Vol. 3, No. 2
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
In his dissent from the Supreme Courts Santa Fe Independent School District
v. Doe decision, which in June declared unconstitutional a Texas school
districts 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 courts 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 courts 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."
Rehnquists and Wills 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 committees deliberations. We know who the conferees were, however, and this
does shed some light on the question.
James Madison, representing Virginia, led the Houses three-member delegation. The
Constitutions 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
The Senate conferees included Charles Carroll, the Maryland Roman Catholic (educated by
Jesuits) who made his first public mark attacking his states support of Anglican
clergy. But the leader on the Senate side was another Connecticut man, Oliver Ellsworth,
shortly to become the nations second Chief Justice and like Sherman a pillar of
Congregationalism. Ellsworths 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 states Congregationalist establishment. It reads, in
This opinion...is 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 Connecticuts maintenance of its exclusive religious
establishment to Virginias rejection of all state support for religion. As Princeton
Universitys 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
Only after World War II did the Supreme Court officially extend the reach of the
Establishment Clause to the states, via the Fourteenth Amendments 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
McGoughs 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 Courts 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 districts 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
In fact, the Courts 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 majoritys 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 Courts "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 communitys
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
"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.