PART I I
HISTORY
Two views have been expressed regarding the interpretation of the
history surrounding the establishment clause. One view is that the word
"establishment" should be interpreted narrowly. Proponents of this view
contend that the establishment clause only prohibts only Congress, not the
states from establishing a religion. R. Cord, Separation of Church and
State: Historical Fact and Current Fiction (1982) ; J.McCellan, The Making
and Unmaking of the Establishment Clause, A Blueprint for Judicial Reform.
(P. McGuigan and R. Rader eds. n.d. 1981); E. Corwin, The Supreme Court as
a National School Board, 14 Law and Contemporary Problems. 3 (1949)
A second view results in a much broader interpretation of the
establishment clause. Proponents of this view contend that the
establishment clause prohibits any governmental support of religion on the
state or federal level. L. Levy, Judgments: Essays on American
Constitutional History (1972); L Pfeffer, Church, State, and Freedom, (rev.
ed. 1967); R. Dixon, Religion, Schools and the Open Society, 13 Journal of
Public Law 267, 278 (1964); Katz, Freedom of Religion and State Neutrality,
20 U.Chi.L. Rev. 426, 438 (1953). The Supreme Court has supported the
broader view. See Engel v. Vitale, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d
601 (1962); Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91
L.Ed. 711 (1946); H. Chase & C. Ducat, Constitutional Interpretation,
Cases-Essays-Materials, 1384 (2ded. 1979).
The appellees argue that historically the first amendment to the
United States Constitution was intended only to prohibit the federal
government from establishing a national religion! Appellees, additionally,
argue that historical evidence does not support the fourteenth amendment's
incorporation of the first amendment. The appellee and the district court
rely heavily on the research of historians. These historians believe the
Supreme Court misread the history surrounding the establishment clause.
They submit that the establishment clause has a dual purpose (1) to
guarantee the people of this country that the federal government will not
impose a national religion, and (2) to guarantee states the right to define
the meaning of religious establishment under their state constitutions and
laws.
The Supreme Court, however, has carefully considered these
arguments and rejected them. See, e.g., School District of Abington
Township v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963);
Engel, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962); McGowan v.
Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); McCollum v.
Board of Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 649 (1948);
Everson, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1946). In Everson, the
Court presented its careful review of the history surrounding the
establishment clause. Justice Black wrote:
The "establishment of religion" clause
of the First Amendment means at least
this: Neither a state nor the Federal
Government can set up a church. Nei-
ther can pass laws which aid one religion,
aid all religions, or prefer one religion
over another.... In the words of Jef-
ferson, the clause against establishment
of religion by law was intended to erect
"a wall of separation between church
and state."
Everson, 330 U.S. at15-16, 67 S.Ct. 511-512. Justice Rutledge, while
dissenting on other grounds in Eversin, observed that:
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4. The Intervenors , Douglas T. Smith, et. al., (more than 500 teachers
and parents) basically offered the same arguments as the appellees.
1531
Not simply an established church,
but any law respecting an establishment of
religion is forbidden. The Amendment
was broadly but not loosely phrased....
The Amendment's purpose was not to
strike merely at the official establishment
of a single sect, creed or religion, outlaw-
ing only a formal relation such as had
prevailed in England and some of the
colonies. Necessarily it was to uproot all
such relationships. But the object was
broader than separating church and state
in this narrow sense. It 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.
"Religion" appears only once in the
Amendment. But the word governs two
prohibitions and governs them alike. It
does not have two meanings, one narrow
to forbid "an establishment" and another,
much broader, for securing "the free ex-
ercise thereof." "Thereof" brings down
"religion" with its entire and exact con-
tent, no more and no less, from the first
into the second guaranty, so that Con-
gress and now the states are as broadly
restricted concerning the one as they are
regarding the other.
Everson, 330 U.S. at 31-32, 67 S.Ct. at 519. Justice Jackson, while
dissenting on other grounds, also noted that:
There is no answer to the proposition .. .
that the effect of the religious freedom
Amendment to our Constitution was to
take every form of propagation of reli-
gion out of the realm of things which
could ... be made public business ....
This [religious] freedom was first in
the Bill of Rights because it was first in
the forefathers' minds; it was set forth in
absolute terms, and its strength is its
rigidity.
Everson, 330 U.S. at 26, 67 S.Ct. at 516. Although differing on the outcome
of the case, all Justices perceived the history of the establishment clause
as prohibiting any government involvement with religion. This unanimity
also existed regarding the history of the first amendment's applicability
to the states through the fourteenth amendment.
Appellees suggest that no documentary evidence exists supporting
the claim that the fourteenth amendment was intended to apply the
establishment clause of the first amendment to the states. To illustrate
this point, the appellees turn to the rejection of the "Blaine amendment."
5 In 1876, Congress considered a resolution for the adoption of a
constitutional amendment expressly forbidding a state from making any law
relating to religion. The resolution failed in the Senate. See 4 Cong.Rec.
