Tag: Wall of Separation

A Moment of Silence: Wallace v. Jaffree (1985)

~ Blue Cereal

Is It Constitutional Now? How About Now? Or Now?

Three Big Things:

Moment of Silence1. After it became clear that state-sponsored prayer was no longer a realistic option in public education, states began experimenting with the idea of a “moment of silence” during which students could pray (although no one had ever suggested that they couldn’t).

2. Alabama, in particular, kept nudging the idea forward – first it was a “moment of silence,” then a moment in which students might choose to pray, then teachers leading students in “voluntary” prayer, etc.

3. Along the way, one federal judge acknowledged that this was akin to “establishing a state religion,” but determined that was perfectly fine because states could do that. The Supreme Court agreed with the first part of that decision. They did not go along with the second.

Background

In Stone v. Graham (1980), the Court shot down the required posting of the Ten Commandments in public school classrooms. In case anyone had wondered, the Constitution still frowned on pushing religion via the public education system.

But then Reagan took office, and a conservative revolution of sorts swept the nation. At the risk of overdramatizing, the Reagan Era wasn’t just a presidential administration. As President, he championed a sort of American Exceptionalism marinated in Book-of-Revelation Sauce. The passion and righteous zeal of his adherents at times pre-empted reason, law, or precedent. It was a social movement as much as a political shift, comparable to Kennedy’s “Camelot” in impact but quite distinct in its flavor. Evangelicals were emboldened while the media and courts were demonized. Liberals weren’t just political opponents, but America’s enemies – both deceptive and deceived.

It was in this climate that Alabama decided that American Christianity could simply no longer survive without their assistance. It was time to make a statement and test the limits of this silly “wall of separation.” If their righteous fury just happened to appeal to a widely conservative voting base, well… thy will be done.

A Moment Of (Insert Options Here)

In 1978, Alabama passed legislation calling for a “moment of silence” at the start of each school day to allow “for meditation.” They weren’t alone. Many states had instituted some variety of the “moment of silence” after Engel v. Vitale (1962) and Abington v. Schempp (1963) had made it quite clear that overt theological indoctrination or proselytization by representatives of the State were a big “no-no” during the school day.

The “moment of silence” was thus a symbolic move as much as anything. Few non-politicians would argue that taking 5 – 7 seconds (or even the full minute required by some versions) to sit in awkward silence has a measurable impact on students’ mindsets or willingness to learn. Students, of course, had never lost the right to pray whenever and wherever they chose, so long as they did not willfully disrupt classes or become overly aggressive towards the uncooperative. (In other words, they were expected to be better behaved than their political leaders.)

What the “moment of silence” allowed legislatures to do, however, was to step right up to the line of church-state separation and dare the courts to do something about it. Legislators sponsoring these bills often said as much from the floor, dropping subtle little hints like, “We’re doing this because we want to get prayer back into public schools and we dare the courts to do anything about it.”

This reality alone would have been enough to kill any chance of proposed legislation surviving the “Lemon Test,” the first stage of which was that legislation must have a valid secular purpose. It’s possible none of them knew this, but it seems more likely they simply had ulterior motives for pushing the issue anyway. In Alabama, at least, that’s exactly what they did. 

After a few years of a “moment of silence” went by without recorded difficulty, Alabama took things a step further. In 1981, the state legislature updated the statute so that the moment of silence would be presented each day as a time “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.
That part, not surprisingly, finally triggered the anticipated backlash.

Pray Or Be Prey

Ishmael Jaffree had three kids in Mobile County Public Schools – two in second grade and one in kindergarten. He protested the state-designed prayer, starting at the building level, but to no avail. Although he had plenty of established case law on his side, he didn’t initially focus on the abstract constitutional issues in play. Jaffree’s primary concern was that his kindergartener was 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, and teachers refused to do much to stop it.

