In his State of the Union address and elsewhere, President Trump has emphasized the importance of prayer in public schools. In one speech he promised “big action” on the matter. But just what action he is contemplating remains obscure. Teacher-led prayer to open the school day? Football players kneeling in the end zone? Religious clubs meeting after school?
The effort to return prayer to public schools may seem quixotic. The unconstitutionality of school-sponsored prayer has become a legal commonplace. Once a routine part of the day for millions of students, classroom prayers were banished more than a half-century ago—declared unconstitutional by the Supreme Court in two major decisions in 1962 and 1963. Those decisions provoked a massive public reaction, but the Court dug in and extended its disapproval to other forms of school prayer, including prayers at graduation and before football games. The Court even struck down a state law mandating that the school day begin with a moment of silence “for meditation or voluntary prayer.”
Perhaps the president aims to challenge this entrenched position. Would a newly constituted Court listen to such a challenge? It seems unlikely. The decisions from the early 1960s turned against the informal establishment that for nearly two centuries had been presumed to be in accord with the Constitution. Those decisions were part of a cultural shift that has had massive consequences in our culture and law. But in our time, much that was considered settled has become unsettled, for better and worse. So we do well to look back on the school-prayer decisions—on how audacious they were, and how momentous: momentous not just for schools, or even for the jurisprudence of church and state, but for what we may call the culture and constitution of America.
In 1959, Leo Pfeffer, the legendary separationist lawyer and scholar, was alarmed when a group of parents in Nassau County, New York, assisted by the ACLU, filed a lawsuit (Engel v. Vitale) challenging the use of the so-called Regents’ Prayer in the county’s public schools. The prayer read, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” Pfeffer was not a proponent of school prayer—on the contrary. He believed that the lawsuit was a sure loser, and was concerned that it would produce unfavorable precedent confirming the constitutionality of prayer in public schools. He turned out to be mistaken.
Pfeffer’s fears seemed well-founded at the time. The product of lengthy deliberations by a group of ministers, priests, and rabbis, the Regents’ Prayer had been endorsed by the New York Association of Secondary School Principals, the New York School Boards Association, and the New York Association of Judges of Children’s Courts. There was little in American tradition or constitutional jurisprudence to suggest that it was unconstitutional.
Yet this is just what the young but exceptionally conscientious trial judge concluded—at least initially. Judge Bernard Meyer, a recent Democratic appointee at the beginning of a distinguished career that included service on New York’s highest court, was hardly a school-prayer enthusiast. After hearing the evidence and arguments, Judge Meyer wrote a draft opinion declaring the use of the Regents’ Prayer in schools unconstitutional.
Then, before issuing the final opinion, Meyer devoted six months of careful study to the question. When he wrote his lengthy and scholarly opinion, he ended up reaching the opposite conclusion. Meyer remained personally unsympathetic to the schools’ position, and he insisted that they take stronger measures to ensure that students be able to abstain from the prayer if they or their parents objected to it. But after a thorough review of Founding-era history and later tradition and a careful analysis of the relevant precedents, the judge concluded that the Constitution could not be fairly interpreted as prohibiting school prayer.
Judge Meyer’s decision was appealed through, and affirmed by, two levels of New York courts. By the time the case reached the Supreme Court, eleven of the thirteen judges who had considered the case had concluded in favor of the permissibility of school prayer. The Supreme Court reversed the decision as emphatically, in a 6–1 ruling that would almost surely have been 8–1 if Justices Frankfurter and White had voted. (Frankfurter had been crippled by a stroke; White had only recently joined the Court.)
The majority opinion by Justice Hugo Black presented a stark contrast to Judge Meyer’s meticulous opinion. Citing not a single supporting precedent, showing no deference to the long American tradition of official prayer running back to the Congress that had drafted and approved the First Amendment’s religion clauses, Black declared in dogmatic terms that government-sponsored prayer had created controversy in sixteenth- and seventeenth-century England, that some colonists had come to this country to escape such practices, and that this purpose had been built into the First Amendment. Black’s colleague and frequent ally Justice William O. Douglas thought his opinion did not touch on the right themes. In a note to Black, he commented, “I still do not see how most of the opinion is relevant to the problem.” Reliably idiosyncratic, Douglas wrote a much more aggressive opinion proposing to root religion out of American government.
