The Religion Clauses : Since the Mid-1980s, the Supreme Court Has Charted an Inconsistent Course That Sometimes Does, and Sometimes Does Not, Apply Strict Separation of Church and State

Article excerpt

The recent controversy in Alabama over the display of the Ten Commandments on state-owned property renewed the debate about the meaning of the First Amendment's religion clauses. That debate came to a head some years ago in an important Supreme Court case, also from Alabama, Wallace v. Jaffree (1985). I represented Alabama in the U.S. Supreme Court; a young law student, named Bill Pryor, published a law review article about the case. Since then, we have both been committed to advocating the original meaning of the religion clauses. Thus the current attorney general of Alabama, Bill Pryor, had well-considered reasons for supporting the constitutionality of the Ten Commandments display.

In the current Alabama case, the focus on the original meaning of the religion clauses has become diffused as a result of a related controversy. When the federal courts, applying Supreme Court cases, ordered the display to be removed, Attorney General Pryor followed the court order. Chief Justice Roy Moore, who was responsible for the display, refused. As a result, Pryor and Moore have become adversaries in an ethics proceeding against the chief justice.

The chief justice's refusal to follow the federal court order raises the question of what happens when the Supreme Court itself undermines the rule of law by refusing to adhere to the Constitution. His actions recall those of the federal district judge in Jaffree who declared that "the Supreme Court erred" and refused to follow its prior decisions on public-school prayer. To some, Chief Justice Moore and the federal district judge in Jaffree are heroes; to others, they threaten the rule of law. While both judges are subject to higher courts and ethics panels, the Supreme Court is not. The only realistic recourse against the refusal of the Supreme Court to follow the Constitution is public criticism.

The Jaffree case demonstrated that a majority of the Supreme Court feels no obligation to follow the text of the religion clauses. Jaffree ruled on a statute providing for a moment of "silent prayer." More importantly, the case exposed the Court's deviation from the original meaning of the religion clauses. The Court majority did not dispute what was the original meaning of the constitutional text, but dismissed it as the meaning "at one time." The Court simply refused to give effect to the original meaning.

Jaffree's holding

The First Amendment says, with respect to religion, the following: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The first clause is called the establishment clause; the second, the free exercise clause. Although the two clauses have generally been treated separately, they articulate a comprehensive view of religious liberty.

The First Amendment does not contain the phrase "separation of church and state." That language is derived from Thomas Jefferson's view that the establishment clause erects a "wall of separation between church and state." Still, Jefferson was speaking only of the federal government. He correctly understood that most matters touching religion were to be governed solely by state law. In any event, as discussed below, Jefferson was not at all involved in Congress' drafting of the First Amendment's religion clauses or any of the Bill of Rights.

In Jaffree, the Supreme Court held that an Alabama statute allowing for "a period of silence ... for meditation or voluntary prayer" violated the First Amendment's establishment clause. By implication, however, the Court's decision approved statutes that provide for a "moment of silence" but without mentioning the word prayer.

Until this case, few if any Alabama schools had actually been observing the statutory moment of silence. Following the Court's decision, Alabama schools and schools in some other states, pursuant to new statutes or policies, started to observe a daily moment of silence. …