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. As had been demonstrated a generation before when young Jehovah’s Witnesses quietly refused to pledge their allegiance to the American flag, it matters whether such choices are defended by those in power. There will always be those who hurt others verbally, physically, or otherwise for not sharing their nationalism or their faith, but there will be far more hurting going on when those in the minority are “otherized” by the State (at any level) because of their beliefs.

Establishing A State Religion?

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 acknowledge that while, yes, Alabama was in effect “establishing” a state religion, they were perfectly within their rights to do so. While the federal government was constrained by the First Amendment, the states were not. “Alabama has the power to establish a State religion if it chooses to do so,” he explained. He even had a few pages of convoluted historical analysis to back this up.

Needless to say, that one caught everyone on both sides pretty much off guard. The decision was quickly reversed by the 11th Circuit Court of Appeals, and the case – not surprisingly – eventually ended up in the Supreme Court. It had already been determined in the lower courts that the first version of the law – the “moment of silence” from 1978 – was constitutionally acceptable. Since no one was disputing that, the Supreme Court acknowledged then ignored it. The Court of Appeals had already declared both the second and third versions of the law unconstitutional based on having no legitimate secular purpose. The Supreme Court accepted without debate that determination regarding version three – where teaches led willing students in a “voluntary” prayer.

What remained to be determined, however, was that middle version – the one about “voluntary meditation or prayer.” Was this establishment, or would shutting it down be a violation of free exercise?

The Decision

The Court determined 6 – 3 that Alabama, in their 1981 version of the “moment of silence” law, had violated the Establishment Clause of the First Amendment as applied to the states via the Fourteenth. They cited testimony from the lawmaker sponsoring the bill, who was – to his credit – upfront about its purpose. Because the changes implemented in 1981 clearly had no valid secular purpose, as required by the “Lemon Test,” the law was unconstitutional.

Justice Sandra Day O’Connor wrote an interesting concurring opinion, supported (but not officially joined) by Justice Lewis F. Powell in his own. O’Connor began by reminding everyone of a fact often lost in the political rhetoric: nothing decided by the Court in any way limited the rights of students to pray individually or collectively at school or anywhere else, so long as they were not overly disruptive to the school day. She used the rest of her concurrence to address two facets of Wallace she believed required a little jurisprudential elaboration. In her own words:

I write separately to identify the peculiar features of the Alabama law that render it invalid, and to explain why moment of silence laws in other States do not necessarily manifest the same infirmity. I also write to explain why neither history nor the Free Exercise Clause of the First Amendment validates the Alabama law struck down by the Court today.

Her historical analysis is interesting enough. Along the way she defends the continued use of the “Lemon Test” while suggesting perhaps it would benefit from some polishing or updating to help maintain its usefulness.
The more relevant part for states and districts post-Wallace, however, is her discussion of similar “moment of silence” laws which may share the goals and even the verbiage of Alabama’s but not its background. In other words, how would this statute – or something very similar – fare if passed without being preceded by the announcement it was intended to be evangelical and almost immediately followed by an “oh just pray with them already!” update? The short version was that they’d probably be fine if they simply avoided being quite so transparent about their religious goals.

While O’Connor expressed confidence the Court could tell the difference between sincere efforts at secular legislation and thinly veiled movements towards state-sponsorship of religion, it’s not much of a leap to infer that the real lesson was that politicians should be a bit less forthcoming about their motivations for this sort of legislation. In short, Alabama had simply made it too obvious what they were trying to do.

Dissents

Each of the three dissenting justices wrote a separate opinion. Justice White’s is brief and not particularly enlightening. The other two, however, are both scathing and poignant. As the balance of power in the nation’s highest court continues to shift, it’s quite possible they’ll find new life in 21st century jurisprudence. It’s not inconceivable they could soon represent the majority view rather than the outraged minority.

Chief Justice Warren Burger primarily disagreed with the idea that the option of voluntarily praying during a moment of silence qualified as government coercion towards religion. He cited other examples of times religion appeared in government functions without great trauma. Burger was particularly unimpressed by the Court’s citations of the law’s sponsor as proof it lacked a valid secular purpose.

