Conflicting rights and religious liberty: The school-prayer controversy in Alabama, 1962-1985
The school-prayer controversy reappeared on the Alabama political stage in 1982 when Ishmael Jaffree sued to stop organized school prayer in Mobile County classrooms. Religious leaders and Gov. Forrest "Fob" James Jr. eagerly joined the fray, the latter carrying the banner for those urging defiance of federal courts and support for prayer in public schools. Appealed to the Supreme Court in 1983, the Jaffree case gained national attention when the justices declared Alabama's 1981 "voluntary prayer" law unconstitutional. Enveloped in the politics of fear and demagoguery, the school-- prayer controversy exposed the difficulties experienced by Alabama in adjusting to cultural and religious pluralities and in evaluating religious freedom in light of the changing circumstances of the twentieth century. The struggle to define the relationship between church and state turned public schools into a battleground for religious, political, and cultural forces.1
Like many constitutional issues, the right to religious liberty exhibits an outward simplicity that belies its intricate nature. Religious freedom is guaranteed in the First Amendment to the U.S. Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These sixteen simple words in the Bill of Rights define and protect religious liberty, but applying them in a legal context is fraught with difficulty. The framers of the Constitution crafted a governmental framework that created separate spheres for civil authority and religious institutions, but they provided only general guidelines for governing the relationship between church and state.
The intent of the framers of the Constitution and Bill of Rights became the object of contention soon after the documents were adopted. Perhaps the most important entry in the debate appeared in 1802 when Thomas Jefferson penned his famous letter to the Baptists of Danbury, Connecticut, in which he asserted that the First Amendment was designed to build "a wall of separation between church and State."2 Jefferson's articulation of the framers' intent advanced the emergence of a constitutional landscape dotted with varied and contentious opinions but dominated by two primary camps of interpretation.
The nonpreferentialist, or accommodationist, view is that public policy and government can aid or support religion and religious exercises provided that the state does not show preference for one religion or church over another. By emphasizing the Free Exercise Clause and interpreting the Establishment Clause in strict and narrow terms, nonpreferentialists maintain that government can-many argue should -"accommodate" religion and sponsor religious activities because nonpreferential treatment of religion by government was the intent of the framers of the Bill of Rights. In the school-prayer controversy of the last half century, nonpreferentialists have argued that the Free Exercise Clause protects the rights of teachers and students to pray in schools; any governmental attempt to prohibit prayer violates an individual's right to free exercise. They also maintain that the Supreme Court's limitations on religious activities in schools have mistakenly given too much credence to Jefferson's metaphor of a wall of separation. The doctrine is not found in the Constitution, they argue, and therefore lacks any basis for guiding legislative or judicial considerations of the role of religion in the public arena.
In contrast, the separationist view advocates a broad interpretation of the Establishment Clause that would bar any government aid, support, or sponsorship for churches or religious activities. Separationists argue that government should be "neutral" in public policy toward religion and that a strong, high, and impenetrable wall separating state and church should prevent any government interference with religion or religious liberty as defined by the Free Exercise Clause. Since the 1950s separationists have argued in the courts that teacher-led or other forms of institutionally sponsored prayer violate the Establishment Clause. Public schools, as governmental agencies, and teachers, as governmental representatives or functionaries, should not be involved in sponsoring or supporting religious activities, and to do so not only constitutes government support for religion but also infringes on the rights of students who prefer not to participate. These opponents of organized school prayer consistently invoke Jefferson's wall of separation, arguing that the doctrine embodies the intention of the founders with respect to the First Amendment.4
