Church, state, and the Rehnquist Court: the Court is doing what the Framers never did; build an impregnable wall between church and state.

WHEN Clarence Thomas took his place on the Supreme Court, making the 1991-92 session the first one dominated by Reagan-Bush appointees, many expected the newly constituted Rehnquist Court to perform a historical re-examination of the doctrine of an "impregnable wall" between church and state. A suitable case was pending-Lee v. Weisman, in which the Court was asked to determine whether a non-sectarian invocation of God at the graduation ceremony of a public middle school in Providence, Rhode Island, violated the Constitution.

In a surprise 5 to 4 split decision handed down in June, the Court decided that it did. The key vote was most likely that of Justice Kennedy, who wrote the opinion of the Court. Kennedy's opinion several times asserted that the only issue before the Court was the constitutionality of prayer in public schools. The Court's decision was compelled, wrote Justice Kennedy, "[by] the controlling precedents as they relate to prayer and religious exercise in primary and secondary public schools."

The fountainhead of these precedents is a 1947 case called Everson v. Board of Education, in which the Court first maintained that the Constitution was intended to, and still does, require a virtually absolute separation of church and state. "In the words of Jefferson," wrote Justice Hugo Black for the Everson majority, "the clause against establishment of religion by law was intended to erect a wall of separation between church and state .... [t]hat wall must be kept high and impregnable. We could not approve the slightest breach." Although the justices in Everson disagreed (5 to 4) on the disposition of the case, all agreed that the Constitution required virtually absolute separation.

This doctrine was not challenged by any sitting Justice for 38 years--until Justice Rehnquist (now the Chief Justice), in a dissenting opinion in Wallace v. Jaffree (1985), called for a reexamination  of all Establishment Clause case law beginning with Everson. Specifically, Rehnquist challenged the version of history promulgated in Everson, which all Court majorities since have used to legitimize their church-state decisions. For Rehnquist, the historical evidence was clear, that the Founding Fathers and the Framers of the First Amendment did not construe the Establishment Clause as absolutely prohibiting government from using sectarian means to reach constitutional secular goals. Rehnquist, in Wallace v. Jaffree, called upon the Court to consider carefully all the historical evidence, and finally to probate it, even if the outcome ran counter to the "impregnable wall" metaphor.

Nor was Justice Rehnquist a lone voice in the wilderness. In a subsequent case that term, Grand Rapids School District v. Ball (1985), Justice White, who also dissented in Wallace v. Jaffree, took the position that he too would be willing to review the Establishment Clause's history to see if it supported the sweeping prohibitions of Everson and its progeny.

Second Chance

IN Lee v. Weisman, the Court had the opportunity to inquire anew into the meaning and intent of the religion clauses of the First Amendment, examining the events that occasioned James Madison's introduction of the Amendment in the first House of Representatives in 1789. Several of the State Ratifying Conventions had urged greater protection of individual liberty, especially religious liberty. Specifically, the Maryland Ratifying Convention had proposed an amendment stating: "That there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty."

The Virginia Ratifying Convention proposed a "Declaration or Bill of Rights" as amendments to the Constitution, of which Article Twenty stated, among other things, "that no particular religious sect or society ought to be favored or established, by law, in preference to others." The New York Convention similarly declared: "That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established, by law, in preference to others." Resolutions passed by the North Carolina and Rhode Island Conventions echoed Virginia's "Bill of Rights."

Madison's first draft of what ultimately became the Establishment Clause clearly reflects these specific concerns: "... the civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established .... " Even after Madison's draft was changed by congressional-committee deliberations, when he was asked in debate on the House floor what the reworded Clause meant, the House record indicates that Madison said that he "apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. . . . [T]o prevent these effects he presumed the amendment was intended, and he thought it as well expressed as the nature of the language would admit." Further, Madison thought "that the people feared one sect might obtain pre-eminence, or two combine together, and establish a religion to which they would compel others to conform."

This evidence all supports the interpretation that the First Amendment was intended to forbid the establishment of a national church or religion, or the placing of any one religious sect, denomination, or tradition into a preferred legal status. It offers no support to those, like Justice Black, who claim that the First Amendment erected a "high and impregnable" wall between church and state.

Louder than Words

WHAT TRULY makes the Supreme Court's "original intent'' arguments in Everson absurd is some of the words and deeds of the very people who wrote the religion clauses in the First Congress, and the actions of our early Presidents and Congresses.

If the basic purpose of the Establishment Clause was "to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion," as Justice Rutledge wrote in his dissenting opinion in Everson, then why did the first House of Representatives, after voting up the amendment, ask President Washington to issue a proclamation recommending to the people of the United States "a day of public thanksgiving and prayer, to be observed by acknowledging, with grateful hearts, the many signal favors of Almighty God"?

It was certainly not a commitment to absolute separation of church and state which led President Washington to issue the new nation's first Thanksgiving Day Proclamation. And it was not adherence to an absolute Establishment Clause when Presidents John Adams and James Madison also issued Thanksgiving Day Proclamations. (Jefferson did think they violated the Establishment Clause and federalism. Unlike his two immediate predecessors and Madison, his successor, he refused to issue them.) No commitment to absolute separation of church and state is evident in the First Congress when it set up a congressional chaplain system and voted a $500 annual salary for the Senate and House chaplains. Their principal duties were to offer audible public prayers in Congress. Did the authors of the religion amendment not know what it meant, or if they did, did they immediately proceed to violate it?

