Pepperdine Law Review Volume 38 Issue 4 Article 1 4-20-2011 Constitutional Divide: The Transformative Significance of the School Prayer Decisions Steven D. Smith Follow this and additional works at: https://digitalcommons.pepperdine.edu/plr Part of the First Amendment Commons Recommended Citation Steven D. Smith Constitutional Divide: The Transformative Significance of the School Prayer Decisions, 38 Pepp. L. Rev. Iss. 4 (2011) Available at: https://digitalcommons.pepperdine.edu/plr/vol38/iss4/1 This Article is brought to you for free and open access by the Caruso School of Law at Pepperdine Digital Commons. It has been accepted for inclusion in Pepperdine Law Review by an authorized editor of Pepperdine Digital Commons. For more information, please contact [email protected], [email protected], [email protected]. Constitutional Divide: The Transformative Significance of the School Prayer Decisions Steven D. Smith* I. INTRODUCTION II. CONTINGENCIES AND UNCERTAINTIES A. The Conclusion: Engel B. The Explanation: Schempp C. Unanswered Questions III. A CRAZY-QUILT, QUASI-CONSTITUTIONAL TRADITION A. The PerennialContenders B. Incompatible but (Sometimes) Indistinguishable C. Patterns ofDominance? D. The Conceptions as Quasi-Constitutional E. The Virtues of Quasi-Constitutionalism 1. Quasi-Constitutionalism as the Default Position 2. The Positive Advantages of Quasi-Constitutionalism F. On the Eve of the School PrayerDecisions IV. THE SIGNIFICANCE OF THE SCHOOL PRAYER DECISIONS A. How the Decisions Transformed ConstitutionalDoctrine 1. Secularism as the Doctrinal "Test" 2. The Significance of the Public Schools 3. The Importance of Prayer B. Why the Significance of the School PrayerDecisions Went Largely Unnoticed (by Their Supporters) V. TRANSFORMATIONS: THE CONSEQUENCES OF THE SCHOOL PRAYER DECISIONS A. Establishment ClauseJurisprudence 1. Subverting Everson * Warren Distinguished Professor of Law, University of San Diego. I thank Larry Alexander, Hugh Cawthome, Chris Eberle, Rick Garnett, Abner Greene, Andy Koppelman, Jessica Lowe, Wayne McCormack, David McGowan, Mike Newdow, Michael Perry, and George Wright for helpful comments on earlier drafts. I also benefitted from the commentary of participants in the Annual Law and Religion Roundtable and in a workshop at the University of Utah. 945 2. The Emergence of the "No Endorsement" Doctrine B. ConstitutionalLaw Outside the Establishment Clause C. Divided Discourse 1. The Historical Divide 2. The Cultural Divide VI. CONCLUSION: THE IRONIES OF THE SCHOOL PRAYER DECISIONS I. INTRODUCTION Everson v. Board of Education' was the visionary (or perhaps foolhardy) granddaddy of modem Establishment Clause jurisprudence; the school prayer decisions-Engel v. Vitale2 and Abington School District v. Schempp 3-were among that decision's dutiful descendants. Everson founded the modem enterprise; Engel and Schempp inherited Everson's legacy and faithfully maintained and built the family business. To change the metaphor, Everson was the primary proof; the decisions invalidating prayer in the public schools were among the virtually irresistible corollaries. Or at least so goes a standard understanding of modem Establishment jurisprudence.4 Everson is, as Douglas Laycock declares, "[t]he most important establishment clause case." 5 As a natural result, in professional constitutional discourse (as distinguished from politics and popular culture), Everson has been the more examined, and also embattled, decision.6 By contrast, though promptly and enduringly unpopular with the general public,7 the school prayer decisions have from the beginning generally 1. 330 U.S. 1(1947). 2. 370 U.S. 421 (1962). 3. 374 U.S. 203 (1963). 4. See John C. Jeffries, Jr. & James E. Ryan, A PoliticalHistory of the Establishment Clause, 100 MICH. L. REV. 279, 287 (2001) (asserting that "Everson began the modem edifice of separation of church and state" and that "[flor half a century, the Supreme Court followed Everson's lead"). 5. 1 DOUGLAS LAYCOCK, A Survey of Religious Liberty in the United States, in RELIGIOUS LIBERTY: OVERVIEWS AND HISTORY 272,288 (2010). 6. See, e.g., EVERSON REVISITED: RELIGION, EDUCATION, AND LAW AT THE CROSSROADS (Jo Rende Formicola & Hubert Morken eds., 1997). 