The Establishment and Free Exercise Clauses received infrequent attention at the national level prior to the twentieth century, and religious symbols, practices, thought, and ceremonies have permeated government operations throughout U.S. history. A few examples include the following: the opening of state legislature and congressional sessions with prayer, the imprinting of "In God We Trust" on U.S. currency, government observances of religious holidays, the seeking of God's blessings in national anthems, references to God in government proclamations and before sessions of the Supreme Court (the bailiff proclaims "God save the United States and this honorable Court"), and, in 1954, the addition of the phrase "under God" to the Pledge of Allegiance. Prayer, Bible readings, hymns, and religious devotionals were a common part of public education in the nineteenth and early twentieth centuries, but their presence was never universal and often a point of contention.5 Supporters of religious instruction in the classroom believed that religious activities benefited students, instilled moral values, and supported democratic institutions. Justice William 0. Douglas noted this symbiosis of American heritage and religion in a 1952 opinion: "We are a religious people whose institutions presuppose a Supreme Being.... When the state encourages religious instruction or cooperates with religious authorities .... it follows the best of our traditions."6
As the twentieth century progressed, however, expansion of government services, growth of the public sector, and greater ethnic and religious diversity in the U.S. slowly produced tensions over interpretations of the First Amendment. The prospect of judicial protection of the rights of religious minorities improved in the 1920s when the Supreme Court began ruling that the Fourteenth Amendment's Equal Protection Clause makes the Bill of Rights applicable to state governments as well as the federal government, a doctrine known as "incorporation" because the Bill of Rights was effectively incorporated into the Fourteenth Amendment. When Jehovah's Witnesses challenged school practices such as the Pledge of Allegiance to the U.S. flag, they faced near universal scorn, suffered a series of legal defeats, and were physically abused. But by 1943 the Supreme Court ruled in West Virginia State Board ofEducation v. Barnette that the Establishment and Free Exercise Clauses protect groups like the Jehovah's Witnesses, who adhere to a religious prohibition against saluting government symbols, from mandatory participation in the Pledge of Allegiance. Calls for a stricter separation of church and state soon followed and challenged the notion that Americans were uniformly a "religious people whose institutions presuppose a Supreme Being."'
The initial challenge to prayer in public schools originated in New York. Continuing a tradition of school prayer, the Board of Regents of New York State prepared in 1951 a "nondenominational prayer" for use in classrooms after the flag salute. Based on the Regents' recommendation, some local school boards adopted the prayer, which read, "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country." Parents of ten children in New Hyde Park, New York, challenged the use of the prayer. New York courts rejected the legal challenge to stop use of the prayer because students were not required to participate. The case, Engel v. Vitale,8 was then appealed to the U.S. Supreme Court.
The Supreme Court issued a ruling against the school in 1962. Given the earlier decisions of the Earl Warren Court (1953-69), the judgment in Engel should not have been a surprise.9 Since 1954 the Supreme Court had issued rulings that protected religious dissenters (Torcaso v. Watkins, 1961), racial minorities (Brown v. Board ofEducation, 1954), and political dissenters (Yates v. U.S., 1956); required redrawing of electoral districts to achieve equal representation (Baker v. Carr, 1962); and extended greater protection to the poor (Griffin v. Illinois, 1956). These and subsequent rulings were often divisive. Although many viewed the Supreme Court as promoting long-overdue social, economic, and political change that extended liberty and justice, others interpreted this "judicial activism" as usurping the power of the states and the elected branches of the federal government (the president and Congress) because decisions often overruled state and federal political policies and traditions.
Justice Hugo Black eagerly sought the opportunity to write the majority opinion in Engel.10 One of the most influential justices of the twentieth century, Black was a native of Clay County, Alabama, and his experiences growing up in a rural area and overcoming financial and social obstacles shaped his strong beliefs in community values, individualism, and religious freedom. But the young, talented, and aspiring Hugo had learned that community standards and rights of individuals were often difficult to reconcile. Reared in a Baptist home where his mother insisted on church attendance, Hugo witnessed the social and moral conformity that a rural Protestant community could enforce. His Baptist heritage--including the long- standing Baptist position on strict separation of church and state- stayed with Black as he taught Baptist Sunday school in his hometown and later in Birmingham, where he had a successful law practice. Ambitious and determined, Black entered politics and won his bid for a U.S. Senate seat in 1926. In 1937 Franklin D. Roosevelt appointed Black to the Supreme Court, where the Alabamian soon established his reputation as a brilliant and insightful justice.
