Teaching about Religion in the Public Schools
Mikochik, Stephen L., Ave Maria Law Review
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. …