7. Writing at the time, Philip Kurland observed that "[t]he immediate reaction to Engel was violent and gross." Philip B. Kurland, The School Prayer Cases, in THE WALL BETWEEN CHURCH AND STATE 142, 142 (Dallin H. Oaks ed., 1963). Bruce Dierenfield reports that Engel provoked "the greatest outcry against a U.S. Supreme Court decision in a century." BRUCE J. DIERENFIELD, THE BATTLE OVER SCHOOL PRAYER: HOW ENGEL v. VITALE CHANGED AMERICA 72 (2007). At an annual Conference of State Governors, every governor except New York's Nelson Rockefeller condemned Engel and urged passage of a constitutional amendment to overturn it. Id at 146; see also ROBERT S. ALLEY, WITHOUT A PRAYER: RELIGIOUS EXPRESSION IN PUBLIC SCHOOLS 28, 230 (1996) (recalling that the school-prayer decisions "sent shock waves through large portions of the citizenry" and "caused an enormous uproar against the Supreme Court"); JULIA C. LOREN, ENGEL V. VITALE: PRAYER IN THE PUBLIC SCHOOLS 7, 61 (2001) (observing that "[t]he public outcry against the Court's ruling was swift and loud" and that "newspaper editorials across the country denounced the ruling"). Lucas Powe notes that "Engel produced more mail to the Court than any previous case 946 [Vol. 38: 945, 2011] ConstitutionalDivide PEPPERDINE LAW REVIEW enjoyed a virtual consensus of confident support among constitutional scholars and cultural elites.8 If Everson with its approval of the "wall of separation" was correct-and this is of course a contested if-then the school prayer decisions were pretty much inevitable.9 So it is commonly supposed. In this article, however, I will argue that these common assessments are mistaken. Controversial though it has been, Everson was in an important sense an expression of one deeply-rooted (albeit contested) but relatively concrete and confined American political tradition-the tradition, which Everson affirmed but distinguished, of denying public financial assistance to churches or to "sectarian" schools. The school prayer decisions, by contrast, were a constitutional turning point, working to transform not only the jurisprudence of religious freedom but constitutional discourse generally, and indeed the American self- understanding. Far from being an automatic corollary of Everson, the school prayer decisions quietly subverted and fundamentally redirected Everson's teachings. Without denying the significance of Everson, therefore, I will suggest that the school prayer decisions were the more momentous of the cases. If the outcome of the cases today seems foreordained (to legal observers, at least) and not especially transformative, that fact is in part a manifestation of the decisions' success in reshaping constitutional understandings in their own image. By helping to establish a larger (and few write to say what a good job the justices are doing)." LUCAS A. POWE JR., THE SUPREME COURT AND THE AMERICAN ELITE, 1789-2008, at 260 (2009). This opposition, though perhaps less strident today, has not disappeared; thus Kent Greenawalt reports that "[a) large segment of the American population persists in condemning the Supreme Court for taking religion out of schools and thus contributing to a secular, immoral, materialist cultural ethos." KENT GREENAWALT, DOES GOD BELONG IN PUBLIC SCHOOLS? 9 (2005); see also Mary C. Segers, The Religious Equality Amendment and Voluntary School Prayer, in EVERSON REVISITED: RELIGION, EDUCATION, AND LAW AT THE CROSSROADS, supranote 6, at 192-98. 8. See Jeffries & Ryan, supra note 4, at 322 ("The broad consensus of elite opinion on this issue ... was demonstrated when Leo Pfeffer, counsel for the American Jewish Congress, rounded up 110 law school deans and professors of law and political science to sign a letter to the Senate Judiciary Committee supporting Engel and opposing school-prayer amendments on the ground that such observances in public schools would endanger 'the institutions which have preserved religious and political freedom in the United States."'). Not all leaders supported the decision, however; Erwin Griswold, Harvard Law School Dean and later Solicitor General under Presidents Johnson and Nixon, was critical. DIERENFIELD, supra note 7, at 136. 9. See Jeffries & Ryan, supra note 4, at 326-27; cf GREENAWALT, supra note 7, at 39 ("To understand why the decisions about prayer and Bible reading were so one-sided, we look to the Everson case."); William Bentley Ball, Litigating Everson After Everson, in EVERSON REVISITED: RELIGION, EDUCATION, AND LAW AT THE CROSSROADS, supra note 6, at 222 (describing Schempp as "complementary to Everson"). Mary Segers reports that "[t]he connection between the 1947 Everson decision and the Court's school prayer prohibitions in Engel and Schempp is clear and well acknowledged by scholars of Supreme Court jurisprudence." Segers, supra note 7, at 193. 947 constitutional framework within which they themselves appear virtually inevitable, the decisions have been in a sense self-validating. And yet this assessment cannot be the whole story because the momentous quality of the decisions also seems to have been largely invisible even to those who rendered those decisions. Although the general public immediately perceived the school prayer decisions as radical,o the Justices themselves seem for