With his usual eloquence, Justice Robert Jackson made the case for teaching about religion in the public schools sixty years ago:
I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity--both Catholic and Protestant--and other faiths accepted by a large part of the world's peoples. One can hardly respect a system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared. (1) Fifteen years later, the Supreme Court agreed. As the majority in School District of Abington v. Schempp stated in dictum, "study of the Bible or of religion, when presented objectively as part of a secular program of education, may ... be effected consistently with the First Amendment." (2) This Article explores whether public schools in the United States can--consistent with the Establishment Clause of the First Amendment (3)--require their students to attend such instruction. Notably, the Toledo Principles, published in 2007 by the Organization for Security and Co-operation in Europe, recommend that member states adopt this practice, concluding that, "[w]here compulsory courses involving teaching about religions and beliefs are sufficiently neutral and objective, requiring participation in such courses as such does not violate the freedom of religion and belief .... " (4) To the extent the authors of these principles thought the United States Supreme Court would agree, (5) they were mistaken. Because compelled instruction about religion would prove divisive and threaten parental control over their children's religious training, the Court would likely hold the practice unconstitutional.6 Furthermore, by making instruction compulsory, the Court could strike down the practice as an impermissible preference for religion.
We will begin by identifying the first principle of the Court's modem Establishment Clause jurisprudence and briefly critique the demonstrably flawed foundation on which it rests. We will then examine its scrupulous application in the public school context. The effect of that application has been to acclimate today's Americans to a public arena where religion is out-of-place. After describing the Toledo Principles, we will conclude by showing why, even adopting a less rigid understanding of the Establishment Clause, the Court would still reject them on their own terms.
NEITHER PREFERENCE NOR AID FOR RELIGION
The First Amendment to the United States Constitution provides in part that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]" (7) Like the other provisions of the Bill of Rights, the Establishment and Free Exercise
Clauses were originally intended to limit federal and not state power. (8) It was not until 1940 that the Court first applied the Religion Clauses against the states. (9)
Seven years later, in Everson v. Board of Education, (10) the Court began fashioning the principles that would govern the Establishment Clause's future application. Though four justices dissented from the actual holding, (11) the Court was of one mind (12) that "the clause against establishment of religion by law was intended to erect 'a wall of separation between Church and State.'" (13) That wall prohibited both state and federal governments from "pass[ing] laws which aid one religion, aid all religions, or prefer one religion over another." (14) It excluded any contention that "historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions." (15) And it precluded any government from "pass[ing] laws or impos[ing] requirements which aid all religions as against non-believers." (16)
Both Justice Black for the majority in Everson and Justice Rutledge for the dissent derived these principles from a common historical root. They emphasized the Assessment Controversy in Virginia during the mid-1780s as indicative of the views then prevalent in the country against established religion, (17) A bill taxing citizens for the support of their ministers (18) was defeated through Madison's efforts, (19) and Jefferson's Bill for Religious Freedom was enacted instead. Thus, the strict separationism of Madison's Memorial and Remonstrance (20) and of Jefferson's Bill for Religious Freedom, captured in his "wall" metaphor, (21) reflected the mood in Congress when the Religion Clauses were adopted. (22) More importantly, the views of Madison during the Assessment Controversy undoubtedly animated the Religion Clauses which he authored and should receive definitive weight in their interpretation. As Justice Rutledge observed:
All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing. (23) Neither Black nor Rutledge, however, explained why, in concentrating on the controversy in Virginia over the Assessment Bill, they ignored such states as Massachusetts (24) and New Hampshire (25) that had maintained systems of tax support for religion. (26) Further challenges to their use of history have recently emerged on the Court. (27) Then-Justice Rehnquist pointed out, for example, that Jefferson was in France during the consideration of the First Amendment and that the letter that included his "wall" metaphor was written fourteen years after that amendment was 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." (28)
Further, the language Madison proposed to Congress, "nor shall any national religion be established," (29) and his explanation on the House floor, that it was meant to quell fears that "one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform," (30) clearly was not aimed to prevent all preferences for religion. (31) More importantly, the House did not adopt Madison's language; (32) thus, Black and Rutledge were not warranted in attributing to him definitive weight in the interpretation of the text that was ultimately approved.
Concerning that text, the debates in Congress unfortunately shed little light on what was meant by a "law respecting an establishment of religion." The Senate's deliberations were secret; and, the entire debate in the House was "contained in two full columns of the 'Annals,' and does not seem particularly illuminating." (33) One thing seems clear, however: If Congress had intended to prohibit all preferences for religion, it had the vehicle to do just that in an amendment proposed by Representative Livermore, that "Congress shall make no laws touching religion." (34) Though the House initially adopted that proposal, (35) it was replaced five days later without any apparent debate. (36) Ultimately, to understand the text of the Establishment Clause, we must rely on the actions of the first Congress that approved it.
Justice Scalia ably summarized those actions in a recent dissenting opinion:
The First Congress instituted the practice of beginning its legislative sessions with a prayer. The same week that Congress submitted the Establishment Clause as part of the Bill of Rights for ratification by the States, it enacted legislation providing for paid chaplains in the House and Senate. The day after the First Amendment was proposed, the same Congress that had proposed it requested the President to proclaim "a day of public thanksgiving and prayer, to be observed, by acknowledging, with grateful hearts, the many and signal favours of Almighty God." President Washington offered the first Thanksgiving Proclamation shortly thereafter, devoting November 26, 1789, on behalf of the American people "'to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be,'" thus beginning a tradition of offering gratitude to God that continues today. The same Congress also reenacted the Northwest Territory Ordinance of 1787, 1 Stat. 50, Article III of which provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." And of course the First Amendment itself accords religion (and no other manner of belief) special constitutional protection. (37) It seems indisputable from these measures Congress enacted contemporaneously with its sponsorship of the First Amendment that Black and Rutledge were simply wrong in their factual assertion that the Establishment Clause was meant to prohibit all governmental preference for religion. "[S]tare decisis may bind courts as to matters of law, but it cannot bind them as to matters of history." (38) Regrettably, however, court majorities still feel bound to the skewed historical narrative in Everson, and to the flawed interpretation of the Establishment Clause on which it rests, all to the detriment of the country and, as we will next explore, to its public schools and their students.
EVERSON IN THE PUBLIC SCHOOLS
The Court scrupulously adheres to Everson's ban on preference or aid for religion when public school programs are involved. For example, of the six cases invalidating government action because of a...