Religion

9

RELIGION

It is widely believed that courts are essential guardians in protecting religious liberty, particularly when majority rule threatens minority religions. Yet the Court barely began to sketch out a jurisprudence of religious freedom until 1940.¹ Thus, for a century and a half, the duty of protecting religious liberties was left to the regular political process. Individuals and private organizations, in their efforts to protect the rights of conscience, turned to nonjudicial bodies and the states for relief. Instead of the Court serving as the exclusive guardian of individual rights, a powerful dialogue operates between judicial and nonjudicial bodies, with the courts often playing a secondary role. Courts can nudge society at times, but the judicial role is usually marginal rather than pivotal. Religious lobbies press their views on all three branches at the national and state level. Often they prefer to rely on Congress and state legislatures to advance their interests.

According to a leading study of church-state relations, a study of these disputes shows why it is inaccurate to state that “[i]‌t advances the cause of realism in American constitutional law to say that the Constitution is what the judges say it is.”² Even a casual review of American history reveals the inadequacy of that position. Instead of promoting realism, such statements advance the cause of illusion and deception.

The Religious Lobby

Individuals and private groups feel strongly about the rights of conscience and religious liberty. Rather than defer blindly to the judgments of courts, legislatures, administrative bodies, or experts, religious interests are not shy about testifying before legislative bodies and using other lobbying techniques, including litigation, to press their views. Religious organizations have participated in many volatile and emotionally charged issues in America, including military service, slavery, abortion, the Equal Rights Amendment, school prayer, and aid to parochial schools.³

In requiring citizens to serve in the militia, colonies and early state governments made exceptions for individuals who had religious objections. Massachusetts in 1661, Rhode Island in 1673, and Pennsylvania in 1757 passed legislation to allow conscientious objectors to perform noncombatant service.⁴ On July 18, 1775, the Continental Congress created a militia while recognizing that some people, for religious reasons, could not and should not bear arms.⁵ After the Declaration of Independence, a number of state constitutions included language to protect the religious rights of conscientious objectors.⁶ All of these accommodations to religious minorities were done through the regular political process outside the courts.

Congress did not rely on conscription during the American Revolution, the War of 1812, or the Mexican War. The country depended on volunteers and state militia to do the fighting. The first national effort to draft soldiers came with the Civil War, when members of Congress debated language to excuse from military service persons who, from “scruples of conscience,” were averse to bearing arms.⁷ The Society of Friends (Quakers) led the way for statutory language that exempted certain conscientious objectors of “religious denominations” from combat service.⁸ This protection for religious minorities did not come from the courts. Quakers and other religious groups turned instinctively to the President, executive officers, and members of Congress for relief.

Pressure mounted to recognize conscientious objection not merely for Quakers, Mennonites, and other established religions but also for those who did not belong to those sects or any sect. Louis Fraina, convicted of conspiring to commit an offense against the United States by aiding and abetting others to evade military service during World War I, emphasized that conscientious objection related not to church membership but to individual conscience.⁹ Quakers, agreeing with that position, lobbied Congress for a change in the statutory exemption. Instead of requiring conscientious objectors to belong to a “well-recognized religious sect,” they insisted that consideration be “on the basis of conscience rather than on the basis of membership.”¹⁰ Under this pressure from religious groups, Congress changed the exemption in 1940 to cover individuals who, “by reason of religious training and belief,” were “conscientiously opposed to participation in war in any form.”¹¹

Another example of successful religious lobbying for broader statutory language and legislative practice comes from the Civil War period. Prior to February 1, 1860, only Christians were selected to offer prayers in Congress. The House of Representatives changed that practice by inviting Dr. Morris J. Raphall of Congregation B’nai Jeshurun of New York City to give the first Jewish prayer.¹² Prayers are now routinely offered by Christians, Jews, Moslems, American Indians, and other religious groups.

Until the Civil War, only Protestants were chosen to serve as military chaplains. Regiments that were largely Jewish wanted someone from their own faith. President Abraham Lincoln and members of Congress recognized that the statutory language limiting military chaplains to ordained ministers from a “Christian denomination” was improper.¹³ With Rabbi Arnold Fischel’s personal lobbying, the statutory language “Christian denomination” was changed to “some religious denomination.”¹⁴

Churches played a profound role in the fight against slavery. The first printed protest against slavery in America came from a Quaker publication in 1688.¹⁵ George Keith, a Quaker, issued a broadside against slavery in 1693.¹⁶ Quakers expelled slave-owning Friends in 1776.¹⁷ In 1789, the General Committee of Virginia Baptists passed a resolution condemning slavery, and in 1800, the Methodist Conference called for the gradual emancipation of slaves.¹⁸ In 1854, when the Kansas-Nebraska bill threatened to spread slavery into the territories, 3,050 clergymen forwarded a protest to the U.S. Senate. A year later, from his position as minister of the Plymouth Church in Brooklyn, Henry Ward Beecher spoke out against the evils of slavery.¹⁹

