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

September 23, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

So far we’ve done a brief overview of the concept of a ‘Wall of Separation’ between church and state, and covered a few early Supreme Court Cases involving religion and public schools.

We looked at Everson v. Board of Education (1947) in which the Court determined it was perfectly acceptable for the state to reimburse parents for transportation costs of getting their children to school, whether public or private, sectarian or secular.

Then came Engel v. Vitale (1962), in which the Court made clear that the state could NOT require – or even promote – prayer in public schools as part of the school day. It was followed closely by Abington v. Schempp (1963) in which the same decision applied to the reading of Bible verses or the recitation of the Lord’s Prayer.

In both of these cases, the Court sought to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. This was how they interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth.

In Lemon v. Kurtzman (1971), the Court established a “checklist” by which interested parties could determine whether or not something violated the “Establishment Clause” or the “Free Exercise Clause” of the First Amendment. While neither exclusive nor absolute, the “Lemon Test” is still regularly referenced today.

In Stone v. Graham (1980), the Court said boo to the required posting of the Ten Commandments in public school classrooms. The trend was clear – go easy on pushing your faith via mandatory common education.

But then Reagan took office, and a conservative revolution of sorts swept the nation. I don’t want to overstate the case – it’s not a Disney movie – but for those of you who weren’t there or don’t remember, the Reagan Era wasn’t just a presidential administration. It was a social movement, a political shift, a new dynamic comparable to Kennedy’s “Camelot” in impact – although very different in flavor.

Evangelicals were emboldened and the media and courts demonized as liberals – disgusting and dishonorable, both deceived and deceptive. They were dangers to the nation and everyone in it. Reagan wasn’t evil, at least by modern standards, but he did epitomize a sort of American Exceptionalism in Book-of-Revelation Sauce. The passion and self-righteousness of Ronnie and his adherents pre-empted reason, law, or precedent.

It was in this climate that Alabama decided that Jesus and His legacy simply could not survive much longer without their assistance.

They’d already passed a 1978 law providing for a “moment of silence” each school day “for meditation.” They weren’t the only ones to test this route. Many states or districts instituted some variation of the “moment of silence” after Vitale (1962) and Schempp (1963) made it clear that institutional prayer or other overt Biblization was a no-no.

The “moment of silence” was as much a symbolic move as anything – it served and serves no real purpose or function beyond stepping right up to the line of church-state separation and daring the courts to do something about it. The legislators sponsoring the bill had said as much from the floor; it wasn’t a secret – they were running on their efforts to get prayer back into public schools. Extra credit if you can tell me why that alone should have been enough to invalidate the idea. {Hint: it rhymes with “Women Vest.”}

Alabama took things a step further in 1981, legislating that the moment of silence was to be used “for mediation and voluntary prayer.” Their momentum building, they upped their game yet again in 1982 and instructed teachers to lead “willing students” in a state-written prayer.

Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, and had plenty of established case law on his side. But that’s not what struck me about his complaint.

Jaffree’s concerns stemmed not from abstract constitutional issues, but from his kindergartener being targeted by other kids for not participating in the prayers. His five-year-old was essentially bullied for not falling into line with state-mandated religious activities.

He wasn’t alone. In a similar case going on in West Virginia at the same time, a Jewish student was challenged by peers for quietly reading during the “moment of silence.” He needed to pray, they told him, or he’d “go to hell with the rest of the Jews.”

Yes, the prayer was technically voluntary – but as anyone in education knows, “voluntary” can mean many different things. In this case, it was legal cover for bad law, an effort to create enough of a loophole to allow Alabama to belittle children for holding to their family’s religious beliefs in ways that didn’t harm or bother anyone, but without the state running afoul of those damned godless liberal judges.

And yes, there comes a time in life – even public school life – where students must be expected to grow up and accept that not everything works the way they want it to and not everyone is nice. We can’t and shouldn’t stop kids from ever saying an unkind word to one another.

That doesn’t mean, however, that the abuse has to be state-sanctioned. That doesn’t mean the state should throw the first pebble then disclaim responsibility when the very children it’s seeking to influence continue the work by throwing stones of their own.