Burger pointed out that the comments came after the bill’s passage and were accompanied by an assertion by the same legislator that he simply wanted to make the point that students had every right to pray in school if they so chose. Most significantly, in Burger’s mind, there was no evidence that the comments of one legislator after-the-fact in any way reflected the reasoning of the majority who’d voted to support the legislation in the first place.

Finally, for good measure, he mocks the Court’s use of the “Lemon Test,” calling it a “naive preoccupation with an easy, bright-line approach for addressing constitutional issues.” In short, Burger thinks the majority’s reasoning is absurd and their reactions completely out of proportion to circumstances, and he’s not shy about explaining precisely why.

Justice William Rehnquist (who will eventually become Chief Justice) takes an entirely different approach. His dissent undercuts the validity of the “wall of separation” imagery as an accurate representation of the goal of the First Amendment’s religion clauses to begin with. Most of his dissent is taken up in extended historical analysis of the origins of the Amendment and how very much NOT THERE Jefferson was the entire time. He also cites multiple examples from early American history in which the same men who wrote and ratified the First Amendment clearly didn’t seem to think it prohibited the federal government from proclaiming days of prayer or thanksgiving or otherwise acknowledging the role of the Almighty in their affairs.

It’s a pretty impressive historical case.

In short, Rehnquist prefers Madison’s approach to the “establishment” and “free exercise” clauses – protections from official government religions mandating one flavor of Protestantism over another and severely restricting private religious behavior. The idea that any sort of “wall” – metaphorical or otherwise – was ever intended to be erected between church and state was absurd, according to Rehnquist.

Aftermath

Many other states had similar laws on the books, and others have added them since, without serious constitutional challenge. A “moment of silence” is fine in public schools, as long as there’s no overtly expressed pressure to pray. There’s little to indicate that the 5 – 7 seconds of awkward silence typically beginning morning announcements actually accomplish anything in terms of mentally or emotionally preparing students for the school day, but effectiveness is not part of the “Lemon Test.” All it takes is a plausible assertion of valid secular goals.

Calm, focused students fit that requirement.

“Have To” History: Stone v. Graham (1980)

~ Blue Cereal

The following is a first draft for what I hope will become the follow-up to “Have To” History: Landmark Supreme Court Cases. I’m sharing some of the chapters as they’re written, partly to share with you, my Eleven Faithful Followers, and partly because nothing brings out the typos, grammar errors, and other shortcomings like publishing something online. Enjoy.

FOLLOW UP: The final version of this one (and the one that ended up in the book) can be found here.

Thou Shalt Post These In Every Classroom

Three Big Things:

1. Kentucky required that the Ten Commandments be posted in all public school classrooms without comment, but with a little disclaimer underneath about them being the “fundamental legal code of Western civilization.” 

2. The Court applied the “Lemon Test” and determined that the legislation had no clear secular purpose; it was thus a violation of the Establishment Clause of the First Amendment.

3. Whereas recent cases had dealt with efforts to support the secular education of students in religious schools without running afoul of the “wall of separation,” Stone marked a new generation of cases focused on the reverse – seeing just how far religion could be brought back into public schooling.

Background

Ten CommandmentsThe Supreme Court’s decision in Stone v. Graham was announced on November 17th, 1980. Less than two weeks earlier, Ronald Reagan had been elected President of the United States, initiating what would later be called the “Reagan Revolution” – a resurgence of conservative values and policies anchored in an idealized past. The events leading to Stone began years earlier, but its outcome sent a message to the faithful in the 1980s similar to that of Engel v. Vitale and Abington v. Schempp two decades before: American’s fundamental values (meaning public promotion of Christianity) were under attack by intellectual elitists… aka “liberals.” And some of them wore robes.

