Summer 2000, Vol. 3, No. 2

Contents Page,
Vol. 3, No. 2


Quick Links
to other articles
in this issue:
Two Cheers for the Pilgrimage

What Really Happened in Uganda?

Go Down, Elian

A Religious Right Arrives in Canada

Feeble Opinions On the House Chaplaincy

A Cardinal in Full

Mormon Women in the Real World

Peanuts for Christ

From the Editor:
Disestablishing Football

by Mark Silk

In his dissent from the Supreme Court’s Santa Fe Independent School District v. Doe decision, which in June declared unconstitutional a Texas school district’s policy allowing student--led prayer at high school football games, Chief Justice Rehnquist claimed that the majority opinion was unfaithful to "the meaning of the Establishment Clause, when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of ‘public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.’"

Journalists unhappy with the court’s 6-3 decision likewise referred back to the original meaning of the First Amendment, which begins with the clause in question: "Congress shall make no law respecting an establishment of religion..." George Will, for one, pronounced that the court’s current practice "disregards the intention of the framers of the Establishment Clause, which was to ensure government neutrality between religious factions, not between religion and irreligion."

Rehnquist’s and Will’s assurance notwithstanding, the original intent of the Establishment Clause is less than certain. The somewhat murky wording emerged from neither the House nor the Senate of the First Congress, but from a conference committee empowered to reconcile the House and Senate versions of the Bill of Rights, and there is no record of the committee’s deliberations. We know who the conferees were, however, and this does shed some light on the question.

James Madison, representing Virginia, led the House’s three-member delegation. The Constitution’s most important drafter, Madison was on record in favor of constitutionally banning state religious establishments, including all tangible government support for religious institutions. But joining him on the committee was Roger Sherman of Connecticut--a staunch Congregationalist who made no secret of his hostility to Anglicans and Catholics, representing a state that would maintain its religious establishment until 1818.

The Senate conferees included Charles Carroll, the Maryland Roman Catholic (educated by Jesuits) who made his first public mark attacking his state’s support of Anglican clergy. But the leader on the Senate side was another Connecticut man, Oliver Ellsworth, shortly to become the nation’s second Chief Justice and like Sherman a pillar of Congregationalism. Ellsworth’s views on church and state are evident in a report he wrote for the Connecticut General Assembly in 1802 opposing a petition from Connecticut Baptists to get rid of the state’s Congregationalist establishment. It reads, in part:

This founded on the principle...that every member of society should, in some way, contribute to the support of religious institutions. In illustration of this principle, it may be observed, that the primary objects of government are the peace, order, and prosperity of society.... To the promotion of these objects, particularly in a republican government, good morals are essential. Institutions for the promotion of good morals are therefore objects of legislative provision and support; and among these, in the opinion of the committee, religious institutions are eminently useful and important....

The right of the legislature to oblige each individual of the community to contribute towards the support of schools for the instruction of children, or of courts of justice for the protection of rights, is not questioned; nor is any individual allowed to refuse his contribution, because he has no children to be instructed, no injuries to be redressed, or because he conscientiously believes those institutions useless. On the same principle of general utility, in the opinion of the committee, the legislature may aid the maintenance of that religion whose benign influence on morals is universally acknowledged. It may be added that the principle has been long recognized, and is too intimately connected with the peace, order, and happiness of the state to be abandoned.

Color Ellsworth anti-Madisonian. It is clear that the conference committee was put together to include those of strongly differing opinions on the establishment question. It is also clear that none of them wanted the new federal government to mandate a religion. Madison and Carroll were opposed in principle and the Connecticut men would have feared the imposition of something other than Congregationalism.

Otherwise, the Establishment Clause looks like a victory for the New Englanders. It appears to tell the federal government simply to butt out, permitting the states to choose for themselves anything from Connecticut’s maintenance of its exclusive religious establishment to Virginia’s rejection of all state support for religion. As Princeton University’s John Wilson has noted, on the issue of establishment what the Framers did was punt, just as they did on slavery.

What was to happen next, then, was an open question. Under pressure of religious diversity--the presence of Baptists and Episcopalians in Connecticut, for example--those churchly establishments that outlasted the Bill of Rights were folded up within a few decades. The establishment of generalized religious practices (including Christian-only state oaths of office, Sunday blue laws, and Bible reading in the public schools) flowed and ebbed.

Only after World War II did the Supreme Court officially extend the reach of the Establishment Clause to the states, via the Fourteenth Amendment’s mandate that all citizens receive "equal protection" under the law. The Court then began throwing out the states’ generalized establishments, most famously in the school prayer cases of the early 1960s. Meanwhile, under the influence of the Cold War, Congress was busy creating additional minor federal establishments-instituting a National Day of Prayer, sticking "under God" in the Pledge of Allegiance, and making "In God We Trust" the national motto. And as we were reminded this year (see Michael McGough’s article in this issue), Congress has all along hired itself chaplains.

That the government should take steps to bring public institutions and occasions under the umbrella of the sacred has been normal and customary throughout most of human history. In this regard, it is noteworthy that the Court’s actual holding in Santa Fe disturbed the Chief Justice less than the "tone" of the decision, which, he claimed, "bristles with hostility to all things religious in public life." The Santa Fe school district’s program would have enabled students to decide, by majority vote, "to solemnize the event, to promote good sportsmanship and student safety, and to establish the appropriate environment for the competition"--presumably fostering just the sort of benign influence on morals that Oliver Ellsworth had in mind two centuries ago.

In fact, the Court’s various bans on school prayer--whether in the classroom, at graduation ceremonies, or on the football field--have never enjoyed the support of a majority of Americans, especially in places like Texas. A 1999 Scripps Howard poll found 82 percent of Texans agreeing that public school students should be allowed to lead prayers over the public address system before athletic events. After the Santa Fe decision, local news polls in Texas showed that more than 70 percent of respondents thought pre-game prayers should be allowed.

A handful of conservative opinion writers around the nation went along with the polls. "[I]f a student wants to express a religious thought, even if it is over a public address system, that should be permitted," declared Berl Falbaum of the Detroit News. "We have gone so far in restricting the majority’s rights that it is no longer a case of balancing the rights of a majority against the rights of minority," wrote Dennis Byrne of the Chicago Sun-Times. "It now is a matter of balancing the rights of a majority against the ‘feelings’ of a minority." Santa Fe, according to Don Feder of the Boston Herald, continued the Court’s "ritual mutilation of the First Amendment."

Yet across the country, editorial opinion was solidly arrayed on the other side. A frequently made point was that the case had been brought not by secularists but by Catholic and Mormon families who resented the imposition of the community’s prevailing evangelical Protestantism on their children.

In Texas, support for the Santa Fe decision ranged from the dailies in Dallas, Fort Worth, Austin, Houston, and San Antonio on down to the likes of the Galveston County Daily News, the Harlingen Valley Morning Star, and the Baytown Sun--papers that arguably have a better feel for the power of community religious pressure in a place like Santa Fe than columnists in Detroit, Chicago, and Boston.

One hundred miles northeast of Dallas in Lamar County, where Baptists count for over 60 percent of churchgoers, Catholics less than 3 percent, and Mormons no percent, the Paris News (circ. 11,498) explained, "For most, it looked as if the Supreme court was dealing another blow to religion, despite the fact this country was founded on freedom of religion.

"But the Supreme Court took the only course it had, realizing that this country is made up of many religions and many beliefs. To put one in a position to be dominant over another--even in prayer at football games--would not be right."

Madison would have been pleased.