kitchen table math, the sequel

Justice Rehnquist cites Cardozo in his Dissent in Wallace v. Jaffree:

Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.
- Benjamin Cardozo 1926

and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

from Justice Burger's dissent in Wallace vs. Jaffree

Some who trouble to read the opinions in these cases will find it ironic-perhaps even bizarre-that on the very day we heard arguments in the cases, the Court's session opened with an invocation for Divine protection. Across the park a few hundred yards away, the House of Representatives and the Senate regularly open each session with a prayer. These legislative prayers are not just one minute in duration, but are extended, thoughtful invocations and prayers for Divine guidance. They are given, as they have been since 1789, by clergy appointed as official chaplains and paid from the Treasury of the United States. Congress has also provided chapels in the Capitol, at public expense, where Members and others may pause for prayer, meditation--or a moment of silence.

[snip]

I make several points about today's curious holding.

(a) It makes no sense to say that Alabama has "endorsed prayer" by merely enacting a new statute "to specify expressly that voluntary prayer is one of the authorized activities during a moment of silence," ante, at 77 (O'CONNOR, J., concurring in judgment) (emphasis added). To suggest that a moment-of-silence statute that includes the word "prayer" unconstitutionally endorses religion, while one that simply provides for a moment of silence does not, manifests not neutrality but hostility toward religion. For decades our opinions have stated that hostility toward any religion or toward all religions is as much forbidden by the Constitution as is an official establishment of religion. The Alabama Legislature has no more "endorsed" religion than a state or the Congress does when it provides for legislative chaplains, or than this Court does when it opens each session with an invocation to God. Today's decision recalls the observations of Justice Goldberg:

"[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive dedication to the secular and a passive, or even active, hostility to the religious. Such results are not only not compelled by the Constitution, but, it seems to me, are prohibited by it." Abington School District v. Schempp, 374 U. S. 203, 306 (1963) (concurring opinion).

[snip]

(c) The Court's extended treatment of the "test" of Lemon v. Kurtzman, 403 U. S. 602 (1971), suggests a naive preoccupation with an easy, bright-line approach for addressing constitutional issues. We have repeatedly cautioned that Lemon did not establish a rigid caliper capable of resolving every Establishment Clause issue, but that it sought only to provide "signposts." "In each [Establishment Clause] case, the inquiry calls for line-drawing; no fixed, per se rule can be framed." Lynch v. Donnelly, 465 U. S. 668, 678 (1984)....In any event, our responsibility is not to apply tidy formulas by rote; our duty is to determine whether the statute or practice at issue is a step toward establishing a state religion.

Given today's decision, however, perhaps it is understandable that the opinions in support of the judgment all but ignore the Establishment Clause itself and the concerns that underlie it.

(d) The notion that the Alabama statute is a step toward creating an established church borders on, if it does not trespass into, the ridiculous. The statute does not remotely threaten religious liberty; it affirmatively furthers the values of religious freedom and tolerance that the Establishment Clause was designed to protect. Without pressuring those who do not wish to pray, the statute simply creates an opportunity to think, to plan, or to pray if one wishes--as Congress does by providing chaplains and chapels.

[snip]

If the government may not accommodate religious needs when it does so in a wholly neutral and noncoercive manner, the "benevolent neutrality" that we have long considered the correct constitutional standard will quickly translate into the "callous indifference" that the Court has consistently held the Establishment Clause does not require. The Court today has ignored the wise admonition of Justice Goldberg that "the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow." Abington School District v. Schempp, 374 U. S., at 308 (concurring opinion). The innocuous statute that the Court strikes down does not even rise to the level of "mere shadow." JUSTICE O'CONNOR paradoxically acknowledges: "It is difficult to discern a serious threat to religious liberty from a room of silent, thoughtful schoolchildren." Ante, at 73. 5 I would add to that, "even if they choose to pray."

The mountains have labored and brought forth a mouse.

and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

from Rehnquist's Dissent, in Wallace vs. Jaffree:

Thirty-eight years ago this Court, in Everson v. Board of Education, 330 U.S. 1, 16 (1947), summarized its exegesis of Establishment Clause doctrine thus:

"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.' Reynolds v. United States, [98 U. S. 145, 164 (1879)].

This language from Reynolds, a case involving the Free Exercise Clause of the First Amendment rather than the Establishment Clause, quoted from Thomas Jefferson's letter to the Danbury Baptist Association the phrase "I contemplate with sovereign reverence that act of the whole Americanpeople which 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."  Writings of Thomas Jefferson 113 (H. Washington ed. 1861).

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

Jefferson's fellow Virginian, James Madison, with whom he was joined in the battle for the enactment of the Virginia Statute of Religious Liberty of 1786, did playas large a part as anyone in the drafting of the Bill of Rights. He had two advantages over Jefferson in this regard: he was present in the United States, and he was a leading Member of the First Congress. But when we turn to the record of the proceedings in the First Congress leading up to the adoption of the Establishment Clause of the' Constitution, including Madison's significant contributions thereto, we see a far different picture of its purpose than the highly simplified "wall of separation between church and State."

