How Does the Constitution Protect Religious Freedom?

By Robert A. Goldwin; Art Kaufman | Go to book overview

3

Hand's Writing on
the Wall of Separation:
The Significance of jaffree
in Future Cases on
Religious Establishment

James McClellan

If, in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.

Thus spoke George Washington in his famous farewell address to the nation when he left office in 1796, urging his countrymen to be eternally vigilant against usurpations of authority.

Inspired by that passage, a federal judge recently delivered one of the most extraordinary opinions ever written by a member of the federal judiciary. He is Judge W. Brevard Hand of the United States District Court for the Southern District of Alabama in Mobile. The opinion was rendered on January 14, 1983, in the case of Jaffree v. The Board of School Commissioners of Mobile County, otherwise known as the Alabama prayer case. 1

In a carefully reasoned opinion that is sure to haunt the Supreme Court for years to come, Judge Hand repudiated the entire body of case law that has been erected around the establishment clause of the First Amendment. Holding that federal courts do not even have jurisdiction over cases involving prayer in the public schools of Ala-

-43-

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