It is well known today that American public schools are legally barred from praying and teaching the Bible. However, this was not always the case. Religion was not banned from the schools until a series of Supreme Court cases in the mid-1900s that reinterpreted the First Amendment. Before we survey the Court's rulings, we will begin by examining the text of the Constitution's First Amendment.
The First Amendment's Establishment Clause
The First Amendment to the U.S. Constitution reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As we will see, the purpose of the first two clauses of the First Amendment was to prohibit Congress from doing two things: (1) establishing a national church; and (2) interfering with the religious policies of the states. In other words, the First Amendment was a limit on the federal government alone. It was not a limit on the states. The first clause of the amendment (which we are here concerned with) is known as the Establishment Clause, as it prohibits the establishment of religion. The second clause is known as the Free Exercise Clause.
How do we know this is the meaning of the First Amendment?
First, notice that the amendment only mentions “Congress.” It says nothing of the states. This was because the Bill of Rights (the first ten amendments) was designed to limit the power of the federal government, not the sovereignty of the states. The design of the federal system is really quite clear. Everything not delegated to the federal government by the states, as enumerated in the Constitution, was left to the states. That is why the Tenth Amendment states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Second, the First Amendment only prohibits Congress from making a law respecting “an establishment of religion.” This is referring to specific denominations (called “religions” back then), such as Congregationalism, Anglicanism, or Presbyterianism. There is no prohibition of speaking of God or invoking prayer in public. The First Amendment was not ratified by the states with the goal of keeping Christianity or religion out of the public sphere. That idea would have been absurd to the founding generation. Rather, the First Amendment was ratified in order to keep the federal government from establishing a national church and forcing it on the states (like the Church of England). Again, the states were trying to protect themselves from the federal government. They viewed themselves as sovereign states who had delegated a limited number of powers to the federal or general government, namely commerce and defense. The federal government was to have no role in religion.
Third, some states still had established state churches long after the ratification of the Bill of Rights in 1791. The Congregational Church remained the official state church of Connecticut until 1818 and of Massachusetts until 1833. So the very ratifiers of the Constitution—the states—did not understand the First Amendment to prohibit religion in the state governments. This is significant. While the intended meaning of the authors of the Constitution is important, we should primarily be concerned with what the ratifiers (the states) believed the Constitution to mean. Without ratification, the Constitution was not a binding document on anyone.
Fourth, even the Supreme Court ruled that the Bill of Rights was not a limit on the state governments, seen in the unanimous ruling in Barron v. Baltimore (1833). Many legal scholars will argue that this understanding of the Bill of Rights has changed (and now it limits the states) because of the adoption of the Fourteenth Amendment in 1868, following the Civil War. But this argument holds no water, as Barron was also upheld after the ratification of the Fourteenth Amendment in United States v. Cruikshank (1875)—seven years after the adoption of the Fourteenth Amendment. In other words, no one at the time thought the Fourteenth Amendment changed the meaning of the Bill of Rights. As we will see, that was a later invention of the 20th century.
When we come to the subject of education, we see that neither the First Amendment nor anything else in the U.S. Constitution says anything about it. This means all laws regulating education should be left to the states, including the question of what kind of religious instruction takes place (or lack thereof). That is the teaching of the Constitution. However, the Supreme Court has reinterpreted the Constitution over the years. This can be demonstrated by examining the Court’s rulings on religion in the schools.
Incorporating the First Amendment—Everson (1947)
Everson v. Board of Education (1947) was the first Supreme Court ruling to apply the First Amendment’s Establishment Clause to the states. This was part of what is known as the "Incorporation Doctrine," which incorporates the Bill of Rights (the first ten amendments) so as to restrict the states.
The Everson case was brought by a New Jersey taxpayer because a public school district was providing reimbursements to parents whose children took public transportation to a private school. The Supreme Court struck down the practice with a 5-4 ruling. The Court said that the Establishment Clause involved a “wall of separation between church and state,” a quote from Thomas Jefferson’s letter to the Danbury Baptists. Not only did the Court misinterpret Jefferson here (as he was explaining in his letter why he did not issue presidential declarations on Thanksgiving and fasting), but the Court also cited a letter that carries no authority in interpreting the Constitution. Jefferson had no role in drafting or ratifying the First Amendment. The Court's citation of Jefferson's letter is evidence of sheer historical ignorance.
