The Constitution: Room for Objections & Doubts

Few rulings ever handed down by the U.S. Supreme Court stirred more controversy than the 1962 and 1963 decisions banning religious observances in public schools. Beyond the questions of constitutional law lay deep emotions, and the court could have foreseen that its opinions would reverberate in public argument, that its decisions would echo through press and pulpit. It was to be expected that the court would strive to make its opinions as airtight as possible, both in law and logic. Instead, the opinions left room for many a doubt and reservation—by clergymen, by parents, and by constitutional lawyers.

Last week, in papers delivered at a conference on Religious Freedom and Public Affairs at the University of Chicago Law School, three constitutional law experts from three different law schools raised objections to the rulings. The misgivings were all the more impressive because the organization that sponsored the gathering, the National Conference of Christians and Jews, had never expressed any opposition to the court’s decisions.

Battle-Scarred Question. The Supreme Court based its decisions on the very first provision of the First Amendment: “Congress shall make no law respecting an establishment of religion.” Required prayers or Bible readings in public schools, the court held, amount to an “establishment.” Since the schools concerned in the cases were not operated by the Federal Government, the decisions involved the old constitutional ar gument of how far the Bill of Rights, which originally applied only to federal actions, carries over to the states. It was on this battle-scarred question that the professors in Chicago took issue with the court.

Columbia’s Professor Harry W. Jones maintained that it takes a stretchingof history to apply the First Amendment ban on “establishment” to state actions. At the time the Bill of Rights was ratified, several states had established churches, and one purpose of the “establishment clause,” as lawyers call it, was “to prohibit the Federal Government from interfering with existing church-state arrangements in the states.” Jones pointed out that the wording—”no law respecting an establishment of religion”—would apply “as clearly to a congressional statute interfering with existing state establishments as to a congressional statute establishing a national church.”

Unsound Doctrine. All constitutional authorities agree that some parts of the Bill of Rights do apply to state actions. The constitutional conduit linking the Bill of Rights with the states is the 14th Amendment provision that no state may “deprive any person of life, liberty or property without due process of law.” This formula clearly bars a state from, say, passing a law that abridges freedom of speech. But does it also bar “an establishment of religion” by a state? Yes, said the Supreme Court. No, said some of the experts at Chicago —at least not to the broad extent assumed in the Supreme Court decisions. For a Bill of Rights provision to be unmistakably applicable to state actions, “life, liberty or property” must in some way be involved. The school-prayer and Bible-reading cases were concerned with neither life nor property. That left only liberty.

But the Supreme Court decisions were not based on any finding that schoolchildren had been deprived of liberty. Lawyers for the suing parents had indeed contended that the children were under subtle social pressures to participate in prescribed religious exercises in their schools, and that these pressures impaired liberty. But that line of argument did not make much impression on the court. In effect, the court held that any required religious exercise in a public school is unconstitutional—whether or not liberty is infringed. In last June’s Bible-reading case, Associate Justice Tom Clark’s majority opinion made the point explicit. A suit against “an establishment of religion” by a state, said Clark, does not require any proof that “particular religious freedoms are infringed.”

That doctrine is “flagrantly unsound,” said the University of Chicago’s Professor Kenneth Gulp Davis. “The only way a state can violate the establishment clause,” he said, “is by depriving a person of ‘liberty.’ ” The University of Pennsylvania’s Dean Jefferson B. Fordham was disturbed about the same point. Justice Clark’s opinion, he said, failed to explain how religious exercises could be unconstitutional “without any element of compulsion.”

With eminent authorities still questioning the court’s stand, the unconstitutionality of religious exercises in public schools can hardly be regarded as settled once and for all. The vitality of the argument is an eloquent reminder that from time to time even the Supreme Court finds reasons to reverse or revise its own decisions.