Constitutional Topic: The Constitution and Religion
The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns the Constitution and Religion. Religion appears is especially contained in the 1st Amendment.
Source material for this topic page includes Origins of the Bill of Rights by Leonard Levy (Yale University Press, New Haven, CT, 1999) and The Bill of Rights by Akhil Reed Amar (Yale University Press, New Haven, CT, 1998). The First Amendment Center and ReligiousTolerance.org were also invaluable resources. For news reports on contemporary issues, especially Judge Roy Moore and the Pledge of Allegiance, the CNN.com site was an invaluable resource.
To say that religion is a big topic of interest to a lot of people in the United States today is a bit of an understatement. It would, however, be incorrect to say that because of the great deal of attention religion and government is getting today, it is a more important topic now than ever before. On the contrary, religion and government has been a matter of great importance and concern to many for centuries.
Today, some headlines highlight some of the issues that surround us: The Chief Justice of the Alabama Supreme Court is removed from office for refusing to remove a monument to the Ten Commandments from his court house building. A California atheist sues to remove the words "under God" from the Pledge of Allegiance and loses; then wins on appeal; then loses in the Supreme Court. President George W. Bush is criticized for his idea of the Faith-Based Initiative, where faith-based organizations could get federal funds where previously they had been barred. Public school bus drivers are required to remove holiday decorations from their buses after complaints of "offended" parents.
These stories, some national, some local, all have one thing in common — the relationship between religion and government. It is a sticky wicket. We are a nation of many religious faiths, and many of us work for a government in some capacity. Is there any way that religion, and the religiousness of people, can be separated from government and the role of people in government? Can religion and government co-exist without crossing over each others' boundaries? What are those boundaries? What exactly is the separation of church and state?
These are some of the questions that this Topic Page will address. Likely, this page will not change any one's mind on the subject — it is a highly personal one. The goal is not to change minds, but to explain what is in the Constitution, what the Supreme Court has said about the topic over time, and how the topic is being seen today.
Religion makes only one direct and obvious appearance in the original Constitution that seems to point to a desire for some degree of religious freedom. That appearance is in Article 6, at the end of the third clause:
[N]o religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
This statement is simple and straight-forward, and applies to all offices in the entire United States, both state and federal. The clause simply means that no public position can be required to be held by any one of any religious denomination. It would be unconstitutional for there to be a requirement that the President by Lutheran, or even for the mayor of a small town to be Christian. Likewise, it would be unconstitutional for a law to forbid a Jew or Muslim from holding any office in any governmental jurisdiction in the United States. (This having been said, it should be noted that several state constitutions do have a religious test — specifically, they deny office to anyone unwilling to acknowledge God or a Supreme Being.)
In the debates of the Constitutional Convention, religion did not get a lot of sound bites. It should be noted that without exception, the Framers were Christian or, at the very least, deists (generally, deists believe in a single god who set the universe on its course and then stepped back to watch; some deists believe their deity is the same God of Judeo-Christian tradition, some do not). There were no Jews or Muslims, no Hindus or atheists, and only two Roman Catholics. There were members of more than a half-dozen sects of the Protestant side of Christianity, though. Disagreements about style and method of worship between them were nearly as vast and incongruous as any seen today between, say, Jews and Muslims, such that the Framers wanted to ensure that no one sect could ever seize control of a government and start a theocracy.
James Madison, when speaking of the method and manner of the election of the members of the Congress, noted that even "Religion itself may become a motive to persecution and oppression," telegraphing his own desire for no religious test for government service. He had been a prime mover in the efforts of some Virginia lawmakers to ensure that no preference be given to any religion in that state, and that a proposed tax to aid religious efforts be defeated. Madison and one of the Pinkney cousins moved, in the waning days of the Convention, that the Congress be permitted the power to establish a university, with the express stipulation that "no preferences or distinctions should be allowed on account of Religion." The motion was turned down on a six to four vote, but it was another illustration of his desire to extend no preference to any religious sect.
