The Supreme Court and "Separation of Church and State"

When I was a junior at Caltech, I took a course entitled "The Supreme Court in U.S. History," taught by Professor J. Morgan Kousser. This turned out to be one of the best courses I have ever taken, certainly my favorite non-science course. Although Dr. Kousser and I are (shall we say) rather different in our political opinions, I developed quite a bit of respect for him, and I think he enjoyed having an opposing viewpoint articulated in his class. Since taking this course, I have been very interested in following the Supreme Court's activities in the news, and trying to understand the reasoning and purpose behind its rulings. I still occasionally consult (and highly recommend) the textbook from the course, Constitutional Law and Politics by David M. O'Brien.

One perennial hot topic before the Court is the "separation of church and state." The First Amendment to the Constitution decrees that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Obviously, there are two competing directives here that must be balanced with each other, firstly that Americans must be allowed Free Exercise of their religion regardless of what it is, but secondly that the government must refrain from Establishing any particular religious practice as the "official" one. Since the mid-20th century, the Supreme Court has made two important decisions: 1) that the 14th Amendment has extended the Bill of Rights (including the religion clauses) so that they must be followed by state governments as well as the federal; and 2) that the Establishment Clause requires the government to be neutral towards all religion, neither advancing it nor inhibiting it, and not favoring Christianity over other religious practices.

Were these decisions good ones? Many Christians (especially those active in politics) stridently cry out that they are not, that this is a "Christian nation" and our laws should recognize this by favoring Chrisitanity over other religions. Public schools should be allowed to lead their students in prayer, devotional Bible reading should be part of the curriculum, gaudy monuments to the Bible should be displayed in the Alabama state judicial building, and many other things. I'll get more into that debate another time, but for now let me simply say that I have a hard time agreeing with that. There are a very large number of people in this country who are not Christians, or who do not subscribe to prevailing forms of Christianity (an equally important minority). When the state gets involved in sponsoring a particular form of religion, these other citizens receive the message that this country does not belong to them as much as it belongs to the Baptists (or whomever), and that is contrary to the spirit of our democracy. Furthermore, state sponsorship of religion creates an atmosphere in which people are likely to join the Church out of peer pressure; and if we have learned anything in the 1,700 years since Constantine, I think it is that such an arrangement is corrupting to the Church. The Church becomes filled with people who are there not because they have any inclination towards godliness, but simply because it is the expedient thing to do. The Church has always been spiritually healthier in times and places of persecution, and while I am not wishing for any persecution to befall us, I do think it is a good policy at least for the government to remain neutral on religion. It is good for non-Christians (they have a government that represents them as much as it represents Christians), it is good for the Church (ungodly people are less likely to join out of expedience), and it is good for people who do become Christians (their conversion is more likely to stem from sincere spiritual reasons).

One rhetorical weapon employed by the antidisestablishmentarians is that the Supreme Court is not in fact "neutral" towards Christianity but is actively hostile towards it. It seems to me that every time a decision goes against their agenda, the news becomes loudly trumpeted in Christian circles, but the positive decisions are quickly forgotten. In short, I think that this stance is in error. The fact is that there is broad latitude for Christian practice by students in public schools, and also for school curricula to recognize the important role of religion in American life without actually endorsing religion. By and large, though I certainly think some cases have been wrongly decided, I think the Supreme Court has done a fair job of maintaining "benevolent neutrality" towards religion.

But don't take my word for it, judge for yourself. Here is a summary of major Supreme Court decisions that address the meaning of the Establishment and Free Exercise clauses. For the sake of brevity, I'm only including rulings directly related to public schools, which is probably the hottest topic anyway. Red indicates a ruling in which the government was found to have gone too far in Establishing a religion; Green indicates a ruling that the government's actions were appropriate "benevolent neutrality"; Yellow indicates the ruling was mixed.

• Everson v. Board of Education (1947) - 5:4 - Read the full opinion - The doctrine of "separation of church and state" was explicitly invoked by the Supreme Court for the first time, but the Court also held that government reimbursement of bus fare to parents of children attending private religious schools was acceptable under the doctrine.
  
• McCollum v. Board of Education (1948) - 8:1 - Read the full opinion - Public schools cannot allow students to undergo private religious instruction on campus during school hours.
  
• Zorach v. Clauson (1952) - 6:3 - Read the full opinion - In contrast to McCollum, public schools may release students for off-campus religious instruction during school hours.
  
• Engel v. Vitale (1962) - 6:1 - Read the full opinion - Public schools may not lead students in reciting a nondenominational prayer.
  