In an interesting wrinkle, the federal district judge who heard this case as it worked its way through the system chose to ignore precedent and declared the laws perfectly constitutional, stating in his decision that “Alabama has the power to establish a State religion if it chooses to do so.” I’m all for waving your little flag at the tank as it rolls through the square, but this wasn’t the powerless standing up to the powerful – this was power trying to take more power.

And it wouldn’t have happened a decade before.

The South was ready to rise again through God, Guns, and the Gipper. Where’s that Confederate Flag and my 12-pack of Keystone?

I promise I’m not blaming every error of the modern world on Ronald Reagan – I was actually quite a fan. But he was wrong when early in his Presidency he proposed a constitutional amendment permitting organized prayer in public schools. He was wrong in his 1984 State of the Union when he asked why “freedom to acknowledge God” couldn’t “be enjoyed again by children in every schoolroom across this land?”

It’s always problematic when we use “freedom” to mean “giving me the power to force you to comply with my beliefs.” Students have always been free to acknowledge God in whatever schoolroom they happen to be. They’ve never been prohibited from praying at appropriate times or discussing their faith with other students, as long as we can have school along the way.

Imagine if President Clinton had insisted that school intercoms, choirs, and bands be used to broadcast, sing, and play Led Zeppelin exclusively, and at least once a day. Is that “bringing back freedom”?

It’s no dis on Zeppelin to suggest that some people much prefer Supertramp, or the Police, or even Etta James. Besides, you have to suspect that it wouldn’t be long before not just ANY Zeppelin would work. If your local Congressman is partial to the B-side of In Through The Out Door, then THAT becomes the only acceptable Zeppelin from here on out. You don’t even get “In The Evening” that way!

Of course you can disagree, but… why do you hate freedom? Are you a threat to our way of life? What are you, Disco?

On a personal note, I must confess that student liberties aside, I’m rather horrified by the use of the Christian faith as this sort of political tire iron. If the God they claim to serve is truly so helpless as to be somehow barred from hallways and classrooms of public schools around the nation, their efforts to facilitate his comeback are both tragic and unwise.

Surely the same Jesus who conquered Death and Hell isn’t lying around half-formed in a forest somewhere, waiting for Wormtail to bring him a few more ingredients for the Holy Cauldron or for Ms. Kravitz to read the right magic prayer out loud enough times.

It’s hard to imagine Paul the Apostle sitting along the road somewhere in Cyrprus, whining that he can’t preach the Gospel until some local legislature makes a rule requiring the Beatitudes be posted in the marketplace or mandating the 23rd Psalm be recited before any and all public lectures.

If your faith only works when government mandates that minors pay it hollow homage, you need a better faith.

But I should probably get back to the case…

While the Bible part and the praying part are consistently prohibited as violations of the Establishment Clause, the “Moment of Silence” has for the most part survived constitutional scrutiny, even while being acknowledged as an “accommodation” of faith – but not an “establishment” or “inhibitor” of faith.

That’s why in Oklahoma, every school day, students are given 5 – 7 seconds to “reflect, meditate, or pray” in any manner not disrupting or distracting those around them. I don’t know about you, but I feel MUCH closer to God as a result. If we were given, say… 12 seconds to work with, who knows what could happen?

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A Wall of Separation – Stone v. Graham (1980)

September 20, 2016June 4, 2023 ~ Blue Cereal

On November 17, 1980, the Supreme Court announced its decision in Stone v. Graham – a case involving the required posting of the Ten Commandments on the wall of every classroom in Kentucky.

This was about a month after the release of “Another One Bites the Dust” (Queen), although “Lady” (Kenny Rogers) was at that moment sitting comfortably at the top of the charts. It was less than a month before John Lennon would be murdered and “Just Like Starting Over” would be released and soar to #1.

Reagan had just been elected, although he wouldn’t take office until January, 1981. The nation was approaching Day 400 of the Iranian Hostage Crisis. The “Miracle on Ice” had occurred earlier that year, back when only “amateurs” were allowed to compete in the Olympics. The Rubik’s Cube had just become a thing, Richard Pryor had recently lit himself on fire, and the nation seemed genuinely concerned with figuring out “Who Shot J.R.?”

None of which has anything to do with the case. Just trying to provide a little context, since for some of us 1980 seems like last month, while for others it might as well have been the year they began construction on the Great Wall of China.

