Peter N. Herndon
Lesson One: Are Moment of Silence Laws Constitutional? Wallace v. Jaffree (1985)
DAY ONE
Objectives:
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1. To examine an Alabama state law that would introduce a moment of
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silence in public school classrooms
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2.
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To discuss the difference between the “establishment of religion” and the
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“free exercise” clauses
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3.
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To evaluate the motives of lawmakers in passing such a law
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4.
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To evaluate testimony by those opposing and supporting such a law
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5.
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To debate school prayer from the point of view of religious accommodationists and religious separationists
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Materials:
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1. One-page narrative containing background of
Wallace v Jaffree
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2. Handout: Witness Testimony chart, one for each student
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3.
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Handout: Role Cards for individuals giving testimony before the court
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4.
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Handout: Justice Stevens majority opinion and Justice Rehnquist’s
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dissenting opinion in the Wallace v. Jaffree case
Procedures:
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1. A panel of 3 appeals judges prepares to hear testimony from witnesses
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in the case;
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2. Witnesses give testimony using role cards prepared by the teacher;
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3.
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Following testimony, students give a written evaluation of the law using information from role play testimony; students keep track using their Testimony Charts
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Teacher Preparation:
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1.
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Copy of the Alabama state law of 1981 mandating a “moment of silence or
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voluntary prayer” permitting teachers to lead students in a prayer to God as
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“the Creator and Supreme Judge of the World.”
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2.
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One page summary of
Wallace v. Jaffree
and Witness Testimony chart listing witnesses who testify (see below)
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3.
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Role Cards for witnesses (see below)
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Witnesses:
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1.
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Chioke Jaffree: student who was upset by opening exercise prayers in his
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classroom and did not like the choice of leaving the classroom during prayers;
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2.
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Ishmael Jaffree: Chioke’s father, an agnostic who believes that the prayers are
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a violation of the separation of church and state and his efforts to raise his
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children as “free thinkers;”
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3.
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Senator Donald Holmes, sponsor of the law who admitted to establish prayer in the Schools was his purpose in introducing the law;
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4.
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Jean Baker, ACLU attorney who opposes the moment of silence laws as a violation of the establishment clause of the First Amendment;
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5.
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Barry Lynn, Americans United for Separation of Church and State who agrees with Baker;
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6.
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Dan Alexander, president of the Mobile Alabama school board who agrees with the need for prayer in schools;
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7.
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Rev. Fred Wolfe, Baptist pastor of a Mobile church who believes no one should be offended by the moment of silence with prayer as an option;
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8.
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Other witnesses (optional) Chioke’s teacher, classmates, State Governor, etc.
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Student Writing Assignment: Discuss the pros and cons of the 1981 Alabama law.
DAY TWO:
Procedures: Students discuss their written evaluations of the law and present it to the panel of judges;
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1.
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While the judge’s consult on their opinion, students are given copies of two Supreme Court justices’ opinions from the
Jaffree
case to discuss and evaluate
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(1) Justice Stevens’ opinion for the Court, declaring the Alabama law must respect the rights of those not in agreement with the Christian faith, including atheists;
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(2) Justice Rehnquist’s dissenting opinion which refers to the “original intent” of the framers of the Constitution to favor prayer in the public arena
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2. After discussion, student will hear opinions from the panel of 3 judges
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Student Writing Assessment:
“Under what conditions, if any, should “moment of silence” laws be allowed in schools?” Discuss.
DAY THREE:
Procedures:
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1. Divide the class into two groups.
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(1)
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Group One is given Justice Stevens’ majority opinion with some
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guiding questions. They represent the “protected minority” point of view; (separationists)
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(2)
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Group Two is given Justice Rehnquist’s dissenting opinion which represents a majority of voters in Mobile, Alabama who believe that there is nothing wrong with school prayer, and is a right to be exercised. (accommodationists)
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2. Remind students of the differing views of accommodationists and
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separationists in the continuing debate over religious freedom in schools.
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3. Have the two groups debate the following:
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“Under the doctrine of separation of church and state:”
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(1) Should Student-led prayers at school assemblies be allowed?
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(2)
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Should courses that study religions be allowed?
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(3)
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Should a school club to study the Bible be allowed?
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(4)
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Should a graduation speaker be allowed to mention God or the Bible or their personal faith in their remarks?
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(5)
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Should schools be allowed to have a daily moment of silence for prayer or meditation?
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4.
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The teacher should appoint a moderator to keep things moving. If the teacher wishes, appoint a group of students to judge the arguments and decide on a winning side. (allow each side to argue, then a short rebuttal)
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5.
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Have the class discuss which arguments were the most convincing.
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6.
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Remind students that although the Supreme Court continues to make decisions about the Establishment Clause and the tension with the Free Exercise clause, people still have their own personal points of view and may express them freely.