Public reaction to the Supreme Court case was prompt and vehement. Newspaper editorials throughout the country denounced the Court’s decision. At a conference of state governors, every governor except New York’s Nelson Rockefeller condemned the decision and urged passage of a constitutional amendment to overturn it. Bruce Dierenfield, a historian who has written in support of the 1960s school-prayer cases, reports that Engel provoked “the greatest outcry against a U.S. Supreme Court decision in a century”—a century that had recently included Brown v. Board of Education.
The reaction took the Justices by surprise. Dierenfield notes, “In a rare moment of political tone-deafness, [Chief Justice Earl] Warren did not anticipate the fallout.” It was evident that the Justices were already bunkered on one side of a cultural divide. That divide was to become wider and more conspicuous in the ensuing years.
What explains the national outrage provoked by the elimination of a one-sentence prayer that many schools in New York didn’t use anyway? Was this one more instance of an uninformed and hysterical public reacting to the necessary progress of American law toward an acknowledgement of our religious pluralism? Sophisticated, disdainful observers such as the esteemed constitutional scholar Philip Kurland asserted as much. But in hindsight, we can see that the indignant citizens were more prescient than the sophisticates.
The Engel case was succeeded and consolidated in the following year by another major decision, Abington Township v. Schempp (1963). In this case, the Court invalidated school-sponsored prayer and Bible reading exercises. Schempp attempted to make up for Black’s lackluster performance in Engel by offering a more deliberate majority opinion by Justice Tom Clark, aided by an even more comprehensive concurring opinion by Justice William Brennan. Boiling down the reasoning of these opinions: The Constitution demands that governments in this country be “neutral” in matters of religion, and governments can be neutral only if they limit themselves to actions serving “secular” purposes and having primarily “secular” effects.
The Schempp opinions introduced the odd couple of principles—religious neutrality and governmental secularity—that have governed religion-clause jurisprudence ever since. The principles have been reverently invoked in hundreds, probably thousands of judicial decisions. This uneasy conjunction of principles would be incorporated less than a decade later into the controversial “Lemon test,” after Lemon v. Kurtzman (1971), which has been the on-again, off-again official doctrine for almost half a century. Secular neutrality also became the basis of the Court’s proclamations in the 1980s that the Constitution prohibits governments from doing or saying things that “endorse” religion. This doctrine has been invoked in scores of cases dealing with holiday displays, publicly sponsored crosses, Ten Commandments monuments, and the words “under God” in the Pledge of Allegiance.
The incoherence of those conjoined principles was apparent from the start, as Justice Potter Stewart’s dissenting opinions reflected. A steadfastly “secular” government can be considered “neutral” toward religion only if we assume that religion is an inherently private matter. But that assumption is false. And as soon as we acknowledge that some or even most religions have a public dimension, with implications for public policy, a determinedly secular government is no longer religiously neutral; it eschews and implicitly rejects those religions. To say that government must be “neutral” toward religion and therefore is “secular” is tantamount to saying that a business is committed to being non-partisan and therefore will hire and serve only Democrats.
Sensing the tension inherent in the equation of “neutral” with “secular,” Stewart pointed out the problem. Some people believe, as a religious matter, that prayer is appropriate in public settings and institutions, including schools. This group has included not only many Christians and devout Jews but many or most American presidents, notably Washington and Lincoln. Rejecting this widely held view in its newly fashioned approach to religious-establishment jurisprudence, the Court in its requirement of governmental secularity plainly departed from anything plausibly describable as “religious neutrality.”
The incoherence of the neutrality-secularism composite has bedeviled religion-clause cases ever since. It is at the root of the confusion that plagues our current jurisprudence. Consider the occasionally contentious issue of the teaching of evolution, creationism, and intelligent design in the schools. Curricular decisions are ordinarily left to states and localities; this area is an exception. The Court has ruled, in effect, that state schools may not teach creationism or intelligent design, and also that states may not prohibit the teaching of evolution. In Epperson v. Arkansas (1968), the Court tried to explain why. “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice,” the Court solemnly intoned, invoking Schempp. “The State may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion. This prohibition is absolute.” The Court judged that Arkansas had prohibited the teaching of evolution because evolution contradicts the religious beliefs of some citizens. In that way, the Court concluded, Arkansas had aided religion, in violation of its obligation of neutrality.
