Peter N. Herndon
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“Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, … I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”
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President Thomas Jefferson, 1802
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“In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them?…. Religion itself may become a motive to persecution and oppression.”
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James Madison, 1787
As my history students discuss the Bill of Rights, and specifically the First Amendment, I have found that they are often confused about the meaning of the Establishment Clause and how the concept of “separation of church and state” came about. They often ask me, “Mr. Herndon is it all right to discuss religion in a public school?” I find that there is usually a great deal of student interest in the subject of religion in schools, and also a fair amount of ignorance about what the law says on the subject. In July, 2002, the Ninth Circuit Court of Appeals in California sparked a firestorm of criticism when it ruled that the phrase “under God” which was added to the Pledge of Allegiance in 1954, was in violation of the separation of church and state and therefore can no longer be repeated in schools. On May 17, 2004, the first of many same-sex marriages were performed in the state of Massachusetts. Much of the opposition to this practice comes from those with deeply held religious views. Controversial contemporary social issues concerning religion’s proper place in public life are nothing new; they continue to provide social studies teachers with hot discussion topics. I personally believe that students need to be encouraged to discuss First Amendment issues; they should realize they have an important stake in knowing that their opinions and beliefs matter and deserve to be protected and respected. As students exchange ideas and opinions with their peers, they experience first hand the “free market place of ideas” which is so important in a civic education. Judge Oliver Wendell Holmes put it this way:
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“When men have realized that time has upset many fighting faiths, they
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may come to believe even more than they believe the very foundations of
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their own conduct that the ultimate good desired is better reached by free trade
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in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market….That at any rate is the theory of our Constitution.” (dissenting opinion in
Abrams v. United States
, 1919)
To provoke student interest in the subject of religious issues in public schools, we will begin with a lesson on the issues surrounding the Pledge of Allegiance and the words “under God.” According to California atheist Michael Newdow, the plaintiff in the case, “Congress never intended to force people to worship a religion that they don’t believe in.” When the Elk Grove Unified School District School Board refused his request to remove the pledge from the schools’ daily routine, he filed a lawsuit against the school district on behalf of his second grade daughter. The Elk Grove school superintendent appealed the case to the United States Supreme Court upon learning of the 9th Circuit Court’s verdict in favor of the plaintiff declaring the pledge unconstitutional. Reaction on the federal level was swift. Congress voted 416-3 condemning the decision, and the Senate was unanimous in its disapproval; the President called the ruling “ridiculous,” as did many citizens around the country. The majority, it seems, had spoken its overwhelming opposition to the 9th Circuit Court’s ruling. Yet, the incident raises an important question for students of history and civics. The issue is this: is it possible that nine men and women in black robes who sit on the United States Supreme Court should decide for the nation that the President, the Congress and a majority of citizens are wrong and the words “under God” must be removed under the separation of church and state doctrine? This question illustrates a problematic feature of our constitutional system, the separation of powers, and the principle of judicial review. Isn’t our American democracy supposed to be about the majority? One offended father in California who claims that his daughter’s daily exposure to the current pledge is a violation of his religious convictions has already convinced a California court that he is correct and the majority is wrong. Does this seem right? Is there a major flaw in our constitutional system? Discussion of the opposing points of view raised in the California flag case should be a valid way to approach the history of establishment cases that have affected public schools and public school children in the United States.
Most Americans today agree that the United States should not have an established church and are opposed to religious persecution in any form. There is still disagreement among citizens on the matter of one’s freedom to exercise religious beliefs on the one hand, and our government’s “wall of separation” of church and state on the other. Nowhere has this debate played out more dramatically than in the schools of America. My curriculum unit will explore some of the history behind the current debate about religious practices and the public schools and just how the “wall of separation” has been applied in various Supreme Court cases over the past half century.
