First Among Equals (15 page)

In neither
Engel
nor
Schempp
was student participation required. Consistent with the teaching of
Barnette
(the flag-salute case), students could be excused. But this fact did not affect the Court's judgment: Public schools may not sponsor things religious.

The Warren Court's School Prayer Decisions, as they are called, set off a political and cultural firestorm. At the time, they were widely seen as a misguided attempt, at best, to remove God from the classroom. Of course, there were not a few—including many of religious conviction—who saw the decisions as blessings in disguise, since state-ordained prayers tended to be watered down, mere exercises in civil religion that, in various faith communities, did not satisfy the requisites of genuine prayer. But the dominant public response was one of strong objection to what the Court had done. Prayers over public-address systems persisted in many public schools for many years, and constitutional amendments to overrule the decisions were often suggested, though none was ever formally proposed by Congress, much less ratified.

The Warren Court became the Burger Court, but the Court's view of religion and the public schools did not change. In 1980, the Court was asked to decide a case that well illustrated the public's continuing discontent with the School Prayer Decisions. Kentucky had passed a law requiring its schools to post a copy of the Ten Commandments. It was as if Kentucky had this thought: If the Supreme Court won't allow school prayer or Bible reading, how can it not permit us merely to display a copy of the source of so much law in the West, the tablets Moses brought down from Mount Sinai? But in
Stone v. Graham,
the Court, adhering to
Engel
and to
Abington,
held firm against even this appearance of religion in public schools. The separationist viewpoint was now deep-seated in the Court's outlook.

In 1985, the Burger Court reviewed
Wallace v. Jaffree,
a case from Alabama. That state, like a number of others, had passed a law authorizing its schools to set aside a moment of silence in which students might meditate or even pray. If anyone still thought that the School Prayer Decisions might be reconsidered by the Burger Court, that idea was laid to rest in
Jaffree.
Stability reigned. By a vote of 6–3, the justices adhered to separationist doctrine in holding the Alabama law unconstitutional. Dissenting at length, William Rehnquist (still an associate justice) took sharp issue with
Everson's
view of history. Rehnquist discerned in the founding history different principles from those that previous Court majorities had accepted. He concluded that the First Amendment does not forbid government from preferring religion over nonreligion, and that government may aid religion, so long as it does not favor one religion over another.

Shortly thereafter, Rehnquist moved to the Court's center seat as chief justice. Soon enough, it seemed that he might have the votes to permit religion, at least to some extent, to return to the public schools. Antonin Scalia had taken the seat Rehnquist vacated when he became chief, and Anthony Kennedy in 1988 had replaced Justice Powell. In 1990, David Souter took Justice Brennan's place, and the next year Clarence Thomas succeeded Justice Marshall. All of the new justices were appointed by Republican presidents committed to the philosophy of judicial restraint. Presumably, they were all judicial conservatives. Two of the departing justices—Brennan and Marshall—were, unequivocally, judicial liberals. On Religion Clause questions, they had consistently cast separationist votes.

Nothing changed. Notwithstanding these shifts in the Court's membership, the Rehnquist Court accepted and even extended the teachings of the School Prayer Decisions. This surprising development came in the waning months of the Bush administration. Stability had trumped restoration of traditional understanding of the constitutional order.

Specifically, in the 1992 case of
Lee v. Weisman,
the Rehnquist Court ruled unconstitutional a prayer included in a public-school graduation ceremony. The principle of
stare decisis
carried the day. As the case was proceeding to the Court for argument and decision, I thought it would prove to be terribly important for the country and its traditions, and so the solicitor general's office entered the case on behalf of the school board. Since I felt strongly about the issue, I decided to argue the case personally. In my argument, I emphasized the voluntary nature of the ceremony. Just as portions of the audience might disagree with the graduation speaker's remarks, so too the noncoercive nature of the graduation ceremony itself shielded the prayer, I thought, from a successful First Amendment challenge.