Less than a month after Stone was decided, John Lennon was assassinated. In January of 1981, Reagan took office and began “making America great again.” The symbolism is purely retrospective; it’s not like the 1970s had been great for either side of the cultural divide. The U.S. had weathered Watergate, Vietnam, and a major energy crisis before succumbing to disco, of all things. Cult-leader “Reverend” Jim Jones had recently led his followers in mass suicide, the horrifying event from which the phrase “drinking the Kool-Aid” was coined. As the new year began, the U.S. was on Day 400-plus of the Iranian Hostage Crisis. Everyone knew the exact number each day because the evening news led with it every night.

The “Miracle on Ice” at the 1980 Olympics was nice, but it already felt like a LONG time ago.

In short, there are many for whom it may not have seemed like such a bad time to try to slip some old-time religion back into the classroom, and nothing was more old-time-y than the Ten Commandments.

Rules to Live By

There’s nothing like a decade or two of perceived dissolution and chaos to make law-and-order look wonderfully shiny and assuring, and the Decalogue fit the bill perfectly. It offered clear guidelines for proper living, literally set in stone, but minus the sort of detailed penalties and depressing legalistic minutia spelled out elsewhere in the Old Testament.

It didn’t hurt that it was more-or-less universally revered – Protestants, Catholics, even Jews liked it! (You know, all the REAL religions.) What more could one ask?

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.

And yet, there were a few parents who for some reason thought this might violate the Establishment Clause. The case worked its way through the courts until it was accepted on appeal by the big one.

The Decision

The Court’s 5 – 4 decision was nevertheless issued per curiam, meaning “by the court.” Per curiam decisions are traditionally  for situations in which there was little need to elaborate on constitutional reasoning and the Court was so united as to eliminate the need for an identifiable voice speaking for the whole. Gradually over the course of the 20th century, however, the Court began allowing concurring opinions to per curiam decisions, then dissents… and eventually it became an unacknowledged tool for avoiding personal responsibility for controversial ideas or arguments.

In other words, per curiam opinions periodically allow a degree of avoidance and misdirection from a body otherwise recognized as unflinching and unafraid.

The Court’s anonymous majority opinion revisited the three-part “Lemon Test” laid out less than a decade before in Lemon v. Kurtzman (1971). Part one stated that in order to pass constitutional muster, a law must have a secular purpose to begin with. Clearly, the Court argued, that was not the case here. The Ten Commandments weren’t being used to study the evolution of written law, or in comparative religion, or even as literature or general history. They were just… there.

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.

Nor was the majority impressed by the State’s “Religious values? Are they really?” defense:

The preeminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature. The Ten Commandments are undeniably a sacred text in the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact…

We conclude that {this legislation} violates the first part of the Lemon v. Kurtzman test, and thus the Establishment Clause of the Constitution.

Having failed the first test, there was no reason to discuss the remaining two. End of story.

The Dissent(s)

Four justices disagreed, but only one went to the trouble to elaborate as to why. Judging from his tone, Justice William Rehnquist (who’d later become Chief Justice) was shocked and a tad appalled that the Court wouldn’t simply take state legislators at face value when they explained that posting religious laws without context in every school classroom regardless of age level or subject matter was actually part of a very important historical lesson on the evolution of Occidental jurisprudence. Because isn’t that normally how lesson plans are put together – mass stapling of posters paid for by outsiders?

Rehnquist quotes from previous decisions extensively and rather effectively:

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” (Abington School District v. Schempp, 1963) and that “[t]he history of man is inseparable from the history of religion” (Engel v. Vitale, 1962). Kentucky has decided to make students aware of this fact by demonstrating the secular impact of the Ten Commandments…

What was arguably his strongest rhetorical moment, however, came in one of his footnotes:

The Court’s emphasis on the religious nature of the first part of the Ten Commandments is beside the point. The document as a whole has had significant secular impact, and the Constitution does not require that Kentucky students see only an expurgated or redacted version containing only the elements with directly traceable secular effects.