Further, no absolute interpretation of the principle of separation of church and state led President Thomas Jefferson to sign a tax-exemption bill for the churches in Alexandria County in 1802. And it was not an absolutist action when in 1803 Jefferson-one year after he wrote his famous "wall of separation" letter to the Danbury, Connecticut, Baptists--concluded a treaty with the Kaskaskia Indians which, in part, called for the United States to build them a Roman Catholic Church and pay their priest.

It seems axiomatic that the original principle of separation of church and state in the First Amendment must be one which reconciles the prohibitions of the Establishment Clause and the sectarian practices of the Republic's earliest Administrations and Congresses. A "non-absolute" interpretation of separation of church and state seems to do just that.

The crucial difference between an absolute separationist such as Justice Rutledge, and a non-absolute separationist such as Thomas Jefferson, has little to do with the goals of government. Under our amended Constitution the goals of government must be secular. On this point, I doubt that many constitutional scholars would disagree. Additionally, while the First Amendment initially prohibited a national religious establishment, the Supreme Court's incorporation of the First Amendment into the Fourteenth now similarly binds the states.

Starting with the First Congress, the concept of separation of church and state was, I believe, mainly addressed to the constitutionality of using sectarian institutions or activities associated with religion as means to achieve appropriate secular governmental goals. When the authors of the First Amendment requested President Washington to issue his first "Thanksgiving Day" Proclamation, they were pursuing a secular goal, hoping that Washington's action would help unite the nation behind the new government and the new Constitution. I submit that their intent is reasonably clear from the debate in the First House of Representatives and the content of Washington's 1789 Proclamation.

Similarly, I think that members of the First Congress voted for paid prayer in Congress because they were a religious people who thought prayer an appropriate means to reach the secular goal of enlightened legislation and policies yielding a prosperous nation and stable government.

When Thomas Jefferson thought it desirable to provide tax exemption to benevolent institutions, including churches, he did so because they were viewed as legitimate means of serving the community. And when Jefferson used the Catholic Church in the Kaskaskia Treaty to provide for friendship with those Indians and to get them to cede their lands to the United States, he did not see his act as impermissibly aiding religion.

One post-Everson decision that did recognize this point was Marsh v. Chambers (1983). In that decision, sustaining the constitutionality of the Nebraska legislature's right to a chaplain and public prayer, Chief Justice Burger, joined by Justices White, Blackmun, Powell, Rehnquist, and O'Connor, cogently argued: historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied to the practice authorized by the First Congress-their actions reveal their intent. . . . It can hardly be thought that in the same week Members of the First Congress voted to appoint and to pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable ....

Looking Ahead

EVEN THOUGH the graduation-ceremony invocation was declared unconstitutional in Lee v. Weisman, it is premature-for at least two reasons--to conclude that the Rehnquist Court will necessarily follow the Warren and Burger Courts' Establishment Clause jurisprudence. First, the majority opinion is an extremely narrow one based almost entirely on the 1962 "New York Regent's Public School Prayer" case (Engel v. Vitale) and the 1963 "Lord's Prayer and Bible Reading" cases (Abington v. Schempp and Murray v. Curlett). In Lee v. Weisman, Justice Kennedy makes clear that by deciding to uphold only these precedent cases, the Court was avoiding reconsideration of its decision in Lemon v. Kurtzman (1971), which established a prohibitive test of constitutionality: that the challenged governmental action must 1) have a secular purpose; 2) have a principal or primary effect that neither advances nor inhibits religion; and 3) not foster an excessive government entanglement with religion. Justice Kennedy's careful avoidance of Lemon probably means that there were five votes for ruling the public-school invocation unconstitutional but not five votes to reaffirm the validity of the Lemon test.

Second, the Court's majority opinion is so narrow that, Justice Kennedy specifically tells us, the Supreme Court was not required in deciding this case "to revisit the difficult questions dividing [it] in recent cases." Nor did the Court have to answer, Kennedy asserts, "questions of the definition and full scope of the principles governing the extent of permitted accommodation by the state for religious beliefs and practices of its citizens." In essence, I see Justice Kennedy saying that today the Supreme Court decides this case only and does not rule on any of the difficult church-state issues which have divided the Court and which still are open for reconsideration.

The lineup of the Court has changed since the Wallace v. Jaffree case in 1985. The dissent in Lee v. Weisman--written by Justice Scalia and joined by Chief Justice Rehnquist and Justices White and Thomas--indicates the willingness of four members of the current Court to embrace the historical evidence which would lead to a narrower definition of acts prohibited as "respecting an establishment of religion." Should this in fact be the case, any one additional vote will render an interpretation of the Establishment Clause that is much more in harmony with the words and actions of those who wrote it and added it to the supreme law of our land.

Mr. Cord, university distinguished professor at Northeastern University, is the author of Separation of Church and State: Historical Fact and Current Fiction (Baker Book House, 1988).