The Everson ruling involved a new interpretation of the Bill of Rights that had begun in the 1920s. The first case that applied the First Amendment to the states was Cantwell v. Connecticut (1940), which applied the second clause (the Free Exercise Clause) to restrict the states. And now seven years later, Everson applied the Establishment Clause to the states as well. This was a new interpretation, seen in that the language of the First Amendment only applies to Congress, not the states—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” As mentioned earlier, even the nationalist Marshall Court unanimously affirmed that the Bill of Rights only applied to the federal government in Barron v Baltimore (1833). Though the ratification of the Fourteenth Amendment in 1868 is often cited as a change here, Barron was even upheld after its ratification in United States v. Cruikshank (1875). The following year after Everson, the Court ruled in McCollum v. Board of Education (1948) that optional religious instruction in public schools also violated the Establishment Clause.
Banning Prayer—Engel (1962)
Everson set the stage for Engel v. Vitale (1962), which banned prayer in public schools. The Supreme Court ruled that a generic prayer to “Almighty God” violated the Establishment Clause of the First Amendment. The prayer had been approved by the New York Board of Regents. The Court was clearly using the Incorporation Doctrine from Everson to apply the First Amendment to the State of New York. But oddly enough, the Court went even further by considering a generic prayer to be an “establishment of religion.” Here is the prayer, just to show how ridiculous the ruling was:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country. Amen.
The Court followed this ruling 30 years later in Lee v. Weisman (1992) by banning the traditional invocation at school commencement ceremonies.
Banning the Bible—Abington School District (1963)
The following year after Engel, the Court banned Bible reading from public schools in Abington School District v. Schempp (1963). The case was brought by a man against Pennsylvania because of a state law that required the reading of at least 10 verses of the Bible at the beginning of each school day. The verses were read without comment, and the state legislature even changed the law to allow parents to exempt their children from the Bible reading. It is hard to see how this was an “establishment of religion.” But Schempp, a Universalist, still continued with the case.
Quite telling is the lone dissent of Justice Potter Stewart. He was the only justice to acknowledge the original meaning of the First Amendment as applying to the federal government alone:
It is, I think, a fallacious oversimplification to regard these two provisions as establishing a single constitutional standard of “separation of church and state,” which can be applied in every case to delineate the required boundaries between government and religion . . . As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments. . . . Each State was left free to go its own way and pursue its own policy with respect to religion. Thus, Virginia from the beginning pursued a policy of disestablishmentarianism. Massachusetts, by contrast, had an established church until well into the nineteenth century. So matters stood until the adoption of the Fourteenth Amendment, or more accurately, until this Court's decision in Cantwell v. Connecticut.
Potter also warned that the Abington ruling did not leave the state neutral but established “secularism” as the state religion:
For a compulsory state educational system so structures a child's life that, if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen not as the realization of state neutrality, but rather as the establishment of a religion of secularism, or, at the least, as government support of the beliefs of those who think that religious exercises should be conducted only in private.
After Abington, the rest is just details. The Supreme Court has consistently struck down any religious teaching in public schools as unconstitutional. For example, Edwards v. Aguillard (1987) struck down a Louisiana law that required creation science to be taught alongside evolutionary theory.
It is important to note that none of these Supreme Court rulings had anything to do with establishing a national church, which was the original intention of the First Amendment’s Establishment Clause. It is also important to note how recent all these rulings are. The public school system began in the mid-1800s and was in full force by 1900. Yet religion in the classroom was not banned by the Court until 1962. Though the Engel and Abington rulings of 1962 and 1963 resulted from rulings in the 1940s, that was still a full generation or two after the public school system began.
This demonstrates that there was a change in the understanding of the Constitution in the 20th century by the Court. Sadly, the Supreme Court did the very thing it is not supposed to do—it amended the Constitution without going through the proper means laid out in Article V. Instead of Congress amending the Constitution with the consent of the states, the Court simply changed its interpretation of the Constitution. The Supreme Court trampled on the rights of the states through a federal judicial decree, outlawing Christianity from the public sphere and declaring secularism to be our national religion. And Congress and the states just sat there and watched.
For more information on an originalist understanding of the Constitution, I strongly recommend the following works: