So the Alabama federal judge told the Supreme Court to mind its own business, in one of the nation’s more unusual rulings.
In Mobile, Alabama, just as surely as camellias will bloom in February and offices will close for Mardi Gras, public school children will be seen bowing for grace at lunchtime. In their classrooms, allegiance to the Creator is openly expressed. It is not thought to be a tumor, to be cut away by the surgeons of the ACLU.
And so when Ishmael Jaffree moved to town five years ago, and enrolled his three children in public schools, there was bound to be trouble. Jaffree was raised in Cleveland as Frederick Hobbs, the son of a faith-healing mother who, he says, often put her religion on the shelf to shoplift. As a child, he was on the streets under his mother’s tutelage, preaching and reading aloud from the Bible. He rejected this past, and even changed his name.
When one day during the 1981–82 school year Jaffree’s five-year-old son Chioke came home from school asking questions about God, to whom her teacher offered thanks at lunch, Jaffree wanted to know more. The teacher, he learned, had prayed, “God is great, God is good, let us thank him for our food.” These are pernicious words for a public school lunchroom in the 1980s, given the trend of the law. Jaffree asked that his children not be subjected to this religious indoctrination, and when the practices continued, he sued, alleging that his children had suffered “severe emotional distress” as a result of the prayers.
The State of Alabama joined the battle when then-Governor Fob James signed a law permitting prayers led by teachers. The law suggested wording written by James’s son, and that prayer has been an embarrassment to some of the pro-prayer Mobilians, who insist that classroom prayer must be spontaneous and voluntary, not directed by any school official or law.
Many Mobilians of Christian conviction were stirred up by Jaffree’s lawsuit. Catholics, Baptists, and a profusion of other Protestants stood united, perhaps for the first time, in support of teachers who want to pray. A group of 620 religious leaders and laymen intervened in the case, led by Paul T. McHenry, pastor of Ridgewood Presbyterian Church (PCA).
McHenry reasons this way: Suppose an announcement over the PA system says the President has been shot. Should a teacher be sued for offering a prayer? If Jaffree wins, she would be. Barber Sherling, the attorney for the interveners and an elder in McHenry’s church, offers another thought: “If a child asks for guidance about premarital sex, can a teacher say she believes it is wrong because the Bible says so? A teacher could be taken to court for saying that. It’s not far-fetched. It’s what we are dealing with.”
Nonsense, responds Jaffree’s lawyer, Ronnie L. Williams. It is unfair to read more into the case than is there. “What we are concerned with,” he says, “is the daily drumbeat of prayer. I might even get alarmed if I thought this would remove Thanksgiving or Christmas from schools.”
Opinions like these are not hard to come by in Mobile, but they are not what count. The law turns on what the U.S. Supreme Court has said about the matter, and since 1962 it has said clearly, and repeatedly, that organized prayer and Bible reading in public schools is unconstitutional.
It was another innocuous prayer, such as the one in Alabama, drawn by another government body, that led to the first of these decisions. The New York State Board of Regents (the state school board) had composed a simple, 22-word prayer for optional use in New York public schools. One of the few local districts to adopt the prayer was Hyde Park, near New York City, and its local school board president was William Vitale. Five sets of parents, including Steven Engel and his wife, objected, and filed suit. They lost in the lower courts, but in the U.S. Supreme Court, on June 25, 1962, the justices overruled those courts. Engel v. Vitale went into the legal history books.
In writing his decision in the matter, Justice Hugo Black declared that recitation of the regents’ prayer was “wholly inconsistent” with the constitutional prohibition against establishment of religion. The Constitution’s First Amendment says that “Congress shall make no law respecting an establishment of religion … or prohibiting the free exercise thereof.” By ordaining that a prayer be recited in a public school, the school board was “establishing religion,” Black concluded.