So, this case…

The State of Kentucky required that a copy of the Ten Commandments be posted on the wall of every public school classroom. The Commandments were purchased via private contributions, so no state money was used, and teachers were not required to discuss, promote, or even draw attention to the Commandments so posted.

At the bottom of each copy was this explanation: “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”

If you’ve been reading this series on the “Wall of Separation,” you know how this one is going to go – right?

The Court referenced the “Lemon Test” which emerged from Lemon v. Kurtzman (1971) less than a decade before. This “test” has three parts, but the Court never got to the second base on this one, let alone third.

First, the statute must have a secular legislative purpose…

That did it. Shut it down.

They didn’t buy at all the assertion that the Ten Commandments were being used in a primarily secular way or to secular purpose. Had the curriculum included additional examples of historical laws, or a study of the Old Testament as literature, history, or even as a world religion, it would have been fine. As it stood, however, the Commandments were without educational context. Instead, they demanded fealty to a certain God in a certain way following specific interpretations of what that God said and wanted.

Also known as “an establishment of religion.”

It didn’t matter who’d paid for them – the state was requiring and posting them. That’s not how “separation of church at state” works.

Stone vs. Graham (1980) is interesting for several reasons. Well, to me, at least…

It was decided per curium, meaning the majority opinion was issued as written by the Court as a whole rather than a specific Justice. A per curium decision is traditionally used in far more banal situations – explaining why the Court will or won’t hear a case, or when the result is considered obvious or non-controversial.

Given that this was a 5-4 split decision, that clearly wasn’t the case. So the anonymous majority opinion is weird. It’s also not entirely anonymous, since Justice Rehnquist wrote a dissent and three other Justices agreed with it. Let’s see, nine Justices, minus those four…

The Supremes also decided this one without hearing arguments from either side. I didn’t know this was a thing, but presumably they figured the lower courts had covered everything they needed to know in order to decide.

Finally, Stone was one of the first cases to rule against such a “passive display” of religion as nevertheless violating the Establishment Clause. It was from this reasoning the Court went on to take issue with some government-sponsored Christmas displays and other state-sanctioned religious ceremonies.

Let’s see if there’s anything fun in this per curium opinion, shall we?

Hmm… they referenced Abington v. Schempp (1963). We’ve covered that one, yes?

They then went straight to the “Lemon Test” – another familiar item to the #11FF.

They eventually referenced Engel v. Vitale (1962) as well. I swear, it’s like they read my blog even back then!

The Court notes that while some of the Commandments are “arguably secular matters, such as honoring one’s parents, killing or murder, adultery, stealing…” others are very specific to “the religious duties of believers: worshipping the Lord God alone, avoiding idolatry, not using the Lord’s name in vain, and observing the Sabbath Day.”

As in Abington, the Court wants to make sure their decision is not perceived as forbidding all discussion of religious topics:

This is not a case in which the Ten Commandments are integrated into the school curriculum, where the Bible may constitutionally be used in an appropriate study of history, civilization, ethics, comparative religion, or the like…
Posting of religious texts on the wall serves no such educational function. If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause.

There’s a great moment in Justice Rehnquist’s dissent worth sharing here:

The Establishment Clause does not require that the public sector be insulated from all things which may have a religious significance or origin. This Court has recognized that “religion has been closely identified with our history and government”… and that “{t}he history of man is inseparable from the history of religion”…
Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments. The words of Justice Jackson, concurring in McCollum v. Board of Education (1948), merit quotation at length:

And yes, I’m about to move from quoting an opinion to quoting an opinion quoted within an opinion. Is it getting Inception up in here?

I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff’s completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction.
Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view…
I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity – both Catholic and Protestant – and other faiths accepted by a large part of the world’s peoples.
One can hardly respect the system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared.

That last part is significant – “the currents or religious thought that move the world society for a part in which he is being prepared.”

In other words, no student is truly prepared to go out into the world without a basic familiarity with the VARIOUS faiths and cultural norms of the world – not merely their own.

At some point we’ll have to look at how this decision impacted the ability of a state to post the Ten Commandments in other places – say, at that State Capitol or some such thing. Just, you know… hypothetically.

But not this time.