This time, though, Justice Black noticed the contradiction that had worried Justice Stewart in earlier decisions. Black endorsed the result in Epperson. But in a concurring opinion he complained that on the Court’s own premises—namely, that the Constitution imposes an “absolute” prohibition of public school teachings that “‘aid or oppose’ any religion,” and that evolution directly contradicts the teachings of some religions—it would follow that the teaching of evolution in the public schools is itself constitutionally prohibited. On the Court’s own premises, one could conclude that the First Amendment prohibits states from either (a) teaching evolution or (b) forbidding the teaching of evolution.
The Court, of course, declined to acknowledge this contradiction, as it has declined to acknowledge similar contradictions and confusions that have pervaded its religion-clause jurisprudence since Schempp. Instead, the Justices presumed that what is “secular” is by definition “neutral.” The consequences for religion-clause jurisprudence are by now notorious.
Yet the consequences have not been limited to religion-clause jurisprudence. They permeate, often in barely visible but powerful ways, many of the most prominent and controversial constitutional doctrines and cases over the last two generations.
The most important and contested constitutional controversies over abortion, contraception, marriage, and assisted suicide are adjudicated under the Fourteenth Amendment’s due process and equal protection clauses. As interpreted by the Court, those clauses mean that state governments must advance at least a “legitimate” and “rational” basis for imposing restrictions on liberty or in order to use legal classifications that impose a burden or confer a benefit. But what constitutes a “legitimate” and “rational” basis? Here the notion of secular neutrality quietly but powerfully enters into the Court’s reasoning, limiting the kinds of rationales or interests states can invoke. A rationale or interest that sounds “religious” will be avoided by lawyers tasked with defending existing laws from constitutional challenge, and for good reason. In today’s constitutional regime, lawyers understand that a “religious” rationale will invite swift and instinctive condemnation.
Consider the cases culminating in Obergefell v. Hodges. In this litigation, traditional marriage laws were challenged under the Fourteenth Amendment. Typically, government lawyers who tried to defend existing marriage laws argued that limiting matrimony to one man and one woman is good for families and children. Finding the supporting evidence insufficient, many courts rejected these rationales and struck down the laws, as the Supreme Court itself eventually did in Obergefell.
Notably absent from the rationales offered in defense of marriage was any straightforward claim that a society founded on traditional marriage is more virtuous or moral, more in accordance with natural law or some other metaphysical outlook. At least in some states, majorities of citizens probably did believe something like that. But the lawyers defending marriage were formed by the “secular neutrality” doctrine introduced in the school-prayer cases. They understood that substantive moral rationales would sound “religious,” and hence not “secular,” with the result that they would be peremptorily dismissed as illegitimate. Indeed, in the litigation over marriage, some judges asserted their suspicion (as the Iowa Supreme Court did) that the “secular” rationales were really pretexts for—God forbid (so to speak)—“religious” rationales. The social science was a screen for an unconstitutional imposition of religion. Or so some judges assumed, which allowed them to join their reasoning about the Fourteenth Amendment to the school-prayer cases—not consciously, perhaps, but as part of the general consolidation of the doctrine of secular neutrality.
But why should views of morality or virtue be illegitimate bases for public policy just because, like so much else in our culture, they were informed by the Bible or some other religious teaching? It is a sign of how central the thinking of the school-prayer cases has become that most lawyers today find this question impertinent, even obtuse. When I raise the question in a seminar, students wonder whether I am being serious. Isn’t it just obvious that the use of a “religious” rationale would . . . well . . . violate the First Amendment’s establishment clause? Self-evident, almost?
