may be the one happy byproduct of the Court’s otherwise lamentable decision. Unfortunately, however, the Court has replaced Lemon with its psycho-coercion test, which suffers the double disability of having no roots whatever in our people’s historic practice, and being as infinitely expandable as the reasons for psychotherapy itself…

Despite the rhetorical spittle flinging everywhere, Scalia concludes with strong, slightly less bitter, words:

The reader has been told much in this case about the personal interest of Mr. Weisman and his daughter, and very little about the personal interests on the other side. They are not inconsequential. Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room… 

I didn’t say they weren’t bitter – just that they were slightly less so than before. 

Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the “protection of divine Providence,” as the Declaration of Independence put it, not just for individuals but for societies… One can believe in the effectiveness of such public worship, or one can deprecate and deride it. But the longstanding American tradition of prayer at official ceremonies displays with unmistakable clarity that the Establishment Clause does not forbid the government to accommodate it…

I must add one final observation: The Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration – no, an affection – for one another than voluntarily joining in prayer together, to the God whom they all worship and seek. Needless to say, no one should be compelled to do that, but it is a shame to deprive our public culture of the opportunity, and indeed the encouragement, for people to do it voluntarily… To deprive our society of that important unifying mechanism, in order to spare the nonbeliever what seems to me the minimal inconvenience of standing or even sitting in respectful nonparticipation, is as senseless in policy as it is unsupported in law.

And with that, we move on. 

RELATED POST: A Wall of Separation – Engel v. Vitale (1962)

RELATED POST: A Wall of Separation – Abington v. Schempp (1963)

RELATED POST: A Wall of Separation – Wallace v. Jaffree (1985)