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A Wall of Separation – Lemon v. Kurtzman (1971) & “The Lemon Test”

September 14, 2016June 4, 2023 ~ Blue Cereal

*Dramatic Voice* Previously, on Blue Cereal Education…

I recently proffered a brief overview of the whole ‘Wall of Separation’ idea in American jurisprudence, then dove into a few early Supreme Court Cases involving religion and public schools.

In neither case was the goal to drive faith out of public education. The Court’s concerns, rather, were to prevent either the power of government or the foibles of politicians from unduly interfering in man’s reach for the Almighty. Or, at least, that’s how they interpreted the Framers’ concerns as expressed in the First Amendment, applicable to the states via the Fourteenth.

The Abington decision included a little checklist by which interested parties could determine whether or not something violated the “establishment” clause or the “free exercise” clause of the First Amendment. That checklist was improved less than a decade later when the Court heard Lemon v. Kurtzman (1971).

Which is where we are now.

As of 1969, both Pennsylvania and Rhode Island had lots of private schools, the vast majority of which were Roman Catholic. Then, as now, most private schools operated on tight budgets. The average per-pupil expenditure was lower than in public schools in the same area – even when numbers were adjusted to reflect only “secular education.”

In other words, students in private Catholic schools weren’t benefitting from the same resources as kids in public schools, even when learning science, math, or other non-religious subjects.

Both states passed legislation furnishing supplemental support for these private schools, provided the extra funds were used only for the teaching of secular subjects and buying non-religious materials. In some cases this included helping with teacher salaries.

In both states, some parents complained that this diverted resources from public schools to support sectarian institutions, thus violating the First Amendment.

Only a few years before, the Court had determined in Board of Education v. Allen (1968) that it was acceptable for New York to provide textbooks free of charge to all secondary students (Grades 7 – 12), including those in private schools. Surely, Rhode Island and Pennsylvania reasoned, this was essentially the same sort of non-sectarian support.

It was an interesting question. Is modest financial assistance for a sectarian school more like pushing a little prayer and some Bible verses in Engel or Abington, or supplying bus fare and textbooks as in Everson or Allen? Does state assistance constitute “establishment,” or would eliminating that help violate “free exercise”?

Spoiler Alert: the Court decided almost unanimously that it was the former. The help to Catholic schools was a big Constitutional “no-no.”

The conclusion was far from foregone, however. Lemon came hot-on-the-heels of Walz v. Tax Commission of the City of New York (1970) in which the result had been quite different. Walz wasn’t a public school case, but many of the issues were similar.

The city of New York granted property tax exemptions to religious organizations if the property in question was used exclusively for religious worship – putting them in the same category as schools or charities. Some property owners who did pay taxes argued this violated the Establishment Clause.

The Court determined that while government certainly had no business promoting religion, these tax exemptions didn’t actually do that – not quite. They merely allowed the “free exercise” of groups serving the public good, without the same taxes levied on for-profits. They weren’t “establishing,” the Court said – they were stepping back and letting faithy people do faithy stuff.

The majority opinion, written by Chief Justice Warren Burger, cites a number of prior cases by way of illumination – many of them the public school cases we’ve already discussed. At the risk of straying too far from Lemon, he includes a wonderful homage to fallibility and balance worth sharing:

The Establishment and Free Exercise Clauses of the First Amendment are not the most precisely drawn portions of the Constitution. The sweep of the absolute prohibitions in the Religion Clauses may have been calculated, but the purpose was to state an objective, not to write a statute…

I really like that part.

The Court has struggled to find a neutral course between the two Religion Clauses, both of which are cast in absolute terms, and either of which, if expanded to a logical extreme, would tend to clash with the other…

In other words, the Court recognized that the best application of First Amendment values wasn’t necessarily obvious in each and every case. Sometimes, protecting the rights of everyone concerned is an imperfect balancing act.

The First Amendment, however, does not say that, in every and all respects, there shall be a separation of Church and State. 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…
The course of constitutional neutrality in this area cannot be an absolutely straight line; rigidity could well defeat the basic purpose of these provisions, which is to insure that no religion be sponsored or favored, none commanded, and none inhibited…

So… we’re faithful to the principles by being flexible with specifics. How pragmatic!