The very next year, a teen-age student in Baltimore, named William Murray, went on an 18-day protest strike because his school’s morning exercises included the reading of a chapter from the Bible, or the Lord’s Prayer. The youngster was urged on by his mother, Madalyn Murray O’Hair. The Murrays filed suit. As in the Vitale case, the suit lost in the lower courts, but the Supreme Court reversed the decisions. Simultaneously, the court ruled the same way on another Bible reading case, brought by Mr. and Mrs. Edward Schempp, Unitarians from Philadelphia. In writing the decision on Murray and Schempp, Justice Tom Clark acknowledged the devotion to God of the Founding Fathers, but he said that the very religious intolerance these men fought against required the government to be neutral toward any particular religion. “The government is neutral,” Clark wrote, and “while protecting all, it prefers none and it disparages none.”
So in 1962, organized prayer was abolished, and a year later. Bible reading was gone, an astonishingly swift end to a tradition as old as the Republic.
With that history, Ishmael Jaffree and his lawyer anticipated little trouble with their suit against lunchtime grace in Mobile. But the lawyers for the school board chose not to venture among the land mines of those earlier cases. Instead, they argued that the Supreme Court has no authority at all over what states may choose to do about religious worship. This is not a new argument, but neither is it widely held. Those who do advance it say that federal courts (and this includes the Supreme Court) may not rule on matters of free speech and freedom of religion, which are protected under the Bill of Rights, and which are to serve individuals and sovereign states as protection against the exuberances of the federal government. Therefore, they say, federal courts may not overrule state courts in these matters.
Most lawyers, including Christians, stop short at such a view. “The key question is whether we, as Americans in 1983, really want our basic rights to vary radically from state to state,” says Sam Ericsson of the Christian Legal Society. “In many cases we would have to go back 60 years and start from scratch to develop state laws regarding religious freedom, free press, free speech, the right to assemble, and other basic rights.”
The View From The Classrooms In Mobile
The decision on whether to pray or not to pray falls largely to individual teachers in Mobile, Alabama, because the school board has issued no policy either way.
At Leinkauf Elementary School near downtown Mobile, teachers have decided to curtail classroom prayer in light of recent rulings. It is no cataclysm in most classrooms, but there is some resentment over being court-ordered around. Three teachers reflect on what it means to them. (The interviews were conducted before the appeals court overturned Hand’s decision.)
Before the Jaffree case, second-grade teacher Susan Helm led her class in a short devotional after the Pledge of Allegiance each morning. Occasionally a child would recite a Sunday school verse or request prayer for an ailing family member.
Now the children wonder why prayers and grace at lunchtime have been discontinued, and Helm tells them it is no longer allowed. “I try to be very honest and not judgmental. I told them due to the controversy we’d stop saying grace out loud, but if they want to do it by themselves, that’s okay.”
But outside her classroom, Helm, an Episcopalian, feels confused and resentful about government interference. Expressing her faith comes naturally, and the court rulings have made Helm self-conscious about being herself in school. She finds herself monitoring every word to be sure it will not indoctrinate children with religion.
She is most acutely aware of the change when it comes to discipline. When a child misbehaves, she now hesitates before saying “that’s not the right thing to do.” Removing God from schools, she fears, will leave behind “an unstable set of values that says what’s right today is wrong tomorrow.”
Fifth-grade teacher Anne Dalton finds her students are very aware of the Jaffree controversy, but have expressed no real concern about restoring classroom prayer. Dalton, who is married to a Methodist minister, views the issue as an infringement of personal freedom rather than a hindrance to the educational process. She believes “we should have the right to pray whenever we want to.”
Dalton acknowledges that school prayer is superficial. “Its only value,” she says, “is the freedom to do it or not do it.” Omitting it from her class makes no discernible difference and has not altered her teaching approach. “A Christian influences children far more by the life he lives … she says.
Cary Stuebing, a Leinkauf kindergarten teacher who is Jewish, offers a different perspective. She believes religious values should be instilled at home, not in school, because parochial schools fulfill the need adequately for parents who want a child trained in a religious environment.
Young children are deeply influenced by teachers, Stuebing observes, “and I would hate to have my child influenced [in religious matters] by a Christian teacher. I would be angry if someone tried to lead my child in any religious exercise that I hadn’t okayed 100 percent.” She believes Jaffree has “a real justifiable reason to bring this case.”