There is one other direct bow to religion in the original Constitution, and it is a bit obtuse. The Presidential Oath of Office is codified in the Constitution in this way:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Again, the reference might be obtuse, but it is the inclusion of language in the oath that allows an incoming President to swear or affirm the oath. This alternate text has been described both as a way of accommodating those religious persons for whom "swearing" was forbidden, and as a way for the unreligious to take the oath with the same force of personal responsibility that swearing would have for a religious person. Either way, the alternate text attempts to make the oath all-inclusive and religion-neutral.
Finally, the Constitution refers to the year that the Convention created the document as "the Year of our Lord one thousand seven hundred and Eighty seven." Some have argued that the use of the term "Lord" in this way is indicative of something, but it is indicative of nothing more than a standard way of referring to years in that time period.
Some state constitutions are not shy about referencing God — a study of such references is available.
The Framers thought that they had constructed a very complete and comprehensive document. But many people disagreed, and though the opposition had many issues with the Constitution, they focused on one in particular: the lack of a bill of rights.
Almost all of the state constitutions contained bills of rights — rights that the people of the states were guaranteed to enjoy regardless of any law or rule to the contrary. The supporters of the Constitution felt that a bill of rights was unneeded at best, because the federal government was not allowed to legislate on issues it had no direct mandate to do so, and dangerous at worst, because a list of rights could necessarily limit the rights of the people.
In the end, many supporters of the Constitution, including one of the most prominent, James Madison, agreed to support a bill of rights in the Constitution, if it could be ratified. Several of the states included suggested amendments, including rights of the people, in their ratification documents. The push was on for a bill of rights in the Constitution. Madison was true to his word — on June 8, 1789, Representative James Madison rose and gave a speech in the House where he introduced a series of articles of amendment. One concerned religious freedom:
The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
Madison's proposal follows the proposals of some of the states. New Hampshire's read:
Congress shall make no laws touching religion, or to infringe the rights of conscience.
Virginia was much more verbose:
That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the exercise of religion according to the dictates of conscience, and that no particular sect or society ought to be favored or established by law in preference to others.
New Yorkers had the same to say, but more succinctly:
That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others.
Aside from New Hampshire's wide-reaching "no touch" proposal, all of these have a few elements in common. First, no national religion should be established, in contrast to several European nations of the time (and to this day) which have an official state church. Second, that no one sect of any religion be favored by the government. Third, that all persons should be free to worship in whatever manner they deemed appropriate for them.
Through the debates in the House, Senate, and conference committees, the wording of all of these proposals was whittled down to the religion clauses of what is our 1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.
Does this final version have the same effect of all the other proposals? Was it the intent that these clauses of the 1st Amendment the same as that of New Hampshire's "no touching" proposal? Probably. Whereas in Europe, the "establishment of religion" did mean a state church, it took on a whole new meaning in America. Several attempts were made in several states to have and maintain official churches, but the multitude of denominations made it increasingly difficult to do so. If a state established the Congregationalist Church and required taxes be paid to it, it was not long before Lutherans or Baptists began to refuse to pay the tax. By the time the Constitution was ratified, several states had official state churches, but not official state denominations. In other words, a state would charter a church as it would a business today, but it would have no other formal role in the running of the church. Even that practice was waning, with only six states incorporating churches in any way by 1789. Clearly, the trend in church/state relations was towards no relationship at all.
In the end, the 1st Amendment not only prevents the establishment of a national religion, but it also prohibits government aid to any religion, even on an non-preferential basis, as well as protecting the right of the individual to choose to worship, or not, as he or she sees fit.
The Bill of Rights, however, had no effect on how a state treated its churches. Unlike today, the Bill of Rights applied only to the rules and laws of the federal government. The states were still free to establish churches, to direct church taxes be paid, and to even require attendance in church, all within the bounds of the state's own constitution. As noted, many did. While the "free exercise" clause is undoubtedly referring to an individual right, the "establishment" clause refers to a state power. This clause not only prohibited the federal government from establishing a national religion, it prevented the federal government from forcing a state to disestablish any state religion.
