Constitutional Topic: The Constitution and Religion – The U.S. Constitution Online – USConstitution.net

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
. This Topic Page concerns the Constitution and Religion. Religion
appears is especially contained in the 1st

Source material for this topic page includes Origins of the Bill of
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
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 in the original Constitution

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

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 First Amendment

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

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

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.

The Wall of Separation

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

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
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 [1878]). For details on Reynolds, see
the next section. It has been a notable metaphor for the 1st Amendment’s
non-establishment concept ever since.

Supreme Court Cases

Very early on, in Terrett v Taylor (13 US 43 [1815]), 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 [1878]), 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

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
(310 US 296 [1940]). 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 [1934]), 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 [1947]), 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
(403 US 602 [1971]), 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.

Contemporary issues

Prayer in schools

In Good News Club v Milford Central School (533 US 98 [2001]), 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
(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

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

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 [2000]), 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

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
, 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
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
, 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

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,

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.