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Student Writing Assessment: Write a story, real or imagined, in which the rule of the majority violates a minority’s rights under the Constitution and give a legal solution.
Sources: (see Student Bibliography)
“
Vital Issues of the Constitution.
” Student Workbook has a summary of
Wallace v.
Jaffree
and a set of questions about the case.
One Nation Under God?,
published by the Close Up Foundation, includes video.
Lesson Two:
Should “Under God” Remain in the Pledge of Allegiance? Newdow v. U.S. Congress
DAY ONE
Objectives:
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1.
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To study a contemporary Circuit Court case,
Newdow v. U.S.
Congress
(2002), the case that challenged the “under God” phrase in the Pledge of Allegiance;
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2.
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To examine the complaint by the plaintiff and the reason for the lawsuit
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3.
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To critique the Court Opinion by Judge Goodwin and his legal logic under the “separation of church and state” doctrine
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4.
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To evaluate the Partial Dissent by Judge Fernandez and his legal reasoning
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5.
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To discover the importance of previous court decisions (legal precedents) in deciding court cases and the application of certain legal tests (i.e. the “Lemon test”)
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Materials:
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1.
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The United States Court of Appeals for the Ninth Circuit decision of
Newdow v. U.S. Congress
(2002), which is available at www.findlaw.com. (links: click “fed”>”cases”>”9th Circuit”)
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2.
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Document: “Newdow Case: Guidelines for study” (See Appendix 1 below)
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3.
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Document: “Newdow Case: Majority and Dissenting Opinions” (Appendix 2)
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Procedures:
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1.
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Introduce the topic by getting student feedback on the question of the Pledge itself--its purpose, its place in history, controversies about the those refusing to say the pledge for religious reasons (refer to flag salute cases in my unit) or for any other reasons. Can people be compelled to salute the flag? What if any should the consequences be??
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2.
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Why would a parent want to “protect” his elementary school child from saying the Pledge, as Michael Newdow did in this case? Is he within his constitutional rights? What should the little girl do until the case is settled?
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3.
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Pass out the first page of the Newdow Case (page 9105 of the opinion) to the students and have them examine it. Notice who Mr. Newdow is suing (the US Congress, President Bush, the State of California, and 2 School Superintendents). Try to explain his logic; which part(ies) does it seem he can sue and which part(ies) are not liable? Discuss.
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4.
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Begin to examine together the Opinion of the Court (use Guidelines for Study document from
Appendix 1
below) and have students list terms they are unfamiliar with. Discuss the issues as they arise. (pp. 9118 to 9124)
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Written Assignment: The phrase “under God” in the Pledge, according to Newdow, violates the
Establishment Clause of the Constitution. Is he correct? Evaluate.
DAY TWO
Procedures:
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1. Review written assignments for a clear understanding of Newdow’s objections
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2.
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Continue to guide students through the Court document using the “Guidelines
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for Study” questions, examine important legal concepts and arguments in the Newdow case. Especially important are the “Lemon test” the “endorsement test” and the “coercion test” of a law that is religiously neutral in its application.
Written Assignment: According to the Court, why is the Pledge an “impermissible government endorsement of religion?” (page 9124) What arguments would you use against the Court’s opinion?
DAY THREE
Procedures:
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1.
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Review arguments for and against the removal of “under God” from the
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Pledge as a violation of the Establishment Clause of the First Amendment
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2.
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Hand out the Majority and Dissenting Opinions (Appendix 2 below) to
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students for their analysis either as a class or as a classroom debate.
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3.
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Debate: Divide students into three groups.
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(1)
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These students argue for the plaintiff using Judge Goodwin’s Majority
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Opinion.
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(2)
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These students argue for the school district using Judge Fernandez’ dissent.
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(3)
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These students serve as a panel to award points to either side and make a final “Supreme Court” decision
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Wr
itten Assessment:
Summarize the arguments, pro and con in this case, then write your own Supreme Court opinion.
Note: The U.S. Supreme Court, on June 14, 2004, ruled that atheist Newdow lacked legal standing in court and could not legally represent his daughter since he did not have legal custody. The mother, Sandra Banning, supports leaving the pledge as it is and wants her daughter to keep reciting the pledge. http://wid.ap.org/documents/scotus/040614newdow.pdf
Appendix 1: “
Newdow Case: Guidelines for Study”
To be used with the U.S. Court of Appeals 9th Circuit Court Decision
Page 9105:
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1.
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Identify “Plaintiff-appellant”
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2.
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Identify “Defendants-Appellees”
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3.
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What happened between March 14, 2002 and June 26, 2002?
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4.
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How many judges heard the case?
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5.
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How many judges gave opinions in the case?
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Page 9109--Counsell
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6.
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Notice how many lawyers were involved in the case for the plaintiff (only Newdow acting as his own attorney); for the defendants.