Aftermath

Stone was one of the first cases to rule that even a “passive display” of religion could nevertheless violate the Establishment Clause. It was from this reasoning the Court would subsequently take issue with certain government-sponsored Christmas displays and other state-sanctioned religious ceremonies. The Ten Commandments in particular would become a symbolic “line in the sand” on various state capital grounds or displayed in a public building or two. Consistent with the Court’s decision in Stone, decisions in those future cases would often come down to context – where were they posted, how were they presented, and why were they included?

The 1980s would see a minor explosion of cases directly or indirectly related to the “wall of separation” between religion and public education. The question of equitable facility usage became a thing – can schools who allow community groups to meet on school grounds after-hours deny the same opportunity to religious groups? (Spoiler: Nope.) Indirect aid to religious institutions via tax credits for parents, secular school supplies, or simply sending over teachers kept coming before the Court, always in slightly different forms and forcing the Court to continually revise their solutions. There was even a brief foray into “Evolution vs. Creationism” before the decade was out. 

By far the most interesting cases, however, would be ever-shifting efforts to circumvent Engel, Abington, and the rest by testing one problematic element at a time. Eventually, all sorts of religious expression in public schools would be framed as “student led,” but in the 80s it started much more simply. What if schools weren’t posting commandments, reading Bible verses, or leading students in prayers? What if every day simply began with a… “moment of silence”?

Turns out that one will be hard to dispute, no matter how obvious the intent. The right was finally going to have a few wins.

RELATED POST: A Wall of Separation – The Ten Commandments (Part One)

RELATED POST: A Wall of Separation – The Ten Commandments (Part Two)

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

“Have To” History: Wisconsin v. Yoder (1972)

~ Blue Cereal

I’m working on a follow-up to “Have To” History: Landmark Supreme Court Cases. I haven’t settled on a title yet, but the content seems to revolve around cases involving church-state separation in relation to public schools – and there are a LOT of them. I’m posting first drafts as I go, partly to share with you, my Eleven Faithful Followers, and partly because nothing brings out the typos, grammar errors, and other shortcomings like publishing something online.

“Normally I’d Agree With You, But Come On… It’s the AMISH!”

Background

Wisconsin v. Yoder (1972)

Orthodox Amish and your more conservative Mennonites are a fairly traditional bunch. While popular culture tends to oversimplify their beliefs and caricaturize their lifestyles, it’s fair to say that in general they prefer to avoid excessive entanglement with the modern world. The Amish tend to be a bit more separatist overall, preferring to remain in their own communities and interact with the world as little as possible. Contemporary Mennonites, on the other hand, can be difficult to spot until you notice the social justice bumper sticker on their hybrid parked tranquilly in the church lot.

Even these are overgeneralizations, however. Both faiths encompass a wide range of approaches to appearance, behavior, technology, and interactions with outsiders. What’s fairly consistent across the spectrum is a prioritization of family and community over wealth, convenience, or individual accomplishment, and of course a particularly devout commitment to their Christian faith. From these ideals stem all the rest – the horses and buggies, the dashing hats and svelte black coats, the aversion to technology, and that wacky love of hard work and simple living. 

In short, it’s not about whether electricity or shopping at Target is “evil;” it’s about what best serves the spirit over the flesh and the community over the individual. As it turns out, that was the issue in the early 1970s when Jonas Yoder and Wallace Miller, both Old Order Amish, and Adin Yutzy, a Conservative Amish Mennonite, pulled their children out of public school in Wisconsin after they’d successfully completed the 8th grade. They argued that while a basic education was fine – maybe even necessary – high school itself was too full of behaviors, ideologies, and subject matter which brazenly violated their religious beliefs and priorities. Rather than expect the school system to change to accommodate their faith (that wouldn’t be a very Amish approach), they simply removed their children from the system.