Still, even in Stuebing’s class, religion is openly discussed as a normal part of life. On Mondays, the children chatter about weekend activities, including church. When a child’s grandparent died, Stuebing led a discussion about heaven. Each child had a chance to share his or her belief, Stuebing recalls. “Then I said, ‘listen to what Mom and Dad tell you.’ ”
Lawyer John Whitehead believes the Supreme Court has been historically wrong in inserting itself in Bill of Rights matters, but he ponders the reaction of Christian evangelists who, for example, might be legally barred from Utah, should its state legislature decide that freedom of religion in that state extends only to Mormonism.
Likewise, it has been the action of federal courts in matters of civil rights that has guaranteed equality for blacks during the turmoil of the sixties. That helps explain why the pro-prayer side hasn’t gotten strong support from black clergy in Mobile.
Given these implications, then, it surprised many when on January 14 Alabama Federal Court Judge Brevard Hand set himself defiantly across the path of twentieth-century constitutional law. The brunt of his ruling was against Jaffree, and in favor of prayer in the Mobile schools. He said that the Supreme Court has been ruling wrong for most of the century.
Drawing from evidence presented during the trial, Hand argued in his 51-page decision that “… the founding fathers of this country and the framers of what became the First Amendment never intended … to erect an absolute wall of separation between the federal government and religion.” (The term “wall of separation” was written by Thomas Jefferson in a letter to the Danbury [Connecticut] Baptist Association in 1802, 15 years after the Constitution was enacted.) “Enough is enough,” wrote Hand. “Figurative illustrations should not serve as a basis for deciding constitutional issues.”
Much of the evidence so impressive to Hand was compiled by James McClellan, former chief counsel for the U.S. Senate Subcommittee on the Separation of Powers. In a long chapter of a book on judicial reform, McClellan amassed evidence to show that after the Revolution, states did as they wished on religious questions, and there existed nothing that might have been called a wall of separation. Here is some of McClellan’s evidence:
• Following the Revolution, the State of Connecticut continued to levy fines for those failing to attend church on Sunday, and taxes were collected to support the Congregational church.
• New Hampshire’s first Constitution, passed in 1784, permitted towns (not churches) to elect Congregational ministers, and provided tax-paid salaries for other Protestant ministers.
• The Massachusetts constitution of 1780 also provided tax money to support the congregational church, and required an oath of all public officials that they “believe in the Christian religion and have a firm persuasion of its truth.”
• Although Pennsylvania, in its constitution of 1776, forbade tax-supported churches, it limited civil rights only to those persons “who acknowledge the being of God.” Office holders had to affirm their belief in the divine inspiration of the Old and New Testaments.
• Similarly, North Carolina declared in its constitution that no person could hold public office if he denied “the truth of the Protestant religion or the devine authority of either the Old or New Testament.”
• Among southern states, only in Thomas Jefferson’s Virginia did the complete separation of church and state become a principle, writes McClellan. “On the eve of the Philadelphia [federal constitutional] convention in 1787, the wall of separation doctrine espoused by Madison and Jefferson had been rejected in every state but Virginia and Rhode Island.”
McClellan argues further that the adoption of the Bill of Rights in 1791 had no effect whatever on church-and-state relations among the states. He notes, for example, that:
• Connecticut passed a law in 1791 requiring dissenters from Congregationalism to prove they belonged to another church if they wished to avoid the state tithe.
• New Hampshire carried its constitutional provision for public support of “Protestant teachers of piety” into its revised constitution of 1912.
McClellan also traces the trend away from such practices in the nineteenth century, when many of these laws fell into disuse, but he also notes that a South Carolina law of 1868 denied atheists the right to hold office. By the turn of the century, atheists were also barred from public office in Arkansas, Mississippi, Texas, and North Carolina. In the nineteenth century, only Massachusetts required Bible reading in public schools, but between 1913 and 1930, 11 more states enacted similar laws.