Already known for his conviction that First Amendment protections were absolute, Black viewed the Engel case as an opportunity to define clearly the wall of separation between church and state. Black spoke for the Court in declaring the New York Regents' prayer unconstitutional and stressed that the First Amendment means "that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government." After tracing the history of religious persecution of nonconformists in England, Black maintained that the founders knew "that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services." Responding to the charge that nondenominational prayers do not threaten religious liberty, Black cited James Madison's advice that "it is proper to take alarm at the first experiment on our liberties.1 Black's decision further eroded his already damaged standing in Alabama. Because of his role in Brown v. Board of Education, which declared school segregation unconstitutional, and now Engel, many Alabamians thought Black had betrayed his native state and its heritage. As biographer Virginia Van der Veer Hamilton aptly notes, the Alabama justice was viewed as a `Judas" who sold out the South.12
In his lone dissent in Engel, Justice Potter Stewart rejected the argument that the Regents' prayer represented an establishment of an official religion, especially given that no coercion or pressure was involved. Instead, he argued that by declaring the Regents' prayer unconstitutional the Court was restricting religious rights of students under the Free Exercise Clause and denying America's religious heritage. Stewart believed that the Regents' prayer followed a pattern of "deeply entrenched and highly cherished spiritual traditions of our Nation."13
Engel was followed in 1963 by a Supreme Court decision in Abington School District zv. Schempp that declared unconstitutional a Pennsylvania statute requiring daily Bible reading and recitation of the Lord's Prayer in public schools."4 Writing for the majority, Justice Tom Clark emphasized that for Bible reading to be constitutional under the Establishment Clause it must have a clear secular purpose and neither advance nor inhibit religion. Although coercion was not involved, the requirement of Bible reading was unconstitutional because it represented government interference with and aid to religion. Clark asserted that reading the Bible as literature and history and the study of religion were strongly endorsed by the Supreme Court; as a subject of academic inquiry, religion was an important and essential part of education. But religion as an academic subject differed from the issue before the Court. Addressing the position that restrictions on Bible reading violated the majority's right to relipious freedom, Clark asserted that the First Amendment "has never meant that a majority could use the machinery of the State to practice its beliefs." In his dissent Justice Stewart argued that if religious exercises were prohibited in schools, then "religion is placed at an artificial and state-created disadvantage" and that government neutrality on religious issues should allow religious activities. Otherwise, prohibiting religious exercises results in the "establishment of a religion of secularism, or at the least... government support of the beliefs of those who think that religious exercises should be conducted only in private."
The rulings on school prayer and Bible reading generated a storm of protest." Claiming that religious liberty was jeopardized by the Supreme Court, many politicians and religious leaders labeled the high court's decisions as communistic and atheistic attempts to remove God from the educational system and as evidence of a secular and liberal attack on the moral and religious foundations of America. Evangelist Billy Graham claimed that Engel "is another step toward the secularization of the United States.... The framers of the Constitution meant we were to have freedom of religion, not freedom from religion." Francis Cardinal Spellman of New York responded, "The decision strikes at the very heart of the Godly tradition in which America's children have for so long been raised." Opinion polls indicated that the majority of Americans opposed the Supreme Court rulings on prayer and Bible reading. School systems were slow to comply with the judicial decisions, and many educational institutions openly defied the high court. Although estimates vary, reports in the mid-1960s indicated that 70 to 95 percent of southern schools continued with state-sponsored prayer or Bible reading or both. In one 1973 study cited by the New York Times, a survey of school superintendents revealed that 10 percent of the nation's schools and about 28 percent of southern schools were continuing with school- sponsored prayers in morning assemblies. The frequency of teacher-led prayers in individual classrooms pushed the percentage of schools with religious activities much higher. In 1985 Paul Hubbert, executive secretary of the Alabama Education Association, confirmed that religious activities were routine in many Alabama classrooms."
Evident from the beginning was a widespread misunderstanding or conscious misrepresentation of Engel. Rather than promoting careful analysis of the ruling and rational debate, pronouncements by religious and political leaders magnified public furor. From 1962 forward, social and religious conservatives portrayed judicial decisions prohibiting school-sponsored religion as removing God from schools and as subverting religion. Newspaper headlines and editorials about the justices' "outlawing prayer" and "outlawing God" reinforced the distortion. But contrary to popular belief and politicians' statements, the Court's decision prohibited only organized, school-sponsored prayer. Engel did not prohibit individual, voluntary prayer in the classroom, nor would it have been possible to do so."