Short of those expressly proscribed governmental acts, there is room for play in the joints productive of a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference…

There’s “room for play in the joints”? *snort*

It almost seems like Burger wanted to dress up what was in reality a collective, black-robed shrug – a mumble to the effect of “we’re just figuring it out was we go.” Of course, in his defense, the “figuring it out” included 15 pages of detailed analysis, history, and jurisprudence.

We also see a foreshadowing of the following year’s “Lemon Test”:

Determining that the legislative purpose of tax exemption is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry, however. We must also be sure that the end result — the effect — is not an excessive government entanglement with religion. The test is inescapably one of degree. Either course, taxation of churches or exemption, occasions some degree of involvement with religion…

Speaking of Lemon v. Kurtzman (1971), we should probably get back to that one – seeing as how it’s in the title of the post and all.

As previously mentioned, both laws – in Rhode Island and in Pennsylvania – were found to be unconstitutional entanglements of the state with religion. As with Walz, Chief Justice Burger wrote the majority opinion.

He again acknowledges the difficulty of neither promoting nor hindering religion, although with much less aplomb than he’d managed the year before.

The language of the Religion Clauses of the First Amendment is, at best, opaque, particularly when compared with other portions of the Amendment…
A law may be one “respecting” the forbidden objective while falling short of its total realization. A law “respecting” the proscribed result, that is, the establishment of religion, is not always easily identifiable as one violative of the Clause. A given law might not establish a state religion, but nevertheless be one “respecting” that end in the sense of being a step that could lead to such establishment, and hence offend the First Amendment.

Yeah, exactly! And also, huh?!

He quickly redeems himself, however, with that surprise judicial hit, “The Lemon Test” – the first of many to come from the Burger Court.

Also, it’s funny to say “Burger Court” and mean something totally for real and serious.

Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion… finally, the statute must not foster “an excessive government entanglement with religion”…

Or, rephrased to apply more specifically to the case at hand:

In order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority…

Justice Burger goes on to explain how very clearly religious these private schools were. Most were located on the same grounds or in close proximity to associated churches. Religious symbols pervaded each campus. Roughly two-thirds of the instructors were nuns.

To cap it all off, the Catholic faith was pretty explicit about the fact that a large part of the reason they had parochial schools to begin with was to spread their faith. So are they religious? Is the Pope Cath-

Um… you probably get the idea.

But what about Allen a few years prior?

In Allen, the Court refused to make assumptions, on a meager record, about the religious content of the textbooks that the State would be asked to provide. We cannot, however, refuse here to recognize that teachers have a substantially different ideological character from books.

Good to know someone realizes that. Can we add “or online courses”?

In terms of potential for involving some aspect of faith or morals in secular subjects, a textbook’s content is ascertainable, but a teacher’s handling of a subject is not. We cannot ignore the danger that a teacher under religious control and discipline poses to the separation of the religious from the purely secular aspects of pre-college education. The conflict of functions inheres in the situation.

You gotta love a phrase like “the conflict of functions inheres in the situation.” And despite several more pages of explanation, that pretty much sums it up. The balance between pushing religion and punishing it is a tricky one, yes – but in this case, the Court decided, the state had some seriously conflicted inhering going on.

It wasn’t malicious. It wasn’t fair to expect teachers to completely separate their spiritual function from their secular labors.

We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment. We simply recognize that a dedicated religious person, teaching in a school affiliated with his or her faith and operated to inculcate its tenets, will inevitably experience great difficulty in remaining religiously neutral.
Doctrines and faith are not inculcated or advanced by neutrals. With the best of intentions, such a teacher would find it hard to make a total separation between secular teaching and religious doctrine…

Finally, expecting the state to supervise or punish violations of this unattainable “total separation” created the exact sort of entanglement the First Amendment hoped to circumvent. It made the government into the theology police.

To ensure that no trespass occurs, the State has therefore carefully conditioned its aid with pervasive restrictions…
Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

So bus fare and math books are OK. Government-led prayer or devotional readings are not. And, after Lemon, direct support to sectarian schools – under whatever formula – is out as well.

On the other hand, I wish I were young enough to start a band just so I could call it the “Prophylactic Contacts.” But the conflict of functions would probably inhere in my situation.