Often when someone speaks of the constitutionally guaranteed right to religion, they also speak of "the wall of separation between church and state," or simply as "the separation of church and state." What does this mean, and what is the origin of this phrase?
It did not take long after the passage and ratification of the 1st Amendment for people to start interpreting it to simply mean that that federal government had no business getting mixed into religion. Of course, there is more to it than that, especially when it comes to the individual right part of the amendment. But the notion that the government should not become enmeshed in religion is an important concept, too. There is nothing in the Constitution that specifically says that there is a wall of separation between religion and government. The Wall, however, is a nice shorthand metaphor for non-establishment.
One of the founding fathers, Thomas Jefferson, is directly responsible for giving us this phrase. In his 1802 letter to the Danbury Baptist Association, then-President Jefferson used the phrase — it was probably not the first time, but it is the most memorable one. He said:
Believing with you that religion is a matter which lies solely between man and his god, [the people, in the 1st Amendment,] declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.
Jefferson did not have a hand in the authoring of the Constitution, nor of the 1st Amendment, but he was an outspoken proponent of the separation of church and state, going back to his time as a legislator in Virginia. In 1785, Jefferson drafted a bill that was designed to quash an attempt by some to provide taxes for the purpose of furthering religious education. He wrote that such support for religion was counter to a natural right of man:
... no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.
Jefferson's act was passed, though not without some difficulty, in Virginia. Eyler Robert Coates wrote that the act was copied in the acts or constitutions of several states, either in words or in concepts. Jefferson himself was in France by the time word of the act reached Europe, and he wrote back to America that his act was well-thought of and admired.
Jefferson's letter specifically pointed out by the Supreme Court in Reynolds v US (98 US 145 ). For details on Reynolds, see the next section. It has been a notable metaphor for the 1st Amendment's non-establishment concept ever since.
Very early on, in Terrett v Taylor (13 US 43 ), the Court was asked to rule on a dispute over church lands. The lands had originally been a part of Fairfax County, Virginia, but had ended up within the new District of Columbia when the District had been delineated by Congress. The members of the Episcopal church of Alexandria sued when trustees of the church wanted to sell some of the lands the church had been deeded by the state. One of the arguments in the case was that under the Constitution and the 1st Amendment, the state did not have the authority to deed land to a church. The Court rejected the argument that land deeded under a state law, passed in 1776, could be repealed by new state laws, passed in 1798 and 1801 because the 1776 law was thought to be unconstitutional. The new laws removed the deeds to the land. This could not be allowed, the Court wrote:
Such a doctrine would uproot the very foundations of almost all the land titles in Virginia, and is utterly inconsistent with a great and fundamental principle of a republican government, the right of the citizens to the free enjoyment of their property regally acquired.
The Court wrote that it did not wish to rule on the question of the constitutionality of such deeds. The effect of the newer laws was to divest individuals or corporations of lands legally acquired. The Court did state, however, that it did not find the 1776 law to be inconsistent with the Constitution nor with the Virginia Bill of Rights.
In another case, Reynolds v U.S. (98 US 145 ), the defendant, accused of bigamy in the Territory of Utah, argued that the Congress should not be allowed to regulate a religious act, that being bigamy. In particular, bigamy is not "malum in se" (or innately immoral), is not prohibited by the Ten Commandments, and is not prohibited in any of the teachings of the New Testament. Reynolds argued that over such a religious act, the Congress should have no power to legislate. Reynolds argued other, more technical and legal points, but the Court did address this prong of the argument.
The word 'religion' is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is, what is the religious freedom which has been guaranteed.
The Court noted that religion and government had often mixed in the years prior to the Constitution, causing concern among some. The debate culminated in Virginia, where a proposal to set rules and regulations for religious instructors was proposed and postponed — eventually, another bill in defiance of the first was proposed and passed, that being Jefferson's work which established religious freedom. The act included a definition of what religious freedom encompasses:
In the preamble of this act religious freedom is defined; and after a recital 'that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,' it is declared 'that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.' In these two sentences is found the true distinction between what properly belongs to the church and what to the State.