• Board of Education v. Schempp (1963) - 8:1 - Read the full opinion - Public schools may not conduct structured devotional reading of the Lord's Prayer and other Bible verses.
  
• Epperson v. Arkansas (1968) - 9:0 - Read the full opinion - State laws may not forbid a teacher from teaching evolution.
  
• Tinker v. Des Moines School District (1969) - 7:2 - Read the full opinion - Although not specifically a religion case, this ruling affirmed that students retain broad rights to Free Speech while at school. It has been a foundation for many subsequent rulings upholding the rights of students to express their religious beliefs at school.
  
• Lemon v. Kurtzman (1971) - 8:0 - Read the full opinion - States may not directly fund religious schools, including use of public school funds to pay salaries of parochial teachers. This ruling instituted the three-pronged "Lemon test" which holds that, on order to be valid, a law must 1) have a secular purpose, 2) have a primary effect which neither advances nor inhibits religion, and 3) not excessively entangle government with religion.
  
  
  
  • Since Lemon, a number of subsequent rulings have dealt with the issue of government funds finding their way to religious-affiliated schools. In some cases the procedures were found acceptable, in other cases not. These cases include Tilton v. Richardson (1971), Essex v. Wolman (1972), Hunt v. McNair (1973), Levitt v. PEARL (1973), Meek v. Pittenger (1975), Roemer v. Maryland (1976), Wolman v. Walter (1977), New York v. Cathedral Academy (1977), PEARL v. Regan (1980), Mueller v. Allen (1983), Aguilar v. Felton (1985), Zobrest v. Board of Education (1993), Agostini v. Felton (1997), Mitchell v. Helms (2000), and Zelman v. Simmons-Harris (2002). Read the full opinion in the Zelman case, which upheld Cleveland's school voucher program last year.
    
  
  
• Stone v. Graham (1980) - 5:4 - Read the full opinion - State law may not require posting of a Ten Commandments plaque in public school classrooms. (However, a display of the Ten Commandments can be permissible if it is in a context that emphasizes the social and historical and legal importance of the text, rather than focusing on its religious significance.)
  
• Widmar v. Vincent (1981) - 8:1 - Read the full opinion - Students must be allowed to use state university buildings and grounds for purposes of religious worship, if access is allowed to other groups.
  
• Wallace v. Jaffree (1985) - 6:3 - Read the full opinion - Alabama's law authorizing a "moment of silence" in public schools "for meditation or prayer" is too obviously religiously motivated, but a more neutrally-worded "moment of silence" law could be constitutional. (As of 2003, several states have acceptable "moment of silence" laws.)
  
• Edwards v. Aguillard (1987) - 7:2 - Read the full opinion - Louisiana's law requiring the teaching of "creation-science" in public school science classrooms has a religious purpose and is unacceptable. (However, individual school boards do have broad authority to set their own science curriculum; they can and should avoid teaching philosophical naturalism.)
  
• Board of Education v. Mergens (1990) - 8:1 - Read the full opinion - Public high schools may not discriminate against student activity groups meeting on school grounds on the basis of "religious, political, philosophical, or other content of the speech at such meetings." Specifically upheld student-led Christian groups at public high schools.
  
• Lee v. Weisman (1992) - 5:4 - Read the full opinion - Professional clergy may not give an invocation or benediction at a public school graduation ceremony.
  
• Lamb's Chapel v. Board of Education (1993) - 9:0 - Read the full opinion - Community religious groups must be allowed to use public school facilities outside of school hours, if similar access is offered to other community groups.
  
• Rosenberger v. University of Virginia (1995) - 5:4 - Read the full opinion - Student religious groups must be allowed to receive state university funding, and to use university facilities to print newsletters, when similar benefits are offered to other student groups.
  
• Board of Education v. Doe (2000) - 6:3 - Read the full opinion - A student using the public address system at a public high school football game is a representative of the state, and thus may not deliver an invocation. The Court explains that "school sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherants that they are outsiders, not full members of the political community, and an accompanying message to adherants that they are insiders, favored members of the political community." Interestingly, the plaintiffs were not atheists at all, but Mormons and Catholics who were uncomfortable with the Baptist character of the prayer.
  
• Good News Club v. Board of Education (2001) - 6:3 - Read the full opinion - Community religious groups must be allowed the same after-hours use of elementary school facilities as other community groups.
  

P.S.: Read the second part of this discussion. 

Posted by Matt on 8/24/2003 01:47:00 AM