It’s not like the Amish or Conservative Mennonites let their kids lay around in their underwear eating Doritos and playing video games all day. Teenagers were expected to help care for animals, raise crops, cook and sew, or otherwise labor their little hearts out while learning essential skills for a long, healthy life in their respective communities. It seems unlikely their counterparts at the local high school were keeping a similar pace.

Amish You So Much

Amish Target

Wisconsin law required that kids be in school SOMEWHERE – public or private was up to the parents – until they were at least 16. Yoder, Miller, and Yutzy were prosecuted for violating state law and the case went to trial with Jonas Yoder acting on behalf of the group. While he was no doubt a capable individual, the Amish and Conservative Mennonites aren’t big on using the court system to resolve their difficulties. They do not, by and large, sue people for damages or seek legal recourse for minor infractions. An “Amish Lawyer” would be about as common as a “Shiite Stripper” or a “Hindu Butcher.”

The original court, in an effort to remain consistent with existing Supreme Court jurisprudence, determined that the requirement that parents keep their kids in school until the age of 16 was a valid secular state function. While there was no doubt that the Amish and Mennonites had genuine religious objections (they weren’t using religion as a pragmatic excuse for illegal behavior), that didn’t override the larger needs of the state as a whole. The families were convicted of violating Wisconsin law regarding mandatory school attendance, and each fined $5.00.

$5.00, as it happens, was the minimum penalty allowed by the statute in question. It doesn’t seem like too much of a leap to infer that while the court was willing to adhere to the letter of the law, they perhaps lacked the passion to make an example of these bearded rebels.

It was at this point that a Lutheran minister by the name of William C. Lindholm came on board. While he may not have shared the defendants’ precise theology, he supported their claims to religious freedom. The case was appealed to the Wisconsin Circuit Court, which affirmed the lower court’s decision, then to the State Supreme Court, which reversed it on the grounds that Wisconsin hadn’t actually demonstrated that there was anything about going to high school which was SO essential to the public good that it justified overriding the “free exercise” of the families involved.

It was now the State of Wisconsin’s turn to appeal (which is why their name is first in the title), and the case reached the Supreme Court.

The Decision

Walking Amish

The Court, in a sort-of-unanimous decision, supported the Amish. Chief Justice Warren Burger wrote the Majority Opinion. Two Justices (Lewis F. Powell Jr. and William H. Rehnquist) abstained, as they’d joined the Court after the case had been heard. Justice Stewart wrote a very brief (and odd) concurrence, in which he was joined by Justice Brennan. Justice White added a longer (and slightly less odd) concurrence, in which he was joined by both Brennan AND Stewart. And Justice Douglas filed a dissent, in which he was joined by no one, and in which he supported the Court’s majority decision.

For such a landmark case, this one was a bit of a mess. Imagine if it HADN’T been unanimous…

Chief Justice Burger’s Majority Opinion took a three-step approach to explaining the Court’s rationale. First, he addressed the question of whether the beliefs in question were legit (as opposed to being conjured up pragmatically to justify illegal behavior or otherwise falling outside commonly accepted definitions of “religion”). After sharing a history lesson on the Amish, Burger determined that they and their spin-offs were all widely-recognized and well-respected forms of traditional American Christianity.

Since this had never actually been challenged, it’s worth asking why Burger would devote so much energy to “establishing” the validity of the Amish and their ilk as religious communities. The most obvious explanation is the Court’s constant awareness that everything they say and do becomes precedent for every other court, both present and future, at every level across the nation. Thus, a degree of respectful delineation is often appropriate. One can’t help but suspect, however, that there’s a secondary motivation for Burger’s cautious venture into historical apologetics. He was in many ways laying the groundwork for the Court’s almost paradoxical decision: “Look, we agree with the State in theory – in most circumstances they’d be correct and we don’t want anyone else to get carried away and think they can do whatever they want in the name of religion. But, dude… this is the AMISH.”

He put it a bit more jurisprudentially than that.