After this opening, Rehnquist reviews the process by which the Establishment Clause came to be included in the Bill of Rights. Rehnquist shows that the notion of state neutrality toward religion did not come up in the deliberations of the First Congress.

Ed says that if you read our friend Ruth Bloch's Visionary Republic: Millennial Themes in American Thought, 1756-1800, you understand that it would not have been possible for the founders to have intended that the state be neutral on the subject of religion. The founders lived in a religious world. Secularism had yet to be invented, and neutrality did not exist. In fact, the Representatives spent time considering how to write an Establishment Clause so that it did not interfere with the state-established churches in New England, which were then "the rule rather than the exception" according to Rehnquist.

My favorite bit of historical evidence from Rehnquist's dissent is the fact that on the very day Madison introduced his proposed language for the Establishment clause, the First Congress reenacted the Northwest Ordinance. The Northwest Ordinance provided that:

"[r]eligion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."

and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

My first post on Wallace vs. Jaffree did not make clear that Justice Rehnquist supported Alabama's statute § 16-1-20.1, which authorized "a 1-minute period of silence in all public schools 'for meditation or voluntary prayer.'"

An Appeals Court found 16-1-20.1 unconstitutional; the Supreme Court upheld.

Justices Rehnquist, White, and Burger dissented. They argue that prayer in public schools is constitutional.

Here is Rehnquist:

The Framers intended the Establishment Clause to prohibit the designation of any church as a "national" one. The Clause was also designed to stop the Federal Government from asserting a preference for one religious denomination or sect over others. Given the "incorporation" of the Establishment Clause as against the States via the Fourteenth Amendment in Everson [1947], States are prohibited as well from establishing a religion or discriminating between sects. As its history abundantly shows, however, nothing in the Establishment Clause requires government to be strictly neutral between religion and irreligion, nor does that Clause prohibit Congress or the States from pursuing legitimate secular ends through nondiscriminatory sectarian means.

The Court strikes down the Alabama statute because the State wished to "characterize prayer as a favored practice." Ante, at 60. It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from "endorsing" prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God." History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.

The State surely has a secular interest in regulating the manner in which public schools are conducted. Nothing in the Establishment Clause of the First Amendment, properly understood, prohibits any such generalized "endorsement" of prayer. I would therefore reverse the judgment of the Court of Appeals.

I'll post excerpts from Justice Burger's dissent as well.


and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

C. is taking John Sexton's "The Supreme Court and Religion." Last week the class read Wallace vs Jaffree, which includes this passage from Justice Rehnquist's dissent:

For example, a State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools 10 but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing "services" conducted by the State inside the sectarian school are forbidden, Meek v. Pittenger, 421 U. S. 349, 367, 371 (1975), but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Wolman, 433 U. S., at 241. Exceptional parochial school students may receive counseling, but it must take place outside of the parochial school,12 such as in a trailer parked down the street. Id., at 245. A State may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. Religious instruction may not be given in public school, but the public school may release students during the day for religion classes elsewhere, and may enforce attendance at those classes with its truancy laws.
WALLACE, GOVERNOR OF ALABAMA, ET AL. v. JAFFREE ET AL. APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. 83-812. Argued December 4, 1984-Decided June 4, 1985. (110-111).

All of these inconsistencies could be easily resolved with vouchers and tax credits! update: In an ideal world, that is. Not inside the actual world we live in.

update 9/29/2012: Rehnquist compiled the list above to support his argument that the Court's 1971  "Lemon test"^* had resulted in unprincipled and inconsistent decisions.

...[T]he wall [of separation between church and state] idea might well have served as a useful albeit misguided analytical concept, had it led this Court to unified and principled results in Establishment Clause cases. The opposite, unfortunately, has been true; in the 38 years since Everson [1947] our Establishment Clause cases have been neither principled nor unified. Our recent opinions, many of them hopelessly divided pluralities, have with embarrassing candor conceded that the "wall of separation" is merely a "blurred, indistinct, and variable barrier," which "is not wholly accurate" and can only be "dimly perceived." Lemon v. Kurtzman, 403 U. S. 602, 614 (1971); Tilton v. Richardson, 403 U. S. 672, 677-678, (1971); Wolman v. Walter, 433 U. S. 229, 236 (1977); Lynch v. Donnelly, 465 U. S. 668, 673 (1984).

^* Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971)

and see:
the Establishment Clause
Free Exercise Clause
Wallace vs Jaffree
the Lemon test
Lemon v. Kurzman 
Lemon test

Justice Rehnquist lists "unprincipled" and "inconsistent" decisions
Justice Rehnquist on school prayer and the Constitution
Jefferson's "wall of separation"
Justice Burger's dissent in Wallace v. Jaffree
Benjamin Cardozo on metaphors in law

Two new posts from the temporarily dormant Throwing Curves on religion in the schools and the ongoing legislative efforts to revamp teacher evaluation procedures.

Teacher Evaluations and LIFO

Religion and the Public Schools