In particular, the background of the case, I thought, would win the Court's sympathies. For years, the middle and high schools of Providence, Rhode Island, had invited local members of the clergy to deliver invocation and benedictions as part of their schools graduation ceremonies. Following this tradition, the principal of Nathan Bishop Middle School invited Rabbi Leslie Gutterman of Temple Beth El to offer the prayers at his school's 1989 graduation ceremony. Four days before the event, Daniel Weisman, whose eighth-grade daughter Deborah was in the graduating class, sought a federal court order to prevent the prayer from being uttered at the ceremony. The motion was denied, but Weisman continued his case, seeking a decision that would prevent any more graduation prayers. Weisman won in district court, the court of appeals, and then the Supreme Court, the last by a vote of 5–4.

This apparently was not the outcome when the justices first cast their votes. As we discussed in Chapter Four, in
Buckley v. Valeo,
the justices meet in the private conference to vote in the same week they hear the oral argument in a given case. If the chief justice votes with the majority, he then assigns the task of writing the Court's opinion to one of the justices who voted with him. If the chief is in the minority, the most senior justice in the majority assigns the opinion-writing duty to a justice on his side. According to news reports, when the justices met in conference after the oral argument in
Weisman,
they voted 5–4 in favor of the school, not the parents. This majority included Chief Justice Rehnquist and Justices White, Scalia, Kennedy, and Thomas. Rehnquist then assigned the job of writing the opinion for the Court to Kennedy. Sometime afterward, however, Kennedy switched sides—thus flipping the outcome in the case. He did write the Court's opinion, but it was one totally different from the opinion he had been assigned.

I must confess my own surprise at this turn of events. I thought the Court would find something wrong not with the Providence policy, but with the doctrine rooted in
Everson
it had long used to review establishment-ban questions. Indeed, as solicitor general, I asked the Court in
Weisman
to reconsider this doctrine, for if it meant the Providence policy was unconstitutional, which surely it was not, then the doctrine must be wrong. But the Court did not see the policy as I did and it left the
Everson
doctrine intact. “This case does not require us to revisit … difficult [First Amendment] questions,” wrote Kennedy. “We can decide the case without reconsidering [our] general constitutional framework…. Thus we do not accept the invitation of petitioners and amicus the United States to reconsider our case law.”

I was taken aback. Kennedy, a Reagan appointee, wrote from a sweepingly separationist perspective. His opinion read like one from the Warren Court. “History,” he said, “was not enough to justify an inherently religious practice in a public school setting,” even one—as the Nathan Bishop Middle School's had been when Rabbi Gutterman offered his prayers—sensitive to the feelings of those of different faiths or of none at all. Nor did the fact of voluntary attendance at the ceremony impress Kennedy, who dismissed the idea of voluntariness as entirely formalistic and technical. “It was sophistry,” he said, “to suggest that graduates objecting to the prayers and their families would simply absent themselves from the ceremonies for that reason, since most graduates do want to be with their peers in these formal, final sessions.”

The Kennedy majority seemed most troubled by the involvement of the state, in the form of the public-school authorities, in securing and even framing the terms of the prayers. School principals issued the invitations to Providence clergy, and they provided the clergy with guidelines that encouraged the articulation of inclusive and nondivisive prayers. For the Kennedy majority, this fact appeared to decide the case, for it made
Weisman
akin to
Engel v. Vitale,
the original school-prayer case, where the New York Board of Education actually wrote the prayer used in the state's public schools. Like New York thirty years earlier, Providence, in the Court's view, had violated the First Amendment's establishment ban.

For the four dissenters, tradition and history were the preferred tools of interpreting the Constitution. In their view, both those tools supported prayers at ceremonial occasions. Providence, they said, had done nothing that could not be found in other parts of the country. The majority, as the dissenters saw it, had engaged in psychobabble by finding coercion in an entirely voluntary ceremony quite different from the ordinary day-to-day classroom setting of a public school. A graduation ceremony was a one-time-only event, with no suggestion of indoctrination; it was more like an invocation at an inauguration or the opening of a legislative session.