5595 (1876). The appellees argue that this refusal to pass the Blaine
amendment is indicative of Congress's understanding that the fourteenth
amendment left undisturbed the state's freedom to establish religion. This
argument is the same as that urged and rejected in McCollum. 333 U.S. at
211 n. 7, 68 S.Ct. at 465 n. 7; McGowan, 366 U.S. 420, 81 S.Ct. 1101, 6
L.Ed.241 393 (1961). Chief Justice Warren, writing for the Court, stated:
"[T]he First Amendment, in its final form, did not simply bar a
congressional enactment establishing a church; it forbade all laws
respecting an establishment of religion. Thus, this Court has given the
Amendment a 'broad interpretation
----------------------------------------------------
5. Title 4 Cong.Rec. 5580 (1876) states, in pertinent part, that:
No State shall make any law respecting an establishment of religion, or
prohibiting the free exercise thereof; and no religious test shall ever be
required as a qualification for any office of public trust under any State.
No public property, and no public revenue of, nor any loan of credit by or
under the authority of the United States, or any State ... shall be
appropriated to, or made or used for, the support of any school,
educational or other institution, under the control of any religious or
anti-religious sect ... wherein the particular creed or tenets of any
religious or anti-religious sect ... shall be taught; and no such
particular creed or tenets shall be read or taught in any school or
institution supporting in whole or in part by such revenue or loan of
credit; and no such appropriation or loan of credit shall be made to any
religious or anti-religious sect ... to promote its interests or tenets.
This article shall not be construed to prohibit the reading of the Bible in
any school or institution . . .
1532
.. . . in light of its history and the evils it was designed forever to
suppress.' " McGowan, 366 U.S. at 441-42, 81 S.Ct. at 1113 (emphasis in
original). In Engel v. Vitale, the Court meticulously re-examined the
history surrounding the first and fourteenth amendments and reaffirmed its
view. The Court concluded that:
By the time of the adoption of the
Constitution, our history shows that there
was a widespread awareness among
many Americans of the dangers of a un-
ion of Church and State.... The First
Amendment was added to the Constitu-
tion to stand as a guarantee that neither
the power nor the prestige of the Federal
Government would be used to control,
support or influence the kinds of prayer
the American people can say—that the
people's religions must not be subjected
to the pressures of government for
change each time a new political adminis-
tration is elected to office. Under that
Amendment's prohibition against govern-
mental establishment of religion, as rein-
forced by the provisions of the Four-
teenth Amendment, government in this
country, be it state or federal, is without
power to prescribe by law any particular
form of prayer which is to be used as an
official prayer in carrying on any pro-
gram of governmentally sponsored reli-
gious activity.
Engel, 370 U.S. at 429-30, 82 S.Ct. at 1266. The interplay between the
first and fourteenth amendments engages scholars in endless debate. We are
urged to remain mindful of the uses of history. History provides
enlightenment; it appraises courts of the subtleties and complexities of
problems before them. See Wofford, J., The Blinding Light: The Uses of
History in Constitutional Interpretation, 31 Univ. of Chi.L.Rev. 502, 532
(1964). The important point is: the Supreme Court has concluded that its
present interpretation of the first and fourteenth amendments is consistent
with the historical evidence.
PRECEDENT
Under our form of government and long established law and custom,
the Supreme Court is the ultimate authority on the interpretation of our
Constitution and laws; its interpretations may not be disregarded.
[1] Although the district court recognized the importance of
precedent, it chose to disregard Supreme Court precedent. The district
court attempted to justify its actions by discussing the limited exceptions
to the doctrine of stare decisis. The doctrine of stare decisis pertains to
the deference a court may give to its own prior decisions. See Hertz v.
Woodman, 218 U.S. 205, 212, 30 S.Ct. 621, 622, 54 L.Ed. 1001 (1910). The
stare decisis doctrine and its exceptions do not apply where a lower court
is compelled to apply the precedent of a higher court. See 20 Am.Jur.2d
Courts § 183 (1965).
[2] Federal district courts and circuit courts are bound to adhere
to the controlling decisions of the Supreme Court. Hutto v. Davis, 454 U.S.
370, 375, 102 S.Ct. 703, 705-706, 70 L.Ed2d 556 (1982); Steil v.
Savannah-Chatham County Board of Education, 333 F.2d 55, 61 (5th Cir.),
cert. denied, 379 U.S. 933, 85 S.Ct. 332, 13 L.Ed.2d 344 (1964); Booster
Lodge No. 405, Mt. *****'n of M. & A.W. v. NLRB, 459 F.2d 1143, 1150 n. 7
(D.C.Cir.1972). Justice Rehnquist emphasized the importance of precedent
when he observed that "unless we wish anarchy to prevail within the federal
judicial system, a precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts may think
it to be." Davis, 454 U.S. at 375, 102 S.Ct. at 706. See Also, Thurston
Motor Lines, Inc. v. Jordan K. Rand, Ltd., — U.S. , 103 S.Ct. 1343,
75 L.Ed.2d 260 (1983) (the Supreme Court, in a per curiam decision,
recently stated: "Needless to say, only this court may overrule one of its
precedents.) The old Fifth Circuit articulated these positions when it
stated that "no inferior federal court may refrain from acting as required
by [a Supreme Court's] decision even if such a court should con-
1533
clude that the Supreme Court erred as to its facts or to the law." Steil,
333 F.2d at 61. Judicial precedence serves as the foundation of our federal
judicial system. Adherence to it results in stability and predictability.
If the Supreme Court errs, no other court may correct it.
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To be continued
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