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

September 9, 2016June 4, 2023 ~ Blue Cereal ~ 1 Comment

Cases don’t just magically appear in the Supreme Court. Except in rare circumstances, they begin as local disputes, sometimes working their way up through District Courts. By the time a case comes before the highest court in the land, it’s often been going on in some form for several years.

The Court nevertheless chose to hear School District of Abington Township v. Schempp (1963) only one short year after its decision in Engel v. Vitale (1962). Their decision to do so suggests they saw something in this case distinct from the issues a year before. Otherwise, they’d have remanded it to the lower courts for reconsideration in light of their ruling in Engel.

The case is remembered for the Court’s 8-1 ruling that government-sponsored Bible reading or prayer in public schools is unconstitutional. It violates the First Amendment as applied to the states through the Fourteenth.

Other than the focus on ‘Bible reading’ instead of prayer (in this case it was often the Lord’s Prayer rather than the very general incantation at issue in Engel), it would seem to be a repeat of the previous case. It does have a few interesting little features, however, which make it worth separate consideration here.

The case began in the late 1950’s when Edward Schempp, his wife, and two of his kids who went Pennsylvania public schools, argued that their religious rights (they were Unitarians) were being violated by a state law that required public schools to begin each school day with a reading of at least 10 verses from the Bible.

Pennsylvania tried to deflect the issue by changing the law to allow students to be excused with a written request from a parent, but the case nevertheless moved forward.

Sometimes the Supreme Court will combine similar cases to be heard together. This was what happened in Brown v. Board of Education (1954), for example – while the story of Linda Brown still remains the ‘face’ of the case, there were actually four other cases, all pushed by the NAACP, packaged together with Brown and technically considered and decided at the same time.

Schempp’s case was combined with a case from Baltimore, Murray v. Curlett. While Abington is the one we most often remember and discuss, it was Murray – as in “Madelyn Murray O’Hair” – who made the biggest personal ripple at the time.

Ms. O’Hair was America’s most prominent and outspoken atheist of the 20th Century. For several generations after Abington/Murray was decided, she was cited and demonized as the woman who removed God – or at least prayer – from public schools.

Whatever the spiritual ramifications of her actions, this simply wasn’t true. She fought prayer and Bible-reading in public schools, to be sure, but the prayer issue had already been decided by the time her case made it to the Supreme Court, and the Bible-reading issue would have turned out the way it did with or without her.

That doesn’t mean she’s not burning in eternal damnation even as we speak, but history is history. I’m just saying.

The second memorable feature of this case, besides the decision itself, is that for the first time the Court developed a sort of ‘test’ to be used in subsequent situations to determine whether or not the Establishment Clause was being violated.

From the majority opinion, written by Justice Tom C. Clark:

The wholesome “neutrality” of which this Court’s cases speak thus stems from a recognition of the teachings of history that powerful sects or groups might bring about a fusion of governmental and religious functions or a concert or dependency of one upon the other to the end that official support of the State or Federal Government would be placed behind the tenets of one or of all orthodoxies. This the Establishment Clause prohibits.
And a further reason for neutrality is found in the Free Exercise Clause, which recognizes the value of religious training, teaching and observance and, more particularly, the right of every person to freely choose his own course with reference thereto, free of any compulsion from the state. This the Free Exercise Clause guarantees.
Thus, as we have seen, the two clauses may overlap. As we have indicated, the Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof.
The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that, to withstand the strictures of the Establishment Clause, there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion…

The Court would “update” this test less than a decade later in Lemon v. Kurtzman (1971). The updated version – commonly referred to as the “Lemon Test” – is far better known and still utilized today.

Justice Clark’s opinion quotes from the record of the initial “trial court” which heard the case to begin with. Better than anything else, it summarizes the reasoning behind the final decision:

The reading of the verses, even without comment, possesses a devotional and religious character and constitutes, in effect, a religious observance. The devotional and religious nature of the morning exercises is made all the more apparent by the fact that the Bible reading is followed immediately by a recital in unison by the pupils of the Lord’s Prayer.
The fact that some pupils, or, theoretically, all pupils, might be excused from attendance at the exercises does not mitigate the obligatory nature of the ceremony, for . . . Section 1516 . . . unequivocally requires the exercises to be held every school day in every school in the Commonwealth.
The exercises are held in the school buildings, and perforce are conducted by and under the authority of the local school authorities, and during school sessions. Since the statute requires the reading of the “Holy Bible,” a Christian document, the practice . . . prefers the Christian religion. The record demonstrates that it was the intention of . . . the Commonwealth . . . to introduce a religious ceremony into the public schools of the Commonwealth.