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Page 9110--Opinionn
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7.
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When and how were the words “under God” added to the Pledge?
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8.
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What part of the Constitution is Newdow challenging? Why?
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9.
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What are Newdow’s religious beliefs?
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10.
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Why is his daughter required to say the pledge every day in school?
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Page 9111
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11.
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Why does Newdow say his daughter is “offended” by the pledge?
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Pages 9118-9121--The Establishment Clause argumentss
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12.
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The Lemon v. Kurtzman case set up the “Lemon Test” which has 3 parts. According to this test what is the government prohibited from doing,? (p. 9120)
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13.
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In the Lynch case, Justice O’Connor set up another test called the “endorsement
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test.” What does this test prohibit the government from doing?
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14.
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In the Lee case, the “coercion” test was formulated. Explain what further
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restrictions this test established.
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15.
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What did the Court decide about student-led prayers at football games in the
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Santa Fe case? (p. 9121)
Pages 9122-9124--The Majority Opinionn
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16.
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What did the magistrate judge (lower court) judge rule about the mention of God in the Pledge?
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17.
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What does the Court mean that “under God” is an endorsement of religion and what reasons does the Court use?
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18.
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The Court refers to more than six previous Court decisions to support its views.
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Comment on the use of these precedents.
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19.
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Why, according to the Court (p. 9124) is the Pledge an “impermissible
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government endorsement of religion?” Do you agree? Explain.
Appendix 2:
Newdow Case: Majority and Dissenting Opinions
A.Judge Goodwin’s Majority Opinion in
Newdow I
(excerpts)
“In the context of the Pledge, the statement that the United States is a nation “under God” is an endorsement of religion. It is a profession of a religious belief, namely, a belief in monotheism. The recitation that ours is a nation “under God” is not a mere acknowledgment that many Americans believe in a deity. Nor is it merely descriptive of the undeniable historical significance of religion in the founding of the Republic. Rather, the phrase “one nation under God” in the context of the Pledge is normative. To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and –since 1954--monotheism. The text of the official Pledge, codified in federal law, impermissibly takes a position with respect to the purely religious question of the existence and identity of God…. “[T]he government must pursue a course of complete neutrality toward religion.” Wallace, 472 U.S. at 60.
“The Pledge, as currently codified [containing “under God”], is an impermissible government endorsement of religion because it sends a message to unbelievers ‘that they are outsiders, not full members of the political community, and an accompanying message to adherents [believers] that they are insiders, favored members of the political community.’ Lynch, 465 U.S. at 688 (O’Connor, J., concurring)
“Similarly, the policy and the Act fail the coercion test. Just as in Lee, the policy and the Act place students in the untenable position of choosing between participating in an exercise with religious content or protesting…. The coercive [required behavior] effect of the Act is apparent from its context and legislative history, which indicate that the Act was designed to result in the daily recitation of the words “under God” in school classrooms. President Eisenhower, during the act’s signing ceremony, stated: “From this day forward, the millions of our school children will daily proclaim in every city and town, every village and rural schoolhouse, the dedication of our Nation and our people to the Almighty.” 100 Cong. Rec. 8618 (1954)
“… In sum, both the policy and the Act fail the Lemon test as well as the endorsement and coercion tests.
“In conclusion, we hold that (1) the 1954 Act adding the words “under God” to the Pledge, and (2) EGUSD [Elk Grove Unified School District]’s policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause….” (pages 9122-9131, selected)
B. Judge Fernandez, Circuit Judge, Dissenting Opinion. (excerpts)
“We are asked to hold that inclusion of the phrase “under God” in this nation’s Pledge of Allegiance violates the religion clauses of the Constitution of the United States. We should do no such thing. We should, instead, recognize that those clauses were not designed to drive religious expression out of public thought; they were written to avoid discrimination…. [W]hen all is said and done, the danger that “under God” in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody’s beliefs is so miniscule [tiny] as to be
de minimus
[of no serious concern]. The danger that phrase presents to our First Amendment freedoms is picayune [of little consequence] at most.
“Judges, including Supreme Court Justices, have recognized the lack of danger in that and similar expressions for decades, if not for centuries, as have presidents and members of Congress…. In County of Allegheny 492 U.S. at 602-03, 109 S. Ct. at 3106, the Supreme Court had this to say: ‘Our previous opinions have considered
in dicta
the motto [“In God We Trust”] and the pledge, characterizing them as consistent with the proposition that government may not communicate an endorsement of religious belief.’
“…[S]uch phrases as “In God we Trust,” or “under God” have no tendency to establish a religion in this country or to suppress anyone’s exercise, or non-exercise, of religion, except in the fevered eye of persons who most fervently would like to drive all tincture of religion out of the public life…. I realize that some people may not feel good about hearing the phrases recited in their presence, but, then, others might not feel good if they are omitted.