McClellan writes that “such practices as these are hardly in accord with the putative notion that the Jeffersonian doctrine of church-state relations was increasingly popular from the moment of its inception until it was formally adopted by the Supreme Court.”
In 1868, shortly after the Civil War’s end, Congress adopted the Fourteenth Amendment in the Constitution. It reads in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.”
This is the “due process” clause, and whether Congress, in 1868, intended it to redress the evil treatment of blacks during Reconstruction, or whether Congress meant it as a federal check on all freedoms in the Bill of Rights, has long been a matter of debate. In his decision, Hand concludes that the Fourteenth Amendment does not apply to the Bill of Rights. Therefore the federal courts may not rule on First Amendment questions.
But the clear trend of the law is that the federal courts can use the Fourteenth Amendment as a check on the states. In 1925, in a decision on a New York case, the Supreme Court first intimated this. Then in a famous case in 1947, which questioned whether the State of New Jersey could reimburse parents for transporting their children to parochial schools, Supreme Court Justice Hugo Black wrote: “The First Amendment, as made applicable to the states by the 14th [Amendment] … commands that a state ‘shall make no law respecting an establishment of religion.’ ” In McClellan’s words, “This was the first instance in which the court interpreted the establishment clause as a restriction on the states. It was a bold and revolutionary step, overturning more than a century and a half of established precedent that had uniformly permitted the states to set public policy regarding their relations with religious organizations.”
From this historical evidence, Hand concluded that the new Republic was saturated with religious values, and only the latter-day decisions of the Supreme Court have begun blotting them out, leaving a patchwork of confusion. He writes: “Consistency no longer exists. Where you cannot recite the Lord’s Prayer, you may sing His praises in ‘God Bless America.’ Where you cannot post the Ten Commandments on the wall for those to read if they choose, you can require the Pledge of Allegience. Where you cannot acknowledge the authority of the Almighty in the Regent’s prayer, you can acknowledge the existence of the Almighty in singing the verses of ‘America’ and ‘Battle Hymn of the Republic.’ It is no wonder that people perceive that justice is myopic, obtuse, and Janus-like.” With those words, he concluded his opinion and ruled against the mountain of Supreme Court precedence.
But on May 12, the federal appeals court in Atlanta overturned his decision, and declared it unconstitutional for Alabama public school teachers to lead willing students in prayer, or even to permit a moment of silent meditation at the start of a school day.
The state must remain neutral, the appeals court said, “not only between competing religious sects, but also between believers and nonbelievers. It was a strong ruling. The court directed Hand to order the unconstitutional worship activities to cease. At press time. Hand had not yet acted, and until he does, the lawyer for the Mobile school board is advising the schools they may continue voluntary prayer if they wish. Meanwhile, the school board is pondering whether to appeal to the Supreme Court.
There are few ready to predict that the Supreme Court will accept the Mobile case for review if it comes, much less restore Judge Hand’s decision. But the affair should not be dismissed as merely a backwater eddy against the main current of constitutional law. It is, rather, one more slap of a ground swell that is trying to wear away at that wall of separation, which is felt in some quarters to have been constructed higher than even Jefferson intended.
Other slaps of the ground swell are being heard. Eighteen months ago, the Supreme Court ruled that universities cannot ban religious worship and discussion from their campuses. Just last month, one day after Hand was overruled, a federal court declared that a Pennsylvania high school cannot bar religious fellowship after hours (see the article on this case in the News section). Although Christians are divided on the issue, a constitutional amendment proffered by President Reagan, which would restore voluntary prayer during class time, is percolating through Congress.
Sir Walter Moberly, debating the absence of religious thought in English public schools, has said, “It is fallacy to suppose that by omitting a subject, you teach nothing about it. On the contrary, you teach that it is to be omitted. And you teach this not openly and explicitly, which would invite criticism, you simply take it for granted and thereby insinuate it silently, insidiously, and all but irresistibly.…”
It is Moberly’s conviction that emboldens the campaign to restore religious values to the schools and public places in this country today.
TOM MINNERY, with BETH SPRING in Mobile