But the dissenters' protests fell short. Stability reigned—just as it would eight years later in the next school-prayer case,
Santa Fe Independent School District v. Doe.
Here, the issue was the constitutionality of student-led and student-initiated prayers before a high-school football game. By a vote of 6–3, with Justice Stevens writing, the Court condemned the prayers as unconstitutional. Even though the decision to pray and the words prayed would be the students', the prayer nonetheless was authorized by a government policy and took place on government property at government-sponsored school-related events. It would “force” those in the stands to participate in an act of worship. This was impermissible under separationist doctrine. In dissent, Chief Justice Rehnquist said the majority opinion bristles with hostility to all things religious in public life.

The story of religion and the public schools from over the past half century is the same. To repeat, the public schools may not sponsor religious activities. There is an important footnote to this story, however, and it involves Bridget Mergens, the student at Westside High School in Omaha. The footnote shows, again, the unifying force of the principle of equality. Equality can trump the separationist principle.

The background of the
Mergens
case begins in the early 1980s. At that time, Congress grew concerned about reports of public schools stepping in to halt religious expressions or activities of students that could not reasonably be construed as sponsored or coerced by government. Congress saw, moreover, that two federal courts of appeals had ruled that student religious groups could not, consistent with the First Amendment's establishment ban, meet on school premises during noninstructional time. In short, some schools and some courts had made the High Court's separationist doctrine even harder. In my own view those courts were wrong, swept away by an unduly rigid approach to church-state relationships in the context of schools. Nor was I alone in this sentiment. Congress, disagreeing with the lower courts' view of the establishment ban, passed a law that it believed was consistent with the Supreme Court's rulings. Congress hoped that the law would make the schools more willing to accommodate the truly free exercise of religion by students. To do so, Congress tapped into the equality principle.

More specifically, Congress found the principle for this new law in one of the Supreme Court's own decisions,
Widmar v. Vincent
(1981), which we examined in Chapter Three, which discussed freedom of speech. At issue there, as we saw, was a state-university regulation prohibiting student use of campus facilities for religious meetings. The Court, by a vote of 8–1, struck down the regulation on free-speech grounds, declining to address the establishment and free exercise issues in the case.
The idea, again, was one of equality:
The university had opened its campus facilities to the use of numerous student groups and it could not single out for exclusion a faith-based organization.

Congress saw in the university case a broad, equal-access principle that if properly applied could open public schools to student-led religious activities. Not surprisingly, the law, enacted in 1984, was styled the Equal Access Act. It provides that high schools receiving federal funds that allow a single noncurricular, student-led group to meet on campus must extend this same right to any other such groups—even religious ones. Everyone is to enjoy equal access, and no one may be discriminated against on account of religion.

Congress found middle ground. It did so by reframing the issue of religion and the public schools in terms of the enduring principle of equality and then extending the reach of this principle to high-school students. Republicans and Democrats might disagree on school prayer, but they were united in rejecting the exclusion of religious groups from a forum to which all other high-school students had access. Equality was the unifying banner under which almost everyone could march.

Alas, in the years after the act was passed, some ardent separationists were found in the ranks of public-school administrators. Some of these administrators were in Omaha, at the Westside High School attended by Bridget Mergens. She was distressed when school officials, turning down her request, suggested that she take her group to the church located across the street from the school, or to some other church. Bridget's lawsuit claimed that Westside High School had violated the Equal Access Act by refusing to allow her group to meet on school premises. The school board responded by challenging the law itself, on two grounds. First, it said, Congress surely would not have intended to intrude so deeply into the traditional discretion of local school boards by passing such a law. Second, it argued that if Congress did have such an intent, then the law violated the First Amendment's establishment ban.