The Court linked Jefferson's words in the Virginia Act referenced to his later words in the Danbury letter, and used the linkage to further its opinion that the Congress did, in fact, have the power to restrict bigamy in the Utah Territory:
Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order.
The Court concluded that to make religious rule or law superior to civil law would make each person "law unto himself" and render the government ineffectual and irrelevant.
The first major religion case in the 20th century was Cantwell v Connecticut (310 US 296 ). In this case, the Supreme Court found that the religious freedoms embodied in the 1st Amendment were protected from state infringement by virtue of the 14th Amendment. The defendants in the case, Newton, Jesse, and Russell Cantwell, a father and his two sons, were convicted of violating several state laws when they canvassed a neighborhood promoting the Jehovah's Witness religion. The law they had been convicted of violating required prior approval of religious solicitations by the secretary of the public welfare council, such approval having not been acquired.
In striking down the requirement for prior approval of solicitations, the Court was unambiguous:
We hold that the statute, as construed and applied to the appellants, deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.
In explaining the freedoms they were referring to, the Court continued:
The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts, freedom to believe and freedom to act.
The Court noted that the first freedom is absolute — there can be no restriction whatever on what the people are free to believe. As the Court noted in Reynolds, however, the freedom to act on belief can be regulated. The main difference in this case was not that solicitations for a religious sect could be regulated, but that the secretary of the public welfare council had to agree that a solicitation was for a valid religious purpose. This prior restraint, the Court wrote, was a censorship of religion and was clearly a "denial of liberty" under the 14th Amendment, and hence under the 1st. The prior restraint law was "obnoxious to the Constitution."
The 14th Amendment was brought up in relation to state laws in another interesting case that did not advance the cause of religious freedom. In Hamilton v Regents (293 US 245 ), a group of Methodist students and their fathers tried to bring suit against the University of California. The University required all students below a certain age to undergo classes in military science and tactics given by the Reserve Officers Training Corps. The students objected on conscientious objector grounds, and were expelled for refusing to attend the classes. The Court found that though there is a liberty question at stake in the case, the ability of the government to compel military service is of a higher nature; though exceptions can be made for conscientious objectors, they are only statutory in nature and not constitutional in nature. This case is notable, however, as it did tacitly acknowledge the need for states to adhere to 1st Amendment religious protections.
Finally, in Everson v Board (330 US 1 ), the Court put the final touch on the incorporation of religious liberty as applies to the states, though in a roundabout way. Arch Everson brought a suit against the Ewing, New Jersey schools for authorizing payments to parents of students attending parochial schools for use of the public bus system to transport the student to school. Everson contended that such payments to parents of parochial school students unconstitutionally funded religion with public funds. The law in question did prohibit the disbursement of funds to any parent who sent their child to a private school that was run for-profit.
The Court disagreed, in a close 5-4 vote, with Everson. In doing so, however, it wrote some powerful statements concerning the 1st Amendment:
The 'establishment of religion' clause of the First Amendment means at least this: 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 over another. Neither can force nor influence a person to go to or to 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 from 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. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'
Despite all of this, the Court found that the public school district's payment for the use of public buses to transport parochial school children was not in violation of the 1st Amendment. It wrote that the public support of bus fares in this way was exactly the same as the public support of the police or fire services that protected the persons, buildings, and grounds of parochial schools. The issue on which the decision seems to have hinged is the fact that the bus fare aid was given to all students regardless of the school the student attended, and without regard for the religion of the student or the school. The aid was, the Court decided, completely neutral on the question of religion.
The culmination of all of these cases came in 1971. The case, Lemon v Kurtzman (403 US 602 ), established what is known today as "The Lemon Test." The Lemon Test is used to examine a law to see if it has the effect of establishing a religion. The Court wrote:
In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: "sponsorship, financial support, and active involvement of the sovereign in religious activity."
Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion."
