The Decisions

             Framed broadly, each Supreme Court dispute concerning religion and the schools turned on the legal question of Church-State separation: how to interpret the First Amendment's injunction that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...."

             In Everson v. Board of Education (1947), the Court responded to this query by erecting--or at least, by cementing more securely in place--Jefferson's metaphorical "wall of separation" between religion and government. Each was to operate independently, in separate spheres; neither should influence the policies or the practices of the other. In particular, the government's stance must be one of careful neutrality:

Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion to another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.[12]

             Acknowledging that "total separation is not possible in an absolute sense"--government involvement with religious organizations was inevitable in such "incidental" matters as providing police and fire protection for church property--the Court in Lemon v. Kurtzman (1971) lent its doctrine greater specificity, outlining a three-pronged test by which legislation at issue would be evaluated: "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 entanglement with religion'."[13]

             The Court's policy was founded, in large part, on its interpretation of the intent of the First Amendment's framers and of the broader historical context (e.g., that of Enlightenment principles and of religious persecution in Europe and within the colonies themselves) in which the Bill of Rights was composed. From this contextual foundation, the Court articulated three primary rationales for its stance. First, particularly in light of the nation's legacy of persecution and sectarian conflict, religious freedom must be recognized by the courts as a fundamental individual right, one that encompasses both majority and minority practices and practitioners (see, e.g., Everson v. Board of Education). Thus, the Court argued, the intent of the Establishment Clause was not simply to prohibit the creation of a State church, or to preclude favoritism of one Christian sect over another, but was meant to apply to religion in the broadest sense. Likewise, such governmental favoritism toward one or a few sects must be avoided because it often leads to rending conflict and devisiveness; the Establishment Clause was designed to avert sectarian-based political strife (see, e.g., Mueller v. Allen, 1983).[14] (This concern was echoed in the 19th-century debates regarding the assimilationist mission of the "common school.”) Finally, the separation of Church and State benefits both institutions, while the union of the two "tends to destroy government and to degrade religion" (Engel v. Vitale,  1962).[15]

             Its reading of the First Amendment led the Court, in a series of passionately contested decisions, essentially to prohibit the recitation of prayers and Bible verses in the classroom, practices it interpreted as an impermissible joining of the public and private spheres.

             The earliest and perhaps most widely recognized of these rulings was Engel v. Vitale, in which plaintiffs objected to the practice, established by the New York State Board of Regents, of beginning each school day with the following prayer: "Almighty God, we acknowledge our dependence upon thee, and we beg thy blessings upon us, our parents, our teachers and our country."[16] The prayer was constitutionally permissible, the state maintained, because of its "nondenominational" generality, and because objecting students were permitted to leave during its recitation--thus they were not forced to participate. The Court rejected each of these arguments, however, noting that prayer in any form was clearly a religious activity and therefore prohibited by the Establishment Clause, and that impermissible government practices need not involve direct compulsion: "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."[17]

             Given the confusion and conflict this decision has yielded, it is, as Carter observes,

             The following year, in School District of Abington Township v. Schempp (1963), the Court concurrently struck down a Pennsylvania statute that required the state's public schools to begin each day with a reading from the King James Bible, and a Maryland court ruling that upheld the practice of Bible reading by that state's schools.[19] In particular, it rejected the latter state's contention that the practice was secular in nature, intended only to provide "non-religious moral inspiration," and that to enforce a position of neutrality toward religion restricts the majority's right to free exercise of religion. Rather, the Court said, the Bible's status as an "instrument of religion" was beyond dispute, and each state's ceremony unambiguously religious--a characterization implicitly acknowledged by the states in allowing alternate versions of the Bible to be used and in permitting nonattendance by objecting students. The fact that the exercises reflected majority practices was deemed irrelevant:

The very purpose of the Bill of Rights was to...place [certain subjects] beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to...freedom of worship...and other fundamental rights may not be submitted to vote....[20]

In dictum, however, the Court acknowledged the central role in human society that religion historically has occupied, and allowed that an "objective" course of religious or biblical study, conducted as part of a "secular program of education," would not violate First Amendment restrictions.[21]

             A more recent effort to collapse the public/private-sphere distinction in public schools has been made by the proposed insertion of a "moment of silence" at the beginning of each school day. While proponents contend that the ceremony is an "entirely secular way for students to start the day with a quiet moment," Wilson and Drakeman note, critics have cast it (more convincingly) as a "thinly disguised attempt to circumvent the prohibition of school-sponsored prayer in Engel v. Vitale."[22]

             In Wallace v. Jaffree (1985), the Supreme Court reviewed an Alabama statute authorizing a period of silence "for meditation or voluntary prayer." The Court earlier had struck down a related statute that permitted teachers "to lead 'willing students' in a prescribed prayer to 'Almighty God...the Creator and Supreme Judge of the world';" a third statute, which provided only for a moment of silence for "meditation," had not been challenged.[23] As in Engel and Schempp, the Court affirmed its view that the separation of Church and State encompasses both majority and minority perspectives:

[T]he individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority. At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Mohammedism or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects--or even intolerance among 'religions'--to encompass intolerance of the disbeliever and the uncertain....[24]

             Applying the purpose portion of the Lemon test to the statute, the Court found that it had no secular purpose whatsoever. The acknowledged legislative intent was solely to return organized prayer to the classroom: "The addition of 'or voluntary prayer' [to the wording of the earlier, uncontested statute that authorized only "meditation"] 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."[25] The Court significantly distinguished this approach from that of "merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the school day,"[26] a right accommodated by the uncontested statute. The justices apparently would have regarded such a generic "moment of silence" provision as constitutional. Even so, Justice Rehnquist found the majority's interpretation fundamentally flawed and, in a strongly worded dissent, he urged the Court to abandon its doctrine of strict neutrality altogether.