Many politicians deliberately misrepresented the Engel decision in their attempts to gain popularity, but the Court's ruling would have been controversial even without the political posturing. The school- prayer issue touched a nerve that was already sensitive because of increasing concerns over the cultural and moral direction of American society, and the struggle over the religious activities of school children became acrimonious. Although some individuals, religious organizations, and social policy groups praised the Supreme Court decision, popular disapproval-often outrage -was the norm. Engel generated as much if not more furor as any Supreme Court ruling of the twentieth century, including Brown and Roe v. Wade. It also resulted in more congressional moves to overturn a Supreme Court decision than any other twentieth-century ruling.19
Alabamians' reactions were representative of those of the nation at large, with shrill repudiations characterizing most." Governor Wallace condemned the ruling and prepared to fight for traditional religious activities. From his 1963 inaugural address forward, the astute governor used the school-prayer issue, and later the ruling against Bible reading in schools, to his political advantage. These controversies provided Wallace with one more emotional issue in his states' rights campaign against the federal government, the Kennedys, and communists. He maintained that the "beneficiaries" of recent Supreme Court decisions had been "convicted criminals, communists, atheists, and clients of the N.A.A.C.P." and charged the justices with undermining moral values and Christianity. Before the Citizens' Council of Louisiana in August 1963, Wallace delivered a lengthy attack on the Court that typified his rhetoric on the subject. "And now, we find the court ruling against God," Wallace began. "They tell us the Bible can't be read to our children in school. I reject the theory that ungodliness is the American way... We are going to continue to read the Bible in Alabama Schools.... If the Court, and the Justice Department don't like it, let them send their Federal troops to Alabama to stop us."21
Other Alabama politicians joined the outcry against the Warren Court's ruling on school prayer. Congressman George Andrews railed, "They put the Negroes in the schools and now they've driven God out." Senator John J. Sparkman branded the ruling a "tragic mistake." Labeling Engel a "diabolical decision," the Alabama legislature shouted approval for a resolution that condemned the ruling and called for a constitutional amendment ensuring children "the right to prayer in our schools." Bobbie James, wife of future governor Fob James, expressed the reaction of many Alabamians. On hearing of the 1962 decision, she recalled, "I saw the violence that would overtake the schools and I thought, `Oh no, that can't happen.'"22
Assemblies and speakers vilified Justice Black in forums throughout the state. In a resolution that was prepared but not presented, legislators castigated Black as a "native son" who had abused his power, "like a decadent Caesar reached the apex of a personal delusion of infallability [sic] and used his position of public trust" to undermine the Constitution.23 For a southerner to author the majority decision in Engel was clear betrayal. Southern politicians angered by Brown had already criticized the Warren Court and used numerous methods to block or thwart desegregation, and Engel gave them another reason to denounce the justices. Furthermore, school prayer seemed easier to justify than segregation, but preservation of traditional values was at the core of both and would appeal to conservative, Protestant constituents.
The furor over school prayer prompted challenges to Engel but failed to generate much reflection on the implications of religious activities in public schools or on religious freedom in a pluralistic society. Partisan cartoons-many lambasting the Supreme Court-filled the editorial pages of newspapers across the state. One atypical cartoon depicted a neglected aspect of the school-prayer controversy. Reacting to the Engel decision, three men point to the Bible, the Constitution, and a book of law as they rant and rave about the Supreme Court. In the background an individual representing minorities meekly asks, "Will somebody say a prayer for me?"24
Wallace never evinced concern for religious minorities, but his rebuke of the Court struck a resonant chord with Alabamians and many Americans. Letters flooded into the governor's office, praising his attacks on the 1962 and 1963 decisions and his calls to teach religion in schools. The correspondence represented a broad cross section of society and came in the form of handwritten notes, formal letters, and postcards; the overwhelming majority echoed Wallace's attacks on the Supreme Court, the federal government, the Kennedys, and communists.