The test was used in the Lemon Test to answer the central question in that case: can the state pay some of the salary of teachers who teach in parochial schools? The case concerned a Rhode Island law that provided that teachers in parochial schools could receive a supplement from the state if the school spent less per pupil on non-religious education than the average spent in public schools. If so, teachers who taught only secular courses were eligible for the supplemental pay. Rhode Island's argument was that the funds were only paid to teachers of non-religious subjects, and only based on the per-pupil expenditures on non-religious subjects. The Court ruled that the requirements of the state to ensure that the teachers never mentioned religious subjects, and the record keeping and examination to determine the amount spent on secular subjects would be too much of an entanglement. The Lemon case found similar entanglements in similar Pennsylvania laws. The laws may have passed the first two prongs of the test, but failed the third.
This three-pronged test has been used in many cases since it was first promulgated. Though the Lemon Test is not infallible, it has largely stood the test of time and is still in use today.
Prayer in schools
In Good News Club v Milford Central School (533 US 98 ), the Supreme Court ruled that a school may not exclude a religious club from using facilities in the school, after school hours, just because the club is religious in nature. In other words, if the Chess Club can use school property for after school meetings, the Good News Club must also be permitted to use school property. To deny them access is to discriminate on the basis of the Club's religious viewpoint, which is a violation of the Club's free speech. The point behind a policy to ban religious organizations in this way was to avoid Establishment Clause issues. But the Court found that it was clear that since the Club would meet after school hours, there was no way that it could be reasonably concluded that the school was endorsing religion.
The Good News decision is one of many Supreme Court decisions that weave a tangled web when it comes to school prayer. One thing is clear: the Supreme Court has consistently said that a school must not endorse religion or any particular sect of a religion. The trick is in the interpretation of this edict. Often times, as in the Good News case, schools have gone too far, failing the Lemon Test's second prong.
Another major issue that the Court has grappled with in recent years is that of prayer broadcast over the public address system of a school during extra-curricular activities, such as football games or graduation ceremonies. The latter issue was addressed in 1992 by the Supreme Court, in Lee v Weisman (505 US 577). The case involved the invitation by Robert Lee, a middle school principal in Providence, Rhode Island, to a rabbi to deliver an invocation and benediction at graduation ceremonies in 1989. Deborah Weisman was one of the graduates, and her father, Daniel Weisman, objected to the inclusion of the prayers in the ceremony. The Court noted that the rabbi's comments, which are included in full in the Court's opinion, lasted no more than two minutes. Attendance at the ceremony was voluntary. The Court noted that the ceremony was held in school facilities. Weisman had sought a temporary restraining order to block the prayers, but had been unsuccessful. His case was filed at an attempt at a permanent injunction against future prayers.
The District Court had found the practice of invitation of a member of the clergy to offer prayers to fail the second prong of the Lemon Test. The Court of Appeals agreed with the District Court, and the city of Providence appealed to the Supreme Court. In a 5-4 ruling, the Supreme Court also agreed with the ruling in Weisman's favor. The Court noted that while the prayers offered were non-sectarian in nature, in that they referred to and thanked God without reference to uniquely Jewish or Christian belief, the prayer was still primarily religious in nature:
The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so." The State's involvement in the school prayers challenged today violates these central principles.
The Court noted that Lee gave the rabbi a pamphlet that was intended as a guide on how to structure and deliver non-sectarian prayers, but the Court indicated that this good-faith effort, rather than making things better, made things worse: "Through these means, the principal directed and controlled the content of the prayers."
The Court also looked at the effect of the prayer on students. It noted that discourse on issue like prayer in school, is positive, as is tolerating speech you disagree with. But the school environment, religious speech carries with it a "risk of indirect coercion."
What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.
The Court has also tackled the stickier issue of prayer during extracurricular school-sponsored activities. In Santa Fe Independent School District v Doe (530 US 290 ), the Court ruled on this issue. At Santa Fe High School in Santa Fe, Texas, one student was elected as student council chaplain. This student delivered a prayer over the PA system before home football games. Some Catholic and Mormon students and their parents sued the school district over the practice. After the suit was filed, the school held a referendum to let the students decide if the prayer should continue, and if so, to elect someone to deliver the prayer. The student body voted to continue the practice. The District Court allowed the prayer only if it was non-sectarian, but the Circuit Court ruled both the old and new schemes to be unconstitutional. In a 6-3 ruling, the Supreme Court agreed.
