In the six decades since it began adjudicating issues involving religion and K-12 education, the United States Supreme Court has issued numerous opinions on various aspects of that relationship. Several of the Court's viewpoints have changed over time. It explicitly reversed itself on the constitutionality of using publicly-paid specialists in parochial schools, and dramatically changed its perspective on public funds flowing to those institutions. But the Court has never wavered on issues regarding religious activities in public schools—it has struck down every policy or program it has chosen to review. No opinion was unanimous, and rationales changed. But no result has diverged from the Court's original perspective that the Establishment Clause's brightest line ran just outside the public school grounds.This piece begins with first doctrinal, then policy reviews of the Court's nine school prayer decisions. Parts I and II analyze the decisions as constitutional doctrine, dividing them along parallel lines of time and quality. In Part I, I show that the holdings and rationales of the Court's early school prayer decisions are both sound and commendable as constitutional doctrine. Part II takes a longer look at the remaining later decisions however, and reveals a struggling Court often relying on specious, fabricated or a priori reasoning to reach the apparently inevitable, but questionable, conclusion of unconstitutionality. Part III takes up the effects of the Court's decisions on social and political policy. I argue that the early decisions, though controversial, freed America from a past of sectarian domination, while the later decisions helped sow the seeds of several related and unhappy developments, especially ones promoting the very religious divisions they purported to guard against.
Four ‘Cousins-in-Law’: (1) Substantive Due Process & State-Based Prohibition; (2) Slavery in the Federal Territory; (3) Polygamy and the Fight over Mormon Statehood; & (4) Public School Prayer & Bible Reading Decisions. Who Knew They Were ‘Related’?"
