Religious Establishment - Northern Illinois University

Prayer and Religious Teaching in
Public Schools
The Bill of Rights Institute
Indianapolis, IN,
September 29, 2012
Artemus Ward
Department of Political Science
Northern Illinois University
Engel v. Vitale
• New York composed and required a prayer to begin the school day:
“Almighty God, we acknowledge our dependence upon Thee, and
we beg Thy blessings upon us, our parents, our teachers, and our
• Justice Hugo Black held: “Petitioners argue [that] the State's use of
the Regents' prayer in its public school system breaches the
constitutional wall of separation between Church and State. We
agree since we think that the constitutional prohibition against laws
respecting an establishment of religion must at least mean that in
this country it is no part of the business of government to compose
official prayers for any group of the American people to recite as a
part of a religious program carried on by government.”
Abington School District
v. Schempp (1963)
• Pennsylvania law declared that at least 10 verses from the Bible shall
be read without comment at the beginning of each public school on
each school day. At Abington High, the verses were read over the loud
speaker and were then followed by a recitation of the Lord's prayer,
during which students stood and repeated the prayer in unison.
Students who did not want to participate could leave the room. The
Schempps (above) objected to the law and filed suit.
• The Supreme Court asked what the purpose and primary effect of the
policy were and found it unconstitutional. The justices reasoned that
the state passed the law to promote religion and the effect was to
coerce students to participate in religion.
• A majority of Americans have never approved of the Court’s holdings
in Engel and Schempp. Today only about 1/3 agree.
In 1928, Arkansas enacted a law making it a crime for any state university or public
school instructor “to teach the theory or doctrine that mankind ascended or descended
from a lower order or animals” or to “adopt or use…a textbook that teaches”
evolutionary theory.
The law was modeled on Tennessee’s 1925 law that was the subject of the celebrated
Scopes monkey trial where America’s most famous criminal defense lawyer—Clarence
Darrow—defended a 24-year-old High School teacher—John Scopes—who taught
evolution against the state, voluntarily led by former Presidential candidate and Secretary
of State William Jennings Bryan—perhaps the leading fundamentalist of the day.
The history of the law’s adoption makes it clear that its purpose was to further religious
beliefs about the beginning of life. For example, an advertisement placed in an Arkansas
newspaper to drum up support for the act said: “The Bible or atheism, which? All atheists
favor evolution…. Shall conscientious church members be forced to pay taxes to support
teachers to teach evolution which will undermine the faith of their children?”
Epperson v.
• The case began in the mid-1960s when the school system in Little Rock,
Arkansas, decided to adopt a biology book that contained a chapter on
evolutionary theory.
• Susan Epperson, a High-School biology teacher, wanted to use the new book but
was afraid—in light of the 1928 law—that she could face criminal prosecution if
she did so.
• She asked the state courts to nullify the law and when they refused she
appealed to the U.S. Supreme Court.
Epperson v. Arkansas (1968)
• Writing for a unanimous Court, Justice Abe
Fortas relied heavily on the reasoning in
Everson: “The First Amendment mandates
governmental neutrality between religion
and religion, between religion and
• “Arkansas’ law cannot be defended as an act
of religious neutrality. Arkansas did not seek
to excise from the curricula of its schools…all
discussion of the origin of man. The law’s
effort was confined to an attempt to blot out
a particular theory because of its supposed
conflict with the Biblical account, literally
read. Plainly, the law is contrary to the
mandate of the First…Amendment.”
Wallace v. Jaffree (1985)
• The Court became more conservative in the 1970s and 80s
as Republican presidents were able to replace many of the
liberal separationists.
• In Marsh v. Chambers (1983), the Court upheld prayers
before legislative sessions. Ignoring the Lemon test, the
justices said that tradition and history were determinative.
• Wallace involved an Alabama law authorizing a daily period
of silence in all public schools “for meditation or voluntary
prayer.” The law’s sponsor said that the purpose was “to
return voluntary prayer to our public schools.”
• Ishmael Jaffree, a lawyer for the Legal Services
Administration, objected when the law was implemented in
his son’s kindergarten class. The teacher led the students in
saying: “God is great, God is good, let us thank Him for our
food; Bow our head, we all are fed, give us Lord our daily
• The Reagan administration supported the state and urged
the Court to uphold the law. Many hoped the Court would
overturn Engel and Abington.
Wallace v. Jaffree (1985)
• The Court applied the Lemon test, found that the law’s
primary purpose was not secular, and struck down the law.
• Writing for a 6-3 majority, Justice John Paul Stevens explained
that the only purpose of the law was to return prayer to the
schools and made a distinction between prayer and a
moment of silence:
• “The legislative intent to return prayer to the public schools
is, of course, quite different from merely protecting every
student’s right to engage in voluntary prayer during an
appropriate moment of silence during the school day.”
• “The [original] statute already protected that right, containing
nothing that prevented any student from engaging in
voluntary prayer during a silent minute of meditation.”
• “The addition of ‘or voluntary prayer’ indicates that the state
intended to characterize prayer as a favored practice. Such an
endorsement is not consistent with the established principle
that the government must pursue a course of complete
neutrality toward religion.”
Wallace v. Jaffree (1985)
• But many justices expressed their displeasure with the Lemon
test. In dissent, Chief Justice Burger lamented that the majority’s
“extended treatment” of the Lemon test “suggests a naïve
preocupation with an easy, bright –line approach for addressing
constitutional issues.”
• Justice Rehnquist’s dissent questioned the Court’s entire
approach to establishment clause cases beginning with Everson.
• He said the Court was wrong to “concede” Jefferson’s metaphor
of a “wall of separation” or to etch into law such strict separation.
He asserted that for the four decades since Everson, the Court
had operated under a misguided understanding of what the
framers meant by religious establishment.
• The truth, according to Rehnquist, was that the founders,
particularly Madison, intended something more in line with the
nonpreferential position that the establishment clause simply
“forbade the establishment of a national religion and forbade
preference among religious sects or denominations…. It did not
prohibit the federal government from providing
nondiscriminatory aid to religion.”
Edwards v. Aguillard (1987)
• After Epperson, organized interests—particularly religious groups—
lobbied state legislatures to pass new laws.
• Louisiana enacted the Balanced Treatment for Creation-Science and
Evolution-Science in Public School Instruction Act in 1981.
• This law was different from the one struck down in Epperson because it
did not outlaw the teaching of evolution. Rather, it prohibited schools
from teaching evolutionary principles unless theories of creationism also
were taught. Hence, teachers had to teach both or none.
• There were two arguments to justify the law
1. Evolutionary theory is a religious tenet, and the religion is secular
humanism. If evolution is taught so should creationism, which has its
origin in a literal reading of Genesis. In other words, public school
teachers must give equal time to the two primary “religious” views of
the origin of humankind.
2. Creationism is a science just like evolutionary theory and, therefore,
deserves equal treatment in public school curricula.
Edwards v.
Aguillard (1987)
Don Aguillard and Sharon Epperson
Represented by the ACLU, Assistant Principal Don Aguillard and several teachers,
parents, and religious groups filed suit. Supporting their argument were 72 Nobel
prize-winning scientists, 17 state academies of science, and 7 other scientific
The National Academy of Sciences said in their legal brief: “The explanatory power
of a scientific hypothesis or theory is, in effect, the medium of exchange by which
the value of a scientific theory is determined in the marketplace of ideas that
constitutes the scientific community. Creationists do not compete in the
marketplace, and creation-science does not offer scientific value.”
The ACLU argued that the legislature intended to give equal time to a particular
religious view, in violation of the Establishment clause.
The state argued that creation science consists of scientific evidence not religious
concepts. It is no less scientific than is the theory of evolution.
They also argued that the act’s primary purpose was to advance academic freedom.
Edwards v. Aguillard
Writing for a 7-2 majority, Justice William Brennan applied the Lemon test and held
that the law failed the first prong: it was not passed for a secular purpose.
The Court reasoned that the legislature’s stated purpose—to "protect academic
freedom“—was a sham because teachers already had academic freedom to teach
what they believed was appropriate. Instead, the law limited their ability to make
that decision. Indeed, the state claimed that “academic freedom” meant teaching
“all the evidence” yet one alternative was to teach neither creationism nor
evolution. Hence, under that definition, teaching neither would be the opposite of
“all the evidence.”