Both sides of the issue referred to the previous Lee case. The school district argued that since the prayer was being led by a student, and not by a member of the clergy invited to the school by an administrator. The Court said that it agreed that private-lead speech was much less restricted than public-sponsored speech, but it disagreed that the student's speech was private.
These invocations are authorized by a government policy and take place on government property at government-sponsored school-related events... [T]he school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student's message.
As with the Lee case's directives for the delivery of the invocation, the Court was troubled by the student-based election system, which was put in place to ensure that there was popular support for the plan:
Santa Fe's student election system ensures that only those messages deemed "appropriate" under the District's policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.... [the] student election does nothing to protect minority views but rather places the students who hold such views at the mercy of the majority.
Despite all of the above, the school district had a trump card in its attempt to continue to allow prayer at the games: attendance at the football games is not compulsory. The Court was unconvinced — they noted that some students were compelled to attend games, such as cheerleaders, band members, and members of the team itself. The Court also raised the issue of peer pressure as making attendance less than completely voluntary. Leaving all of that aside, the Court still felt the policy violated precedent: "Even if we regard every high school student's decision to attend a home football game as purely voluntary, we are nevertheless persuaded that the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship."
Cases like Good News seem like wins for religion, and cases like Lee and Santa Fe seem like losses. But the Court would probably argue that they are all wins for religious freedom, even if the practical application seems to point in different directions. The details make all the difference, and taken as a whole, the body of decisions about school prayer do follow a single line of reasoning.
Judge Roy Moore
One of the most contentious public debates about religion in government in recent years centered around Alabama judge Roy Moore. In the 1990's, Moore was elected to serve as a circuit court judge in Alabama. In 1995, Moore was sued by the ACLU and by the Alabama Freethought Association for displaying a copy of the Ten Commandments, carved from wood, in his courtroom. Both suits were dismissed by the court, but generated much public controversy. Moore used the controversy as a springboard to a campaign for a higher office. His campaign referred to him as "The Ten Commandments Judge." In 2000, he was elected Chief Justice of the Alabama Supreme Court.
After assuming office, Moore had a granite monument, depicting the Ten Commandments, installed in the rotunda of the Alabama Supreme Court building. As Chief Justice, Moore was solely responsible for decisions regarding decoration in the Supreme Court building (which also houses a law library, several other inferior courts, and administrative offices), and he did not consult with the other eight state Supreme Court justices in his decision to place the monument. The monument weighed 5300 pounds and was installed in the building on the night of July 31, 2001. The monument was paid for out of private funds. The installation procedure was filmed, and video tapes of the installation were sold by a Christian media group to raise funds for Moore's legal defense.
Several lawyers who frequented the building filed suit to have the monument removed. There was a seven-day bench trial, during which the Alabama federal district court trial judge visited the monument. At the conclusion of the trial, the judge ordered the monument's removal. Moore appealed, and the district court stayed its ruling until the appeal was processed. Moore's appeal was rejected by the U.S. Court of Appeals on July 1, 2003. In the decision against Moore, the Appeals Court found Moore's arguments unconvincing, using his own words against him when applying the Lemon Test:
Chief Justice Moore testified candidly that his purpose in placing the monument in the Judicial Building was to acknowledge the law and sovereignty of the God of the Holy Scriptures, and that it was intended to acknowledge "God's overruling power over the affairs of men." In his unveiling speech, the Chief Justice described his purpose as being to remind all who enter the building that "we must invoke the favor and guidance of Almighty God." And he said that the monument marked "the return to the knowledge of God in our land." He refused a request to give [the I Have a Dream] speech equal position and prominence because, he said, placing "a speech of any man alongside the revealed law of God would tend to diminish the very purpose of the Ten Commandments monument." Against the weight of all this evidence, Chief Justice Moore's insistence in his briefs and argument, and in part of his testimony, that the Ten Commandments as presented in his monument have a purely secular application is unconvincing.