Like Justice Black before him, Justice Clark soon launches into a history lesson about the role of faith in our collective past. He cites related cases, some involving schools and others not, before this poignant little line:

The government is neutral, and, while protecting all, it prefers none, and it disparages none.

There’s more history and lots of quoting from other cases, then this:

We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person “to profess a belief or disbelief in any religion.” Neither can constitutionally pass laws or impose requirements which aid all religions as against nonbelievers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs.

A bit later we get to that ‘test’ discussed above, then more reasoning and quoting. It’s actually a bit tedious as majority opinions go – no offense to the late Justice Clark.

This bit caught my attention:

Further, it is no defense to urge that the religious practices here may be relatively minor encroachments on the First Amendment. The breach of neutrality that is today a trickling stream may all too soon become a raging torrent and, in the words of Madison, “it is proper to take alarm at the first experiment on our liberties.”

Pages of legal reasoning and precedence, then suddenly “a trickling stream may all too soon become a raging torrent.” If only Clark had discovered his penchant for drama a few dozen pages earlier.

It is insisted that, unless these religious exercises are permitted, a “religion of secularism” is established in the schools.

Oooh! This sounds interesting. It’s essentially the same accusation made against public schools in Oklahoma by our very own 21st century representatives a couple times a year.

We agree, of course, that the State may not establish a “religion of secularism” in the sense of affirmatively opposing or showing hostility to religion, thus “preferring those who believe in no religion over those who do believe.” … We do not agree, however, that this decision in any sense has that effect.
In addition, it might well be said that one’s education is not complete without a study of comparative religion or the history of religion and its relationship to the advancement of civilization. It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.

I’ve cited this bit more than once when talking to teachers about religious content in school. You can’t read much great literature or analyze many great American speeches without a foundation of Biblical literacy. Reform movements or wars, individuals or cultures – the impact of religion is ubiquitous in our collective past, and to deny it would be to rewrite that history substantially.

But the exercises here do not fall into those categories. They are religious exercises, required by the States in violation of the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion.

It sounds so simple, although at least one concurring Justice acknowledged how tricky this could sometimes be in practice. Despite popular perception in the 21st Century, the Court expressed no interest in stifling or limiting religion – it merely refused to make it, or any specific form of it, in any way mandatory.

It would be eight years before another case of note involving public education and the role of faith would reach the Supreme Court. It would produce the best-known ‘test’ for weighing whether or not a particular policy or practice was, in fact, in violation of one of those tricky ‘religion’ clauses.

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

September 6, 2016August 10, 2023 ~ Blue Cereal

After Everson v. Board of Education (1947), fifteen years passed before the next important ‘religion and public schools’ case made its way to the Supreme Court. Whereas Everson dealt with transportation, Engel v. Vitale (1962) addressed the role of the supernatural in the classroom itself.

To this day, many evangelicals blame this case for the collapse of American culture. After the highest court in the land “kicked God out of public school,” there came the sex, the drugs, the decadence, and the disrespect.

Just think – we could have avoided disco altogether if nine old men in robes could have restrained their humanistic tendencies for just a few more decades.

But I’m getting ahead of myself.

Sometime in the 1950s, the Board of Regents of the State of New York put together a “voluntary,” non-denominational prayer to be recited by students each day. It was pretty tame:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.

But then, a prayer is a prayer.

In 1958, a small group of parents (including Steven Engel, who was Jewish) vocalized their objections to this prayer. The district argued that the prayer was technically voluntary, and that participation was protected by the “free exercise” clause of the First Amendment.

The parents sued, thus landing school board president William Vitale on the other side of the italicized “v.” The case eventually wound up in the Supreme Court, which decided Engel v. Vitale in 1962.

New York’s law promoting prayer – any prayer – in public schools was unconstitutional. Unlike Everson fifteen years earlier, the Court had but one dissenter – Justice Potter Stewart. Like Everson, the Court’s majority opinion was written by Justice Hugo Black.

Black’s written opinion has some golden moments. Let’s gaze into the rhetoric, shall we?

Among other things, these parents challenged the constitutionality… of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that “Congress shall make no law respecting an establishment of religion” — a command which was “made applicable to the State of New York by the Fourteenth Amendment…”

If you missed the part about “incorporation” via the 14th Amendment, you might wish to review.

The New York Court of Appeals… sustained an order of the lower state courts which had upheld the power of New York to use the Regents’ prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents’ objection. We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments.

In other words, lower courts had accepted the idea that the prayer was acceptable because it was technically voluntary. ‘Granted certiorari’ (Sir Shoe RHARee) is a fancy way of saying the Supreme Court agreed to hear the case. In Latin it means something like, “OK – inform us!”

The number of petitions to the highest court in the land would quickly prove crippling if Justices were compelled to hear all of them. In most cases, then, it is entirely up to the Court which cases they decide to hear and which they don’t. If they agree to hear the case, they ‘grant certiorari’.

We think that, by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity…
The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage…

Unlike your typical television courtroom drama, most Supreme Court cases prompt multiple amicus curiae, or “friend of the court,” briefs. Pretty much any interested party can submit research, arguments, background, etc., for the Court to consider – even if they’re not directly involved in the case.

Black’s point here is that no one involved was disputing that the prayer was religious. Instead, they were arguing that it was OK that it was religious because Americans are largely people of faith, historically speaking. In short, supporters wanted to frame the prayer as more like a Christmas Tree than a Cross.

Justice Black then dives into a history lesson on the subject, as he was wont to do. The gist of it is that America was largely founded by people trying to get away from other people – especially those in government or other positions of power – telling them how to pray and exactly what to believe. The subplot is that government efforts to standardize and mandate faith – however general or ‘voluntary’ – repeatedly caused more problems than they solved.

And you know what they say about those who don’t know their history…

It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies…

Ah, history and its uncomfortable lessons… We fight the power until we become the power, at which point abuse suddenly seems like a really good idea – in everyone’s best interest, in fact – because now it’s ME!

By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government’s placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services.

This is a theme we don’t appreciate sufficiently whenever church/state issues arise. It’s not just about “protecting” the government from religious influence; it’s about protecting individuals and their faith from the damage government inherently brings to everything it “improves.”

They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government’s stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch.
But this safeguard was not enough… The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say — that the people’s religions must not be subjected to the pressures of government for change each time a new political administration is elected to office…

Here comes my favorite part. You might want to grab a Slurpee and some popcorn – this is delish!

When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that.
Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.

Think about this argument for a moment. Once your personal walk with God becomes just another parking meter demanding quarters or a regulation with which you must comply before adding a shed in the backyard, it’s no longer your reach for the divine – it’s merely another vulgar hoop through which you must jump.

Didn’t someone relatively significant die to overcome this sort of entrenched legalism at some point?

The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith.

Think about modern politics replacing your Holy Spirit. Do you seriously want Donald Trump and Hillary Clinton going back and forth about whether or not baptism requires immersion? John Bennett and Emily Virgin on a committee together to determine whether or not Jesus is OK with you changing churches twice in the same year?

I can’t wait to hear what Governor Fallin and Preston Doerflinger determine about how much tithe God intends for you to pay, and where it should best be applied. And if you argue against them, you’re part of the godless liberalism pervading our once great nation. Good times!

That may sound like it’s a far cry from “we beg Thy blessings upon us,” but whether you’re a lefty or a righty, you know how slippery government slopes tend to be. Chutes and ladders, kids.

Lest we think the Court is suggesting secular government should instead be in some way hostile towards faith, Black goes again to history. On behalf of the Court, he acknowledges not only the role of religion, but it’s power in shaping the best of the New World’s aspirations.

The excerpt is a bit lengthy, but well-worth some mastication:

It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong.
The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that “More things are wrought by prayer than this world dreams of.”
It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose.
And there were men of this same faith in the power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either.
They knew, rather, that it was written to quiet well-justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men’s tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance.

We don’t separate church and state because we’ve forgotten the role of faith in our creation; we separate them because we remember.