This week we asked writers for their favorite paper from this year, and our Writer of the Week is
Samuel Croak ’22
About him: “Hi, my name is Sam Croak. I am a junior majoring in Political Science and Economics here at Carthage. My concentration in Political Science is in Public Law/Judicial Politics and I plan on one day becoming a corporate lawyer. I live in a small town called Crete, Illinois.
My primary interests include video games and listening to music. I am or was a part of several extracurricular activities or organizations, such as Phi Alpha Delta Pre-Law Fraternity, Carthage Pep Band, and Mock Trial. I participated in the SURE program during the summer of 2020, researching the legal-economic implications of racial discrimination in the area of public accommodations and its redress through Title II of the 1964 Civil Rights Act. You can most likely find me in Hedberg Library.”
His paper analyzes the Establishment Clause of the US Constitution and how it has been interpreted throughout history. Our fellows agreed that it was very well-written with a strong argument and support.
Ashley G: “The argument is developed and supported very well, and the writing is strong from a mechanical standpoint.”
Jackie: “It is technically well-written, and the ideas are well-supported.”
Samuel said of his paper, “This paper, written as an essay prompt for Law & Society with Professor Thomas Powers, concerns the Supreme Court’s Establishment Clause jurisprudence and assesses whether or not said cases are beholden to some set of neutral legal principles or standards or are merely political in nature, using three specific Court cases (Everson v. Board of Education, Engel v. Vitale, and Marsh v. Chambers) to illustrate my argument. Throughout the course of the paper, I come to argue that general ambiguities regarding the original intent of the U.S. Constitution’s framers behind the drafting of the Establishment Clause has led to its interpretation by the Court remaining “scattershot”. Judicial decisions rendered on the subject, therefore, are more the result of private interest pressures on the Court and the morality of the individual justices involved rather than an attempt to abide by any coherent judicial doctrine.
In many ways, this paper builds on previous work I have done in Constitutional Law II in interpreting the Establishment Clause. I feel this topic is important since it not only represents a continual and vehement struggle between religious and secular groups in American society but also brings up larger questions about the role of religion in governmental institutions and vice versa. I am proud of this paper not only because of its cohesiveness and clarity but also because of both my in-depth analysis of the assigned cases themselves as well as my broader examination of the competing private interests and ideological battles in this area of Constitutional Law.”
The First Amendment of the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Establishment Clause, the first half of the Constitution’s Religion Clauses alongside the Free Exercise Clause, was then subsequently held to apply to the states in Everson v. Board of Education, 330 U.S. [PDF, 146] (1947). In Everson, the Supreme Court, while upholding a New Jersey law that allowed for the reimbursement of transportation expenses to private religious schools via government tax dollars, delivered an emphatic interpretation of the Establishment Clause and the limitations it places on government dealings with religion:
The “establishment of religion” clause… 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 profess a belief or disbelief in any religion (my emphasis)… In the words of [Thomas] Jefferson, the clause against establishment of religion by law was intended to erect a “wall of separation between Church and State (Everson at [PDF, 148]).
Writing for the majority, Justice Black based his argument, known as the neutrality doctrine, upon the history of colonial America, particularly the religious persecution in Great Britain that its early settlers were attempting to escape from (147). The sentiment among the American colonialists against state support of religion, in the form of taxation and censorship of minority religions, reached a fever-pitch, according to Black, when James Madison, in his “Memorial and Remonstrance,” and Jefferson, in his “Letter to the Danbury Association,” campaigned against the renewal of a Virginia tax levy “for the support of an established church.” (Ibid.) Despite disagreement between the justices on the ruling reached here (the dissenters took even stronger separationist positions on the law [See Justice Jackson and Rutledge at PDF, 149-150]), all of them to a certain extent agreed with Black’ interpretation that the Founding Fathers intended for religion to be entirely severed from the legislative body of government (See also 152). The interpretation of “original intent” set forth in Everson is therefore key in understanding the court’s subsequent rulings in Engel v. Vitale, 370 U.S. 421 (1962) and Marsh v. Chambers, 463 U.S. 783 (1983).
In Engel, the Supreme Court held that a government-composed prayer being read in a public school, specifically the New York State Board of Regents’ prayer (hereafter “Regents’ prayer”), is an unconstitutional violation of the Establishment Clause. Justice Black, like in Everson, again grounded the decision the historical context of colonial America, comparing the Regents’ prayer to the Book of Common Prayer dictating religious practice in Britain in that the authorities behind both pieces “set out in minute detail the accepted form and content of prayer” to be performed by true and non-believers alike (in this case, both religious and non-religious students) (Engel v. Vitale, 370 U.S. [PDF, 2] (1962)). However, despite the fact that the colonists perceived the danger of state-established religions, Black notes that by the time of the Revolutionary War, 12 out of the 13 original colonies had either an established church or religion (Ibid.). The eventual adoption of the First Amendment, as well the application of it to the states via the 14th Amendment, must therefore be considered as a mode of redress against these aforementioned dangers and to have left “government in this country… without power to prescribe any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity” (Engel at [PDF, 3]).