The Court found that the monument failed two of the three prongs of the Lemon Test. Moore appealed the ruling to the Supreme Court, but the high court refused to hear the case. By the time the Supreme Court denied his appeal, the other eight justices of the Alabama Supreme Court had come out against Moore's continued fight, and Moore had been suspended from his position as Chief Justice for refusing to comply with the court's order that the monument be removed. On November 12, 2003, the monument was removed from the rotunda and placed in a room out of public view. The next day, a state ethics panel removed Moore from office for ethics violations, stemming from his refusal to comply with the Appeals Court order.
Though the Moore case never had a hearing in front of the Supreme Court, meaning that not even four of the justices were agreeable to hearing the case, the controversy continued for several months. Supporters of Moore used the issue during the state's next electoral primary in 2004. On July 20, 2004, the monument was removed from the Supreme Court building, having been purchased by a private group. American Veterans in Domestic Defense took the monument on tour throughout the South.
The Pledge of Allegiance
In 2000, Dr. Michael Newdow filed suit in United States District Court, suing the United States Congress, the President of the United States, the State of California, and the Elk Grove Unified School District. The suit was filed by Newdow on the behalf of his daughter, who was a kindergarten student in the Elk Grove District at the time. The suit alleged that the school policy that the Pledge of Allegiance by recited by students was a violation of his daughter's religious freedom because of the inclusion of the words "under God" in the Pledge. In his complaint, Newdow noted that he was an atheist and opposed to the use of the words in the Pledge. Without the words "under God," Newdow was not opposed to the Pledge.
The District Court ruled on the case on June 26, 2002. The panel of three judges split on the decision, 2-1, but found for Newdow. The public furor over the decision was swift, with people from the President to top members of Congress calling the decision "out of the mainstream" and "stupid." The District Court found that the Pledge, in its current form (the words "under God" were added in 1954), did not pass the Lemon Test:
In the context of the Pledge, the statement that the United States is a nation "under God" is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation "under God" is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase "one nation under God" in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and — since 1954 — monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God. A profession that we are a nation "under God" is identical, for Establishment Clause purposes, to a profession that we are a nation "under Jesus," a nation "under Vishnu," a nation"under Zeus," or a nation "under no god," because none of these professions can be neutral with respect to religion.
The Court ordered that the Pledge, with the words "under God" could not be recited in schools under its jurisdiction — essentially the entire western seaboard. The injunction, however, was stayed pending appeals. The first appeal was to the District Court sitting en banc, or with the entire panel of judges, rather than just three judges, but this appeal was denied. The next appeal was to the U.S. Supreme Court. The Court granted certiorari and heard the case of Elk Grove v Newdow in oral arguments on March 24, 2004.
The Supreme Court ended up ducking the question, restoring the status quo until another challenge is issued. On June 14, 2004, the Court found that Newdow did not have standing to bring the suit, meaning that he had no right to bring up the issue in the courts. The lack of standing stemmed from the facts of Newdow's family. His daughter lives with her mother — Newdow and she never married. The girl's mother did not oppose her recitation of the Pledge. Because of the ongoing custody issues, the Court ruled that Newdow was not in a legal position to speak for his daughter. Though the decision to dismiss the case had an 8-0 vote in the Court, several concurring opinions chided the rest of the Court for not offering an opinion on the question.
Newdow did not give up on his challenge of "under God" in the Pledge. Because of the standing issue, in 2009 Newdow sued the government again in his behalf and on the behalf of other parents who objected to having their children say "under God". Newdow's case was heard by the same District Court that found in his favor in 2002. On March 12, 2010, however, the court ruled against Newdow in a 2-1 decision. In a separate case decided the same day, the District Court also ruled that "In God We Trust" as printed on U.S. currency, was permissible.