The school-prayer ruling created disagreement within many religious organizations and denominations. Most Jewish and mainline Protestant leaders supported Engel, but many Catholic and some southern Protestant leaders were divided on the issue.26 One southern supporter was Rev. Herschel H. Hobbs, the highly respected pastor of First Baptist Church in Oklahoma City, Oklahoma, president of the Southern Baptist Convention, and native Alabamian, who asserted that Engel was "one of the most powerful blows in our lifetime, maybe since the Constitution was adopted, for the freedom of religion in our nation."27 The majority of laypeople, however, opposed the ruling on the grounds that prohibiting religious activities discriminated against religion, violated a cherished religious and national heritage, and deprived individuals of their right to express their faith publicly.
The Alabama Baptist State Convention, the largest Protestant denomination in Alabama, reflected this divided mind. As editor of the Alabama Baptist (the newspaper with the highest circulation in Alabama except for the Sunday edition of the Birmingham News), Leon Macon joined several prominent Alabama Baptist ministers in supporting the decision, which put federal jurisprudence in accordance with the denomination's historic position on the separation of church and state. Macon asserted that the Supreme Court was not antireligious and that its position on separation of church and state was within the best interest of the church. He maintained that Americans "have our churches in which to teach our children their religious practices and beliefs, and trying to use some state agency to accomplish what the church ought to be doing is a confession that one's particular church program is ineffective." In a sermon reprinted in the Alabama Baptist, Rev. James E. Davidson, pastor of South Avondale Baptist Church in Birmingham, defended Justice Black's opinion in Engel: "Many sincere Christian people of our country have declared that the Supreme Court has by its decision led America another tragic step toward secularism and materialism. Some have charged that the Court in effect has abolished God from the lives of American people. If we were dependent upon public schools and government sanctions of our Faith in God and Christian ideals we had very little to lose." Others in the denomination, especially laypeople, rejected the paper's position and criticized leaders who supported Engel. A Baptist church in Decatur voted unanimously to send a resolution to Governor Wallace supporting his stance on school prayer and Bible reading.9
Concerned about the public response to Engel, the Baptist Joint Committee on Public Affairs, an independent publicpolicy group supported by several Baptist conventions, placed an advertisement in the Alabama Baptist with the caption, "GET THE FACTS ABOUT THE COURT DECISION ON PRAYER." In response to "much misinterpretation and misinformation" about Engel, the agency offered to send copies of the entire decision for a cost of twenty-five cents. Many Baptists and Alabamians of various religious affiliation, however, preferred the "misinterpretation and misinformation" to the admonitions of religious leaders.
Some Alabama Methodists likewise campaigned vigorously against Engel. Vituperative attacks on the Supreme Court filled the pages of the Methodist Christian Advocate, the newspaper for the Alabama-West Florida and North Alabama Conference. Editor T. P. Chalker railed that by "bowing to the tyranny of a few misguided individuals it [the Supreme Court] now assumes the role of establisher of irreligion in complete denial of America's spiritual heritage." In an article comparing communist brainwashing to the "Devil's brainwash[ing]" orchestrated by "forces of irreligion," Chalker asked, "Where will it all stop, Will America finally succumb, a sick victim of a demonic national brainwash, and become officially atheistic, Will we who call ourselves Christian endure, in our battle to `keep God constitutional'?" Rev. John W. Bryan maintained, "We have seen men in high government positions presume to drive God from the classrooms of our schools and the hearts of our children." But in spite of these acerbic condemnations and in contrast with Alabama Baptists, it was Methodist laymen and pastors who provided a great deal of affirmation of the principle of separation of church and state and pleas for a rational response. Several letters in the Methodist Christian Advocate emphasized that Engel banned only state-prescribed prayers in public schools and that churches "should pass resolutions of hearty endorsement of the Court's action."31
Alabama Churches of Christ were also divided on the school-prayer and Bible-reading controversies. Contributors to the Gospel Advocate more frequently expressed support for Engel and Schempp but also shifted the emphasis from issues of constitutionality to the nature of prayer, arguing that the proper place for prayer and Bible reading was in the church and home. "Prayer must come from the heart," L. R. Wilson argued. "It must be an individual matter. The mere `recitation' of prayers, composed by someone else, is a ritual without any serious meaning." Rather than being concerned about "this much-talked-of matter of a governmental, Christless prayer [i.e., the New York Regents' prayer]," L. D. Harless urged that Christians should pursue "more prayer at home, more Bible reading at home, more family devotions and more daily, dedicated Christian living at home." School prayer and Bible reading, these Church of Christ authors warned, entrusted the state with a responsibility that Alabama families had too readily abdicated.32
Wallace perceived, however, that most Alabama voters supported organized religious activity in the classroom, so he urged defiance of the Court and backed up his rhetoric with action. Alabama law already required Bible reading in public schools as part of the statewide course of study, so the governor and the Alabama State Board of Education demonstrated their resolve at a meeting of the board on August 5, 1963, by reinforcing the curriculum with a resolution that prescribed daily Bible reading in Alabama classrooms. If the federal government challenged him, Wallace vowed, he would go to schools personally and read the Bible. "I would like to see the people of Alabama in defiance" of Schempp, Wallace stated. "I want the Supreme Court to know that we in Alabama are not going to conform." With this act of defiance Alabama was one of six states that continued to require religious exercises; nine other states continued prayer or Bible reading as a tradition but not because of state law. Letters of support from across the state and nation once again poured into the governor's office.