Actually, no. The establishment clause forbids certain things—any sort of state-sponsored church, to mention the central instance. But to conclude that a religious rationale used to justify a law or public policy in itself violates the Constitution would have been implausible at the time the First Amendment was adopted, and through much of American history. In the early 1960s, when the school-prayer cases were decided, Martin Luther King and others argued for civil-rights legislation using overtly religious language and rationales. Only as the idea of a constitutionally mandated “secular neutrality” took hold could it seem plausible and eventually axiomatic that religious considerations in lawmaking are unconstitutional. And that idea received its official inauguration in the school-prayer cases.
The school-prayer decisions have been significant beyond the realm of constitutional law. They have had dramatic consequences for America’s public culture, as constitutional doctrine often shapes the official self-understanding of the American people. The school-prayer decisions are a conspicuous case in point.
The cultural importance of the school-prayer decisions was magnified by the fact that they concerned public schools, a vital practical institution and a crucial public symbol. Harvard professor Noah Feldman observes that by the mid-nineteenth century, public schools “were already understood as sites for the creation of American identity.” Martin Marty notes that in America, public schools came to assume the role formerly filled by an established church: They form and express essential public values. It is hardly surprising, therefore, that schools have been the most frequent subject of establishment-clause disputes.
This observation helps explain the passion generated on both sides of the issue. At first glance, the stakes seem low. The prayers contested in court typically lasted a minute at most. Designed to be ecumenical, they likely did little to instill genuine piety. But they were richly symbolic. Their regular recitation in public schools expressed and reinforced a nation that understood itself to be, as the Pledge of Allegiance puts it, “under God.” This understanding of America was subtly communicated not only to fidgeting or distracted students, but to the citizenry as a whole. The backlash against the Engel and Schempp decisions was severe because the majority of American citizens recognized, correctly, that the official prohibition of school prayer expressed and inculcated a very different national self-understanding.
The school-prayer cases marked a first step toward the presumption that “secular neutrality” defines America—a self-understanding that represented a decisive break with American traditions. Although the words “under God” were added to the Pledge only in the 1950s, they were taken from one of the most revered public statements in our history. We are, Lincoln declared in his Gettysburg Address, “this nation, under God.” Lincoln, too, spoke from within a well-established tradition. In his first inaugural address, George Washington offered these earnest words:
It would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe. . . . No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.
Unapologetic invocations of divine providence have been common enough throughout American history. As late as 1952, the Supreme Court itself declared, “We are a religious people whose institutions presuppose a Supreme Being.” Insofar as constitutional jurisprudence from the school-prayer decisions onward has insisted on a constitutionally required secularism, it has cut us off from our own past.
At their inaugurations, presidents still sponsor prayers and other expressions of religious piety. They take the oath of office with “so help me God.” They end their speeches with “God bless America.” And the words “under God” are still in the Pledge (the Ninth Circuit notwithstanding). Legal challenges to this residual piety have been rebuffed. The Supreme Court upholds these practices by insisting that these seemingly religious expressions no longer send a religious message. According to Justice Sandra Day O’Connor (the leading sponsor of the “no endorsement of religion” doctrine), prayers at inaugurations, prayers to open legislative sessions, and other religious expressions are permissible because they serve “the legitimate secular purposes of solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” That is what a “reasonable observer” would perceive—not an endorsement of religion. Or at least, so Justice O’Connor decreed.
Not everyone is “reasonable” in the sense intended by the Justice. Some less-than-reasonable citizens perceive religious purpose in what remains of the old tradition. They are indignant at violations of what they have been assured is a basic constitutional norm of secular neutrality. That assurance aggravates their sense of grievance, exacerbating cultural division. From across the divide, other citizens likewise perceive the persistence of a religious purpose. But the faithful rejoice that the Justices have not wholly succeeded in suppressing the national self-understanding that prevailed during much of the nation’s history—a self-understanding that many still cherish.
Can the traditional self-understanding of the American people be revived? Will the law of the land permit, as was the case for more than a century and a half following the Founding, invocations of divine providence and the inculcation of a civil religion “under God”? For that to happen, the school-prayer decisions will have to be reversed, or at least significantly revised.
A judicial reexamination of Engel, Schempp, and establishment-clause decisions seems unlikely. But who knows? History, like its Author, can work in mysterious ways.
Steven D. Smith is a Warren Distinguished Professor of Law at the University of San Diego.