Three Justices in Search of Historical Truth: Romance and Tragedy in the Rhetoric of Establishment Clause Jurisprudence

Three Justices in Search of Historical Truth: Romance and Tragedy in the Rhetoric of Establishment Clause Jurisprudence James Arnt Aune In the summer of 1997 Governor Fob James of Alabama threatened to call out the National Guard to protect the right of a county judge to display the Ten Commandments in his courtroom. In defense of his action, James argued that the First Amendment simply did not apply to the states.1 At the same time, the American Civil Liberties Union filed suit on behalf of the lone Jewish family in Pike County, Alabama, whose children had been harassed repeatedly in the public schools. The Pike County schools regularly held overtly Christian classroom and assembly activities. The superintendent allegedly told the family that the harassment would stop if they converted to Christianity.2 The year 1997 was also an unusually important year for church-state issues at the Supreme Court. In Agostini v. Felton, a 5-4 majority reversed the 1985 Aguilar v. Felton decision that had halted a New York City program that sent public school teachers into religious schools to provide remedial education.3 Aguilar had been, as one writer put it, "an emblem of the Court's 'strict separationist' interpretation of the First Amendment."4 The Court had allowed remedial education in a temporary building across the street from the religious school, but not on school property itself. By overturning Aguilar the Court appeared to strengthen the case for the constitutionality of publicly funded vouchers to enable students to attend religious affiliated schools. As predicted by many commentators, on November 9, 1998, the Court denied certiorari in the case of Jackson v. Benson, a Wisconsin Supreme Court decision upholding Milwaukee's school voucher program.5 More controversy, however, attended the case of City ofBoerne v. Flores, which invalidated the Religious Freedom Restoration Act of 1993, itself an effort by Congress to reverse the Employment Division v. Smith decision of 1990.6 An unprecedented coalition of civil libertarians, "mainline" Protestant denominations, and the Christian Right had lobbied Congress intensely to correct what they viewed as an interference with the right of "free exercise." The Court certainly did not reject James Amt Aune is Associate Professor of Speech Communication at Texas A&M University. The research for this essay was supported by a Scholarly and Creative Activities Grant from the Office of the Vice President for Academic Affairs at Texas A&M University. © Rhetoric & Public Affairs Vol. 2, No. 4,1999, pp. 573-597 ISSN 1094-8392 574 Rhetoric & Public Affairs "free exercise" in the Boerne case, but rather concerned itself with the narrower constitutional issue of whether Congress's power under Section 5 of the Fourteenth Amendment is purely "remedial." In fact, one could argue that the dominant trend in church-state law has been in favor of maximum free exercise.7 As revealed most dramatically in Alabama, it is the so-called "Establishment Clause" of the First Amendment that will continue to be a battleground for years to come. Roderick Hart's 1977 book The Political Pulpit identified the existence of a "contract " between religious organizations and government in the United States. Government agreed to stay out of the internal affairs of religion in exchange for the right to use religious rhetoric for political legitimation.8 What Hart did not foresee was the nearly complete abrogation of the contract by 1980. Jimmy Carter's "bornagain faith," the concern among Roman Catholics and evangelicals created by Roe v. Wade and the movement for gay rights, the steady decline of "mainline" Protestant denominations, the shift to the right by many Jewish intellectuals, and the rise of the Christian Coalition combined to redraw the boundaries of church-state relations.9 Presidential candidate Ronald Reagan drew thunderous applause by calling for a constitutional amendment permitting organized school prayer at a national affairs conference for evangelicals in August 1980. At that same conference, Dr. Bailey Smith, president of the Southern Baptist Convention, raised fears in the minds of American Jews and other traditional separationists with his comment: "It is interesting at great political rallies how you have a Protestant to pray, a Catholic to pray, and then you have a Jew to pray. With all due...