Reflecting the influence of Wallace's rhetoric, Alabamians linked support for school prayer and Bible reading with support for segregation and states' rights and opposition to communism and liberalism. A Birmingham student praised Wallace for supporting Bible reading and fighting integration because he did not want to attend school "with any dirty black negro." After attacking the American Civil Liberties Union and communism, another writer claimed that people "who `promote freedom' by supressing [sic] religion are bigger hypocrites than fanny pinching preachers."34
Although Wallace enjoyed the support of most Alabamians, he was not without critics, and opponents often highlighted the inconsistency that crept into the governor's rhetoric. James A. Brooke of Anniston compared Wallace's call for civil disobedience to that of Martin Luther King Jr. After referring to King's strategy of disobeying "unfair" laws, Brooke noted that Wallace made Bible reading mandatory in schools, thereby implying that defiance of an unfair ruling by the Supreme Court was justified. "TELL ME, GOVERNOR, WHO ARE YOU BEGINNING TO THINK LIKE?" was Brooke's concluding sentence. Alvin Rosenbaum of Florence claimed that there was a "paradox" in Wallace's "political philosophy," particularly involving governmental authority and Wallace's recent actions on Bible reading in schools. He quoted from Wallace's inauguration speech on January 14, 1963: "As free men we do not recognize any government right to give freedom, or deny freedom. No government by man has this right." Then on August 13 Wallace claimed that "the federal government is trying `to take over your life and mine."' Rosenbaum criticized the governor for taking the same position he had previously attacked: "You are using a `governmental right' to deny the freedom of one third of the population of our state. In requiring Bible reading in all Alabama schools, you are denying a student the right not to study the Bible. Although a majority of the people of Alabama agree with you, so do the majority of the nation agree with the acts of the United States government. If Kennedy is guilty of the sin of centralization of power, than [sic] I think that you are guilty of the same sin."35
Engel's unpopularity was evident nationwide and led to efforts to negate the ruling. Conservative individuals and groups viewed it as one more example of the Supreme Court's undermining America's "traditional" values. Politicians tapped into this moral outrage and used numerous strategies-including proposed constitutional amendments -to overturn Engel.36 The most notable was the Becker amendment, introduced in 1963 by Rep. Frank J. Becker (R-- New York), which proposed permitting voluntary state-prescribed prayers in public schools. Although it met with initial popular approval, the Becker amendment failed to win adequate congressional support and thus was never submitted to the state ratification process.37
Not content to fight the Supreme Court's decisions on the state level, Governor Wallace acquired a national forum by testifying before the House Committee on the Judiciary during hearings on the Becker amendment in 1964. Wallace began his endorsement of the proposed amendment by attacking the federal government, socialism, and secularism and by claiming that when "the crimes against humanity are finally catalogued, this monstrous breach of faith by the nonelected branch of the federal government must stand out as one of history's greatest infamies." The remainder of Wallace's presentation advanced the nonpreferentialist view of church-state relations and maintained that the Bill of Rights did not apply to state governments.38
Opposition to Engel continued unabated, but except for repeated attempts to pass a constitutional amendment, the public witnessed more rhetoric than action in the school-- prayer controversy in the late 1960s. After the Becker amendment failed, Congress proposed similar amendments, a legislative practice repeated over two hundred times by the 1990s. Political and religious conservatives, however, were slow to employ other strategies for skirting Engel. Social and political unrest, the Vietnam conflict, and the Civil Rights movement captured the nation's attention during the turbulent sixties and overshadowed the school-prayer issue. Although the controversy continued as a theme in Alabama politics and even in presidential elections, activity on the school-prayer front declined until advocates of school prayer mobilized behind new initiatives a decade later.