“… [U]pon Newdow’s theory of our Constitution, accepted by my colleagues today, we will soon find ourselves prohibited from using our album of patriotic songs in many public settings. “God Bless America” and “America the Beautiful” will be gone for sure, and while use of the first three stanzas of “The Star Spangled Banner” will still be permissible, we will be precluded from straying into the fourth [stanza]. And currency beware! Judges can accept those results if they limit themselves to elements and tests, while failing to look at the good sense and principles that animated those tests in the first place. But they do so at the price of removing a vestige of the awe we all must feel at the immenseness of the universe and our own small place within it, as well as the wonder we must feel at the good fortune of our country….” (pages 9132 to 9136, selected)
Document Source: www.findlaw.com (click on: “Federal>Cases>9th Circuit”)
Case number 00-16423 (Newdow I)
Case was argued and submitted on March 14, 2002 and decided and filed June 26, 2002
Case was amended on February 28, 2003 (Newdow II).
Appendix 3:
Important Supreme Court Cases
Everson v. Board of Education
(1947)--(5-4 vote) upholds New Jersey’s right to fund bus transportation to parochial schools; a victory for the separationist view..
McCollum v. Board of Education
(1948)--(8 to 1 vote) overrules a school district practice Illinois that held religious classes in public schools during school hours..
Engel v. Vitale
(1962)--bans voluntary nondenominational school prayers in New York..
Abingdon School District v. Schempp
(1963)--strikes down a Pennsylvania law that required compulsory Bible reading and school prayer..
Wallace V. Jaffree
(1985)--declares Alabama’s “moment of silence and prayer”
laws unconstitutional.
Board of Education v. Bridget C. Mergens
(1990)--allows student-led Bible clubs to meet after school under the same rules for other noncurricular clubs..
Lee v. Weisman
(1992)--(5-4 vote) disallows school-sponsored prayers at graduation ceremoniess
Santa Fe Independent School District v. Doe (2000)---
disallows student-led prayers at high school football games
Appendix 4:
Selected Quotations by Supreme Court Justices
1. The study of religion in the schools:
“Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” (Justice Tom C. Clark,
Abington v. Schemp,
1963, which disallowed official prayers and devotional reading of the Bible)
2. The state’s promotion of any one religious view:
“While the study of religions and of the Bible from a literary and historic viewpoint, presented objectively as part of a secular program of education, need not collide with the First Amendment’s prohibition, the state may not adopt programs or practices in its public schools or colleges which ‘aid or oppose’ any religion.” (Justice Abe Fortas,
Epperson v. Arkansas,
which prohibited any state from teaching evolution theory for religious reasons)
3. A joint opinion from four Justices on prayers at graduation ceremonies:
“Nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration, no, an affection for one another than voluntarily joining in prayer together to the God whom they all worship and seek. Needless to say, no one should be compelled to do that…. To deprive our society of that important unifying mechanism in order to spare the non believer what seems to be the minimal inconvenience of standing or even sitting in respectful nonparticipation is senseless.” (Dissenting opinion to
Lee v.
Weisman
, 1992)
Appendix 5: Quotations for Discussion
1. Historian Donald Kennedy on allowing for differences of points of view on evolution and religion: “How important it is for scientists to treat religious convictions with respect--in particular, not to suggest, even indirectly, that science and religion are unalterably opposed.”
2. Calvin and Hobbes comic strip dealing with so-called “big questions”
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Teacher: Does anyone have a question?
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Calvin: What’s the point of human existence?
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Teacher: I meant any questions about the subject at hand.
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Calvin: Oh.. (staring back at the book he mumbles, “Frankly I’d like to have the issue resolved before I expend any more energy on this”)
3. Author Warren Nord, promotes a middle way to the “all or none approach.”
“The conventional wisdom among educators is that religion is irrelevant to virtually everything that is taken to be true and important. One reason our situation is so difficult is that most educators are not very well educated about religion.”
4. Martin Luther King in 1967, spoke of the American community as diverse and often divided. “We have inherited a large house, a great ‘world house’ in which we have to live together--black and white, Eastern and Western, Gentile and Jew, Catholic and Protestant, Moslem and Hindu--a family unduly separated in ideas, culture and interest, who because we can never again live apart, must learn somehow to live with each other in peace.” (from m
Where Do We Go From Here, Chaos or Community?)
5. Yale law professor and author Stephen Carter complains that the media and the public are quite prejudicial when it comes to religion in schools. “If the school’s teachings are offensive to you because you are gay or black or disabled the chances are that the school will at least give you a hearing…. But if you do not like the way the school talks about religion, or if you believe that the school is inciting your children to abandon their religion, you will probably find that the media will mock you, the liberal establishment will announce that you are engaged in censorship, and the courts will toss you out on your ear.” (Carter,
The Culture of Disbelief,
page 52)