Issues of religion and morality provoke people and groups to vigorously advocate their legal and constitutional positions. The Court accepts the legitimacy of lobbying by church groups: “Of course, churches as much as secular bodies and private citizens have that right.”²⁰ The intensity of church lobbying, on all three branches, has increased dramatically. In 1950, there were approximately 16 major religious lobbies in Washington, D.C.: 10 Protestant, 2 Catholic, and 4 interdenominational.²¹ By 1985, that number had climbed to “at least eighty and the list is growing.”²² A 1994 compilation of U.S. religious interest groups lists 120 organizations.²³ By 2012, there were more than 200 organizations engaged in religious lobbying.²⁴

These groups often coalesce to form a strikingly powerful political force, savvy and experienced in the ways of directing legislative, executive, and judicial agendas. Religious groups were part of the successful effort to enact the Civil Rights Act of 1964²⁵ and the Elementary and Secondary Education Act of 1965, which provided federal funds to both public and private schools.²⁶ The constitutional issue of church-state separation was surmounted by arguing that the funds would benefit children, not any religious schools.

The growth in sophisticated lobbying by religious groups is reflected in amicus curiae filings with the Supreme Court. Religious groups successful in the legislative and executive arenas “realize that they must be participants in every major playing field, including the courts, if they are ever to count in America.”²⁷ During the period from 1928 to 1940, amicus briefs were prepared for 14.3 percent of the church-state cases. Today, amicus briefs are routinely filed in religion disputes. From 1986 to 1992, the participation rate is 100 percent, and that pattern continues.²⁸

Religious organizations often oppose Court rulings and help enact legislation that codifies their disapproval of judicial decisions. Religious interests, for example, spearheaded the movement to nullify Roe v. Wade. Religious concerns animate most anti-abortion groups, including the National Right to Life Committee and the Christian Coalition. In the four decades since Roe, state and federal lawmakers have worked closely with these groups, enacting hundreds of abortion-related restrictions.²⁹

Religious groups also mobilize their strength to defend Court decisions. In 1962, the Court held that a New York “Regents’ Prayer” was unconstitutional because government should not compose an official prayer for minors in public schools.³⁰ The public outcry created pressure for a constitutional amendment to nullify the Court’s ruling, but that movement stalled when congressional hearings revealed broad support by Protestant and Jewish organizations for the decision.³¹

Among religious groups, there has been a shift in attitudes about seeking relief in the courts for constitutional injuries. Battles over church-state relations in America, “historically the domain of the court, have moved in recent years to the Congress.”³² Instead of the “minoritarian politics” of the courts, religious groups engage in “the majoritarian or consensus-seeking politics of the Congress.”³³

Compulsory Flag Salute

In 1940 and 1943, the Supreme Court decided whether states could impose a compulsory flag salute on organizations that cited religious grounds in opposition. The first decision upheld the salute; the second struck it down.³⁴ The opinion by Justice Jackson in 1943 is celebrated for its eloquent defense of religious minorities, but the primary safeguard for constitutional rights belongs to the individuals and associations who denounced the 1940 ruling and refused to accept it as national policy.

A number of states in the 1930s passed legislation that compelled school children to salute the flag. The Jehovah’s Witnesses, relying on a literal interpretation of the Bible, believed that saluting a secular symbol violated their religious beliefs.³⁵ The compulsory flag salute survived a number of early test cases, but in 1937, a federal district judge in Pennsylvania found this type of statute unconstitutional. Taking note of the religious intolerance that was “again rearing its ugly head in other parts of the world,” as in Nazi Germany, he regarded it as “of the utmost importance that the liberties guaranteed to our citizens by the fundamental law be preserved from all encroachment.”³⁶

After this decision was upheld on appeal, the Supreme Court agreed to hear the case, Minersville School District v. Gobitis. In their brief, the plaintiffs pointed out that the “form of salute is very much like that of the Nazi regime in Germany.”³⁷ Yet instead of understanding the need for religious diversity and individual rights, many Americans turned with venom against minority sects. As the German army raced across Europe in the spring of 1940, American communities feared “Fifth Column” activities. On May 23, a mob in Del Rio, Texas, attacked three Witnesses thought to be Nazi agents. On June 2, the Gallup Poll reported that 65 percent of the people believed that Germany would attack the United States.³⁸ In the midst of this emotional frenzy, the Court upheld the compulsory flag salute.