Instead, the legislature had a "preeminent religious purpose in enacting this
However, the justices did note that alternative scientific theories could be taught:
“We do not imply that a legislature could never require that scientific critiques of
prevailing scientific theories be taught. . . . Teaching a variety of scientific theories
about the origins of humankind to schoolchildren might be validly done with the
clear secular intent of enhancing the effectiveness of science instruction.”
Edwards v.
Aguillard (1987)
• Justice Antonin Scalia, and Chief Justice Rehnquist dissented.
• They construed the term "academic freedom" to refer to "students'
freedom from indoctrination", in this case their freedom "to decide for
themselves how life began, based upon a fair and balanced presentation
of the scientific evidence".
• They also criticized the first prong of the Lemon test, noting that "to look
for the sole purpose of even a single legislator is probably to look for
something that does not exist".
• Campaigns to include “intelligent design” have only increased since this
decision. Public opinion polls have found that 2/3 of American believe
that God definitely or probably created human beings and well over half
favor teaching creationism along with evolution in public schools.
Lee v. Weisman
• Is a state-approved, clergy-led prayer at a public school
graduation constitutional?
• Justice Kennedy initially voted that it was, switched his vote, and
finally struck down the policy for a 5-4 majority.
• Instead of applying the Lemon Test, Kennedy applied what Justice
Scalia mockingly called the “psycho-coercion test”
• Kennedy said that “subtle coercive pressures exist and the
student had no real alternative which would have allowed her to
avoid the fact or appearance of participation.”
Santa Fe Independent
School District v. Doe
• The justices faced a tradition of long standing in many communities: public
prayer at high school football games.
• At issue was the policy of a Texas public school district that allowed student-led
invocations to be delivered on the public address system during pre-game
• To ensure continuing support for the practice, the school district required an
annual vote of students, by secret ballot, on whether they wanted public
prayers at the games. If the vote favored the invocations, a second election
took place to select a single student who would deliver the prayers at all home
games for that season.
• The school required that the prayers be consistent with the district’s policy
goals: to solemnize the event, to promote sportsmanship and safety, and to
establish the appropriate environment for competition. Otherwise, the content
of the message was left to the discretion of the student delivering it.
Santa Fe Independent
School District v. Doe
The Court struck down the policy 6-3.
• Writing for the majority, Justice Stevens employed three different standards in
order to satisfy each of the justices in the coalition.
• To satisfy Justice Sandra Day O’Connor he said that the practice constituted an
endorsement of religion with the government sending a religious message about
who was an insider or outsider.
• To gain Justice Kennedy’s vote, he used the coercion argument that, although
generally voluntary, some students (players, band members, cheerleaders, etc.)
were required to attend. Furthermore, there is often times strong peer pressure
for members of the community to attend .
• Finally, he explained the first prong of the Lemon test was violated because the
government policy had a religious purpose.
• In dissent, Chief Justice Rehnquist—joined by Justices Scalia and Thomas—said
the majority opinion “bristles with hostility to all things religious in public life”
and that religious expression by private individuals at public events is
Elk Grove v.
• The Pledge of Allegiance has included the phrase “under God” since 1954.
• California requires public elementary school teachers to lead students in the
• Newdow, an atheist, challenged the Pledge that his daughter was required to
• The Court ducked the issue by holding that Newdow, as a divorced father who
did not have legal custody of his daughter, did not have standing to bring the
suit. In his opinion for the Court, liberal Justice John Paul Stevens added: “[The
Pledge’s] recitation is a patriotic exercise designed to foster national unity and
pride in those principles.”
• Still, Rehnquist, O’Connor, and Thomas went to great lengths in separate
opinions to explain why the Pledge was constitutional.
• In the area of school prayer and teaching religion in public schools,
the Court has been fairly consistent.
• Unlike in other sub-categories of Establishment Clause jurisprudence,
the justices have been generally separationist.
• Although the justices have squabbled over the most appropriate test
to apply, the outcomes have never been in serious doubt: prayer and
religious instruction in public schools is unconstitutional.