Step two was to examine whether or not the law in question created a substantial burden for the beliefs validated in step one: 

The impact of the compulsory attendance law on respondents’ practice of the Amish religion is not only severe, but inescapable, for the Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs… It carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent…

{T}he unchallenged testimony of acknowledged experts in education and religious history, almost 300 years of consistent practice, and strong evidence of a sustained faith pervading and regulating respondents’ entire mode of life support the claim that enforcement of the State’s requirement of compulsory formal education after the eighth grade would gravely endanger, if not destroy, the free exercise of respondents’ religious beliefs.

So that would be a “yes.”

Finally, the Court asked whether or not the state’s interest in pushing public education beyond 8th grade was substantial enough to justify overriding the rights of Amish parents to keep their kids home doing other things. At that point, there was no way to avoid substantial subjectivity, despite the Court’s effort to frame their response in terms of precedential cases and constitutional reasoning. Despite the substance of their decision, they seemed uncomfortable straying too far from the “belief-action” distinction established in Reynolds v. United States (1879).

Beliefs v. Actions (Place Your Bets)

Amish Church

Reynolds was a polygamy case. Mormons insisted the practice was part of their “free exercise” of religion. It didn’t hurt anyone and involved only consenting adults. Dominant American culture countered with “Eeewww! Weird!” and the courts were included to agree. Given that “Gross!” was a rather weak constitutional argument, they instead proffered the “belief-action” theory – you can BELIEVE whatever you like, thanks to the First Amendment, but the law can still set limits on what you can DO. In other words, freedom of religion is not absolute. The State has a right and an obligation to pass rules that help hold society together, which includes not letting people just go and marry whoever they want as many times as they want and then go about their business like it wasn’t totally “OMGWHAT?!”

Again, they put it a bit more formally.

Strictly construed, this same reasoning would prescribe that while the Amish and their ilk were welcome to BELIEVE whatever they liked about public schooling and the values of the modern world destroying their youth, that didn’t mean they could ACT on it without consequences. The Court wasn’t quite ready to go there, however, instead choosing to remind us a half-dozen more times what nifty folks the Amish were and how well they seemed to get along without telephones or nuclear power or public assistance. All the usual reasons given for why kids needed to stay in school – to get good jobs, to become informed voters, to grow into productive members of society – the Amish already had covered quite convincingly.

The Court had already been quietly pulling back from this “belief-action” ideology, despite paying it clarified respects in Wisconsin and then becoming infatuated with it again in subsequent cases. Major decisions were finding more and more instances in which sincerely held religious beliefs were enough to offset otherwise valid laws or policies. (In the most famous of these,  Sherbert v. Verner (1963), the Court required the State of South Carolina to pay unemployment to a Seventh Day Adventist who was fired for refusing to work on Saturdays, despite specifically guaranteeing protection for those who might object to working on Sundays. The burden thus imposed on Seventh Day Adventists exclusively violated their right to “free exercise” of their faith.)

Aftermath

Amish Horse & Buggy

The ultimate import of Wisconsin v. Yoder was – and is – to some extent “in the eye of the beholder.” It’s easily read as strengthening parental rights over their children’s education, a principle established in prior cases but without the overtly religious motivation seen here. It was certainly a major victory for the Amish and their ilk, but to what extent similar exemptions would apply to other religious groups was uncertain.

On the other hand, the Court’s written opinion certainly suggested that one of the primary reasons the Amish didn’t have to obey this particular law was because their theology, lifestyle, and work ethic fit closely enough with the larger ideals of traditional American culture without directly participating in the modern version more than necessary. If a primary purpose of Supreme Court jurisprudence is to offer guidance and consistency going forward, a decision built around the exception to several already uncertain “rules” wasn’t exactly ideal.

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

RELATED POST: A Wall of Separation: Lemon v. Kurtzman (1971) and the “Lemon Test”

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

“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.

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“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.”

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