Beginning in the late 1960s and accelerating in the 1970s, state governments devised different tactics to bolster religion in the classroom. A common legislative approach was to adopt a statute permitting a moment of silent meditation in public schools; occasionally the statute explicitly designated the time for prayer. Justice William Brennan had indicated in his concurring opinion in Schempp that a period of silent meditation might be allowed, and legislators likely drew confidence from his speculation. Tennessee in 1968 and Georgia in 1969, for example, were among the first states to pass moment-of-silence statutes. By the 1980s more than twenty states had legislation of this type, but few included reference to prayer. Pursuing a similar strategy, in 1978 Kentucky passed a statute requiring that the Ten Commandments be posted in public schools, but in Stone v. Graham the Supreme Court ruled that the act violated the Establishment Clause because the statute lacked a secular purpose.39
The Alabama legislature followed this trend in 1978 by passing a statute that provided for a moment of meditation: "At the commencement of the first class each day in the first through the sixth grades in all public schools, the teacher in charge of the room in which each such class is held shall announce that a period of silence, not to exceed one minute in duration, shall be observed for meditation, and during any such period silence shall be maintained and no activities engaged in." The legislature amended the statute in 1981 by adding the words voluntary prayer and substituting the word may for shall: "At the commencement of the first class of each day in all grades in all public schools, the teacher in charge of the room in which each such class is held may announce that a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer, and during any such period no other activities shall be engaged in. "40
The 1981 "voluntary prayer" law, as it came to be known, seemed a minor adjustment and still within the legal bounds established by the Supreme Court. The legislative process, however, revealed motives that made the 1981 statute constitutionally suspect. Although the wording of the statute was probably acceptable by Supreme Court guidelines, Sen. Donald G. Holmes, the Alabama legislator who sponsored the bill, openly admitted that the 1981 statute was "an effort to return voluntary prayer to our public schools. "41 The avowed motive would become central to the Supreme Court's later ruling in the Ishmael Jaffree case and reflected the perspective of many Alabamians. Like Holmes, most Alabamians favored "returning voluntary prayer" to the classroom, even though teacher-led prayers had never left many public schools.
Alabama's statutory support for voluntary prayer appeared just as a new conservative movement was staking its claim on the American political landscape. In response to social turmoil, secularization, and the expansion of individual rights during the 1960s, a conservative resurgence emerged by the late 1970s. Increasing political activism by evangelical religious groups corresponded to this trend, and the rise of the Religious Right (or New Christian Right) was the most dramatic and visible embodiment of the new social and economic conservatism. The Religious Right comprised primarily conservative Protestants but also included Catholic, Mormon, and Jewish activists. By mobilizing evangelical Protestants and other social conservatives, groups such as Rev. Jerry Falwell's Moral Majority grew in political strength and national prominence. By allying with the older establishment of the Republican Party, the Religious Right helped elect Ronald Reagan president in 1980.42
School prayer was a defining issue for the Religious Right, whose leaders advocated social policies designed to reverse the perceived moral decay of America and to redefine the relationship between religion and government. Although never a monolithic movement, the Religious Right generally opposed strict separation of church and state and encouraged political activism at the local, state, and national levels to influence public policy. Arguing that since the 1940s the Supreme Court had misinterpreted the intent of the founders on church-state relations, Religious Right leaders urged church members to unite and reclaim America for Christians with a constitutional amendment returning voluntary prayer to schools.
Supporters