In response to the school’s argument that the prayer was not composed with intent to forward any particular denominational beliefs and that students were not forced to participate in the recitation of the prayer, Justice Black states that neither qualification is enough to save the prayer from constitutional invalidity as the Establishment Clause does not require a showing of coercion on the government’s part (Engel at 3]). However, that does not mean that he believes such coercion is not operative on the student in spite of the voluntary nature of the prayer: “When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain” (Ibid.). Moreover, Black’s majority opinion for the Court seems to rest on a strongly separationist view of the original intent behind the Establishment Clause: “Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion.”
Although Black’s majority opinion rested not on judicial tests like the neutrality or coercion test but rather on an attempt to define the original intent of the founders, Justice Douglas, in a concurring opinion, relied on Everson’s neutrality principle to reach the same verdict, arguing that “[t]he First Amendment teaches a government neutral in the field of religion better serves all religious interests” (Engel at [PDF, 4]). Justice Stewart, the lone dissenter, breaks with Douglas’ argument and charges the Court with misapplying “a great constitutional principle” (Ibid.). Arguing that the Establishment Clause only prevents states from establishing an official state church, he claims the Court has given false credence to the term “‘wall of separation,’ a term nowhere to be found in the Constitution” and that the Regents’ prayer simply presents “the opportunity of sharing in the spiritual heritage of our Nation” to religious students. The argument put forward by Stewart seems more nakedly political when compared to Justice Black’s and Douglas’ arguments, which at least try to find some constitutional or legal basis for their decisions. It posits not only that the “spiritual heritage” and “religious traditions of our people” of which Stewart speaks has not conflicted with the Establishment Clause since its passage (upon seemingly the justification that said spiritual heritage has not been widely judicially challenged before and has been commonly practiced, which I feel is insufficient since practices like slavery and racial discrimination, which were also longstanding, have since been repudiated, both in the passage of the post-Civil War Amendments and statutes by Congress since), but also seems to imply that such tradition and heritage should be participated in (Engel at 4; See also 5- “deeply entrenched and highly cherished spiritual traditions”).
Marsh v. Chambers, 463 U.S. 783 (1983) provides an alternative interpretation of original intent more in line with Justice Stewart’s dissent in Engel, albeit with less emphasis on the merits of the religious practice in question: the hiring of a chaplain to conduct prayer at the beginning of Nebraska Legislature sessions. Chief Justice Burger, in upholding the practice under challenge by the Establishment Clause, relies on the historical fact that the Continental Congress, in 1774, “adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain” and, in 1789, the First Congress also officially adopted the same practice (April 7-25) while in the same year passing a statute that provided payments for said chaplains (September 22) (Marsh at [PDF, 1]). 3 days after the previously mentioned statute was authorized (Sept. 25), Burger points out, “final agreement was reached on the language of the Bill of Rights.” (Ibid.) Burger’s opinion therefore logically follows the argument that because Congress had just adopted the practice of having governmentally-paid chaplains lead opening prayers to legislative sessions prior to adopting the First Amendment, they naturally did not intend the practice they had just permitted to be invalidated by the Amendment itself (See Marsh at 2- “their actions reveal their intent”). While Burger’s decision strays somewhat from Stewart’s in Engel by stating that “historical patterns cannot justify contemporary violations of constitutional guarantees,” he characterizes the practice of hiring chaplains as “simply a tolerable acknowledgement of beliefs widely held among the people of this country” (Ibid.).
Justice Brennan, joined with Marshall in dissenting, not only shows that the majority has abandoned the Lemon test (formulated in Lemon v. Kurtzman, 403 U.S. 602 (1971)) in its decision, which Brennan demonstrates the practice here contested would obviously fail to pass constitutional muster under the test, but also argues that the Court has misinterpreted the intentions of those who drafted (or were influential in drafting) the Establishment Clause (Marsh at [PDF, 2-3]). One such example Brennan points to is James Madison, who, “writing subsequent to his own Presidency,” addressed just this issue: “Is the appointment of Chaplain to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness, the answer on both points must be in the negative” (Madison as quoted in Marsh v. Chambers at [PDF, 3]).
Thus, despite approaching a method of adjudication resembling Living Constitutionalism rather than Originalism (See Marsh at 4- “the Constitution is not a static document whose meaning on every detail is fixed…”), Brennan’s opinion highlights the difficulties in relying on original intent alone to determine the meaning of the Establishment Clause. Both Black’s opinions in Everson and Engel on one side and Burger’s in Marsh run into the same conundrum: Which views of the drafters of the Establishment Clause on the relationship between government and religion should the Court follow in interpreting said Clause? Additionally, should said views that were instilled the Clause matter more than the reality of government-religion relationships as practiced both leading up to its ratification and after?
For the former, it must be remembered that Thomas Jefferson and James Madison are not the only people whose views contributed meaning to the Clause and that their opposition to the Anglican Church in Virginia “marked them out as taking a progressive if not radical stand.” (Powers 2010, 256-257). Furthermore, despite Brennan’s contention in Marsh (at [PDF, 4]) that reliance on the practices of legislators is “questionable” because they may be “influenced by the passions and exigencies of the moment” and therefore “do not always pass sober constitutional judgement on every piece of legislation they enact,” it may be confidently suggested that there were drafters of the Establishment Clause (most likely even a majority) who genuinely believed that it only prevented the establishment of a official governmental religion, and just by Congress at that.
On that note, as to the latter inquiry, it must also be remembered that the early history of the U.S. was accompanied by “the existence of established churches in several of the states at the time the First Amendment was ratified” and that Jefferson and Madison “combined their secularism with accommodation,” resisting some pressure to perform religious acts as politicians while acting religiously in other ways (Powers 2010, 257-258). It may therefore be said that “the approach of the Founders [on religious accommodation] is flexible and not typically doctrinaire,” allowing for both separationists and accommodationist to make plausible arguments in both directions on original intent (Powers at 258).
As for the role of politics in the constitutional interpretation of the Establishment Clause, it is clear there is evident class/interest group pressure on the Supreme Court’s decisions on this matter. Pollak (1963, 16) states that in handing down their decision in Engel, the Justices of the Supreme Court…
…surely knew that in entering the lists against officially sponsored professions of religious faith they were pitting the Court’s authority against a vastly powerful adversary - an adversary which commands strong and widespread popular support… and which is championed by potent interest groups.
Yet, to state that the Court’s Establishment Clause jurisprudence simply takes consists of two blocs, one which votes in favor of religious majorities active participation in public/governmental spaces (accommodationist conservatives) and one that votes against it (liberal separationists), undermines the breadth of the issue at hand.
The general argument made in favor of public-school prayer is made by Justice Stewart in School Dist. v. Schempp, 374 U.S. 203 (1963), who argues that, for children who cannot attend private religious schools, their ability to freely practice their religious beliefs is stifled if the school does not provide time within school hours for individual or group prayer (See Pollak 1963, 76-77). It is thus this sympathy to the professed needs of the religious students of public schools that manifests in accommodationist justices like Stewart, who argued that “if a prayer program is demonstrably necessary to protect the religious freedom of some public schoolchildren as well as modern contemporaries,” such a program is “constitutionally compelled” (Pollak at 77), as well as modern justices (i.e. Rehnquist, Alito, Kavanaugh,…) whose legal stance appeals “to the basic ideal of the Free Exercise clause on behalf of the Christian majority against the strict separationist interpretation of the Establishment Clause.” (Powers 2010, 247; See also Pollack at 77) On the flip side, the separationist justices seem to emphasize moral arguments not only of the inherent danger between the union of church and state but also of, in regards to education (both in aid to private schools and prayer in public schools), religious indoctrination and coercion of non-religious and religious minority students in their interpretations of the Establishment Clause (See Justice Black in Engel at [PDF, 3] and Powers at 250).
In summary, the inability to ascertain the “original intent” behind the Establishment Clause, due in part because of the diverse interests that played a part in its drafting and the dichotomy between the Clause itself and the widespread presence of state-established religions years after its passage, has led to its interpretation by the Supreme Court remaining scattershot over the years. Such interpretation, upon further examination, may therefore be in-fact influenced more by the appeasement of certain religious or non-religious/minority-religious interests and the morality of the individual justices involved rather than the attempt to find a concrete legal doctrine to adjudicate such cases with.
Engel v. Vitale, 370 U.S. 421 (1962).
Everson v. Board of Education, 330 U.S. 1 (1947).
Marsh v. Chambers, 463 U.S. 783 (1983).
Pollak, Louis H. “Foreword: Public Prayers in Public Schools.” Harvard Law Review 77,
- 1 (November 1963): 62-78.
Powers, Thomas. “Unsettling Faith: The Radicalization of the First Amendment and its Consequences.” In Civil Religion in Political Thought: Its Perennial Questions and Enduring Relevance in North America, edited by Ronald Weed and John von Heyking, 236-261. Washington D.C.: Catholic University of America Press, 2010.