The Court seemed to give little thought to the political impact of their ruling. Studies on the behavior of the Justices in conference describe the flag salute decision as a “case study in judicial misperceptions and breakdown in communication.”³⁹ Writing for an 8 to 1 majority, Justice Felix Frankfurter leaned heavily on two premises: liberty requires unifying sentiments, and national unity promotes national security. Although the Witnesses urged the Court to embrace religious pluralism, Frankfurter advised them to present their case “in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena.”⁴⁰ His decision was excoriated by law journals, the press, and religious organizations. Thirty-one of 39 law reviews that discussed the decision did so critically. Newspapers accused the Court of violating constitutional rights and buckling under popular hysteria.⁴¹

In at least 31 states, school authorities took legal steps against non-saluting Witnesses.⁴² Worse still, Frankfurter’s decision was followed by a tidal wave of violence against Witnesses across the country. Within two weeks of the decision, hundreds of attacks were reported to the Justice Department. “In the two years following the decision,” according to Justice Department officials, “an uninterrupted record of violence and persecution [persisted]. … Almost without exception, the flag and the flag salute can be found as the percussion cap that sets off these acts.”⁴³

Justices Black, Douglas, and Murphy decided to bolt from Frankfurter’s 8 to 1 majority. A few months after the decision, Douglas told Frankfurter that Black was having second thoughts. Sarcastically, Frankfurter asked whether Black had spent the summer reading the Constitution. “No,” Douglas replied, “he has been reading the papers.”⁴⁴

Some state courts also found Frankfurter’s opinion unacceptable. Children of Jehovah’s Witnesses in New Hampshire were suspended from public school because they refused to salute the American flag. By so acting, they were judged delinquent, taken from their family, and placed in a state industrial school. In 1941, the Supreme Court of New Hampshire deplored the breaking up of a family for “no more than the conscientious acts of the children, based upon the religious teachings of their parents.”⁴⁵ It urged legislative and administrative authorities to seek an accommodation that would not violate the religious scruples of the students. Similar decisions came from the Supreme Court of New Jersey and the Supreme Court of Kansas in 1942.⁴⁶

This nationwide debate had a profound impact on the U.S. Supreme Court. In a 1942 decision, Justices Black, Douglas, and Murphy announced that Gobitis had been “wrongly decided.”⁴⁷ Frankfurter bitterly remarked that his opinion was “okayed by those great libertarians until they heard from the people.”⁴⁸ Deserted by his three colleagues, Frankfurter clung to a bare 5 to 4 majority. The margin was even shakier because two members of the Gobitis majority were replaced by Robert H. Jackson in 1941 and Wiley Rutledge in 1943. Opinions by Rutledge while serving on the D.C. Circuit suggested he would likely vote to overturn Gobitis.⁴⁹

Legislation that Congress passed in 1942, to codify existing rules and customs for the display and use of the American flag, also shook the foundations of Gobitis. Language in the bill indicated a preference for avoiding rigidly enforced flag salutes. After stating that in pledging allegiance to the flag a citizen would extend the right hand, palm upward, toward the flag, the statute further provided: “However, civilians will always show full respect to the flag when the pledge is given by merely standing at attention, men removing the headdress.”⁵⁰ The Justice Department interpreted this statute to undercut a compulsory flag salute because Jehovah’s Witnesses were willing to stand at attention during the flag salute exercise.⁵¹ The Justice Department instructed U.S. Attorneys to advise local authorities of the more flexible standard adopted by Congress.⁵²

When the flag-salute issue returned to the Supreme Court, this time involving a West Virginia case, a brief by the ACLU noted that Congress had entered the field by passing legislation. Of “great importance,” said the brief, “is the fact that Congress did not deem it wise, or see fit, to impose any penalties for failure to salute the flag.”⁵³ During oral argument, counsel for the expelled students offered this remark about Gobitis: “[T]‌here cannot be found in the law a more unstatesmanlike decision, except possibly the Dred Scott decision.”⁵⁴

The Supreme Court overruled Gobitis in 1943, almost three years to the date that it was announced. Writing for a 6 to 3 majority, Justice Robert Jackson condemned efforts to coerce uniformity and reminded the nation that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”⁵⁵ While Jackson’s defense of religious freedom and the Bill of Rights was powerful and moving, credit for the liberalized decision belongs to those who refused to accept the Court’s 1940 pronouncements on the meaning of the Constitution, minority rights, and religious liberty.

School Prayer

In response to the 1962 Supreme Court’s school prayer decision, Engel v. Vitale, members of Congress retaliated with constitutional amendments to overturn the Court, offered proposals to remove its jurisdiction to hear such cases, and drafted other restrictive measures. However, with most religious denominations lining up behind the Court, all of these court-curbing efforts failed.

The decision has been widely misinterpreted. The Court did not speak against prayer. It spoke against governmental efforts to draft an official prayer to be said by students who are compelled to attend school. During oral argument, the attorney for the plaintiffs opposing the Regents’ Prayer strongly endorsed religion and prayer. He told the Justices: “I come here not as an antagonist of religion; … my clients are deeply religious people; … I say prayer is good. My clients say prayer is good.”⁵⁶ Writing for the majority, Hugo Black took care to place religion in a positive light. Noting that “[t]‌he history of man is inseparable from the history of religion,” he explained that prayer is a “purely religious function [that should be left] to the people themselves and to those the people who choose to look to for religious guidance.”⁵⁷

Members of Congress heaped scorn on the decision. Senator Sam J. Ervin, Jr. (D-N.C.) announced that the Court “has held that God is unconstitutional.” Thomas Abernathy (D-Miss.) urged legislative action against the Court “to calm the power grab of these power-drunken men.” Mendel Rivers (D-S.C.) railed against “this bold, malicious, atheistic and sacrilegious twist of this unpredictable group of uncontrolled despots.”⁵⁸ George William Andrews (D-Ala.) touched all the bases of the conservative community: “They put the Negroes in to the schools and now they have driven God out of them.”⁵⁹

Although President Kennedy implored those who disagreed with the ruling “to maintain our constitutional principle” and “support the Supreme Court decisions even when we may not agree with them,”⁶⁰ pressure mounted for a constitutional amendment to permit school prayer. One month after the Court’s decision, the Senate Judiciary Committee held two days of hearings to explore the issue of prayers in public schools. The hearings allowed critics of the decision to fulminate and voice their disgust, but no steps were taken to challenge the Court.⁶¹

When the House Judiciary Committee finally held hearings in 1964 on a constitutional amendment to reverse the Court, most of the religious organizations testified in favor of the school prayer decision. Protestant and Jewish groups generally opposed the amendment; Catholic leaders were divided.⁶² Dr. Edwin H. Tuller, speaking on behalf of the National Council of Churches (representing about 40 million Americans), told the committee that public institutions belong to all citizens, “whatever their religious beliefs or lack of them,” and that it was not right for a majority to impose religious practices on the minority in public institutions.⁶³

Over the next three decades, several hundred constitutional amendments were introduced to permit school prayer; none of them succeeded.⁶⁴ Notwithstanding the rhetoric of those who wanted to put “God back in the classroom,” these amendments never disturbed Engel’s fundamental principle that government should not compose school prayers and force students to recite them. For example, the Republican Platform in 1964 offered constitutional language to permit individuals and groups “who choose to do so to exercise their religion freely in public places, provided religious exercises are not prepared or prescribed by the state or political subdivision thereof and no person’s participation therein is coerced, thus preserving the traditional separation of church and state.”⁶⁵

In his 1980 presidential campaign, Ronald Reagan embraced school prayer, creationism, and tax breaks for religious schools. Through his appointments power, he sought to transform Supreme Court decision-making. Before the Supreme Court, Reagan Solicitor General Rex Lee called for the Court to “reapprais[e]‌” its precedents and “take a fresh look” at school prayer.⁶⁶

Reagan made several bully pulpit speeches to religious conservatives and embraced a school prayer amendment. In 1982, remarking that “God should [never] have been expelled from the classroom,” he proposed this constitutional amendment: “Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer.”⁶⁷ This language did not repudiate Engel. Instead, it embraced its guiding principle.

Unlike earlier amendment proposals (only one of which, in 1971, had reached the floor for a vote), the Reagan proposal prompted Congress to act. By a vote of 14 to 3, the Senate Judiciary Committee adopted a silent prayer amendment. Speaking of the need to “provide a formal, structured opportunity during the school-day when each student can silently speak to his creator,” the committee concluded that an “amendment is necessary to restore the historic meaning of the first amendment, abruptly altered by the Court’s [school prayer] decision.” ⁶⁸ But when the Senate voted on this measure in March 1984, it fell 11 votes short of the two-thirds needed.

Continued disagreement among religious interests partly explains the amendment’s defeat. To counter lobbying by the Religious Right, a joint letter of opposition was submitted by a coalition of religious organizations, including: American Baptist Churches, American Jewish Congress, Seventh-Day Adventists, Lutheran Church in America, Presbyterian Church in the USA, United Church of Christ, United Methodist Church, and United Presbyterian Church.⁶⁹ Fearing a backlash from voters who thought the Senate’s legislative work should focus on a skyrocketing deficit, not prayer, 18 Republican Senators broke ranks with the President and voted against the amendment.⁷⁰

After this vote in 1984, only one other prayer amendment proposal reached the floor for consideration. In June 1998, the House of Representatives rejected a prayer amendment by a vote of 224 to 203, or 61 votes short. Congress also dismissed efforts to strip the federal courts of jurisdiction in school prayer cases. Starting in 1974 and ending in 1988, Congress debated the merits of the “Helms Amendment,” which would have returned state-sponsored prayer to the public schools by denying jurisdiction to the Supreme Court and lower federal courts in “any case arising out of any … State statute, ordinance, rule, or regulation, which relates to voluntary prayers in public schools and public buildings.”⁷¹ To Attorney General-designee Edwin Meese, the Helms amendment undermined a core judicial function and therefore was constitutionally suspect.⁷²

Congress’s rejection of absolutist measures, like court-stripping and constitutional amendment, hardly signifies legislative acquiescence to the school prayer issue. In 1984, Congress responded to that issue by passing an “Equal Access” bill. Building on a Supreme Court decision in 1981 that upheld the right of student religious groups to have access to university buildings for their meetings, Congress gave students in public high schools the same right. The law prohibited any public secondary school receiving federal funds from denying equal access to students who wish to conduct a meeting devoted to religious objectives. Such meetings are to be voluntary, student-initiated, and without school sponsorship.

Sometimes referred to as the “son of school prayer,” Congress enacted the Equal Access Act in response to perceived “state hostility toward religion.”⁷³ For Jerry Falwell: “We knew we couldn’t win on school prayer but equal access gets us what we wanted all along.”⁷⁴ As sponsor Jeremiah Denton observed, because of court rulings “there was a sealed door to keep any practice of religion out of the schools. Now that seal has been broken. This is not a foot in the door; this is an epic change.”⁷⁵ The Supreme Court upheld equal access in 1990. The Justices recognized that so long as religious and secular groups had access to public school facilities, Congress had every right to conclude “that religious speech in particular was valuable and worthy of protection.”⁷⁶

Over the years, local community compliance with the 1962 school prayer decision has varied. Several studies at the end of the 1960s revealed that the Court’s ruling had reduced the amount of school-sponsored prayer in public schools but had not eliminated it. Outright defiance was commonplace.⁷⁷ More than two decades after the Court’s decision, some students in public schools were still beginning each day with a prayer.⁷⁸ School superintendents and teachers could safely ignore the Court’s decision in many areas because local prosecutors, raised nearby, were unlikely to use their scarce resources to force compliance with an unpopular decision.

State lawmakers too have sought to blunt the force of the 1962 ruling. More than 20 states, for example, encouraged religious exercise in the public schools by enacting “moment of silence” statutes.⁷⁹ A number of states, moreover, enacted voluntary prayer laws despite the fact that these statutes have always been declared unconstitutional.⁸⁰ States, finally, have filed amicus curiae briefs defending these and other laws. For example, in a 1985 case, attorneys general from Arizona, Delaware, Indiana, Louisiana, Oklahoma, and Virginia filed an amicus curiae brief in support of moment of silence laws, but the Court struck down the law at issue in Wallace v. Jaffree.⁸¹

Much has changed since 1962. Because of the Equal Access Act and other initiatives, there are many opportunities for students to pray and study religion in public schools. In 1995, in an effort to take some of the steam out of a proposed school prayer amendment, President Bill Clinton issued a memorandum to clarify the rights of public school children to religious expression. He said that nothing in the First Amendment “converts our public schools into religion-free zones, or requires all religious expression to be left behind at the schoolhouse door.” Students have the right to engage in individual or group prayer and religious discussion during the school day. They may “read their Bibles or other scriptures, say grace before meals, and pray before tests to the same extent that they may engage in comparable non-disruptive activities.” In informal settings, such as cafeterias and hallways, students may pray and discuss their religious views. They may attempt to persuade their peers about religious topics. They may participate in before and after school events with religious content.⁸² Studies indicate that students in public schools are active in prayer clubs and other religious activities.⁸³

The school prayer wars, like abortion, underscore the dynamic nature of constitutional decision-making. While the Court has held steadfast to its 1962 decision, state and federal resistance to that decision has made possible some types of religious practice in the public schools. Moreover, nonacquiescence to the 1962 decision contributed to the appointment of Supreme Court Justices more accepting of state support of religious practices. As a result, although the Court may not revisit its school prayer decision, states now have greater freedom to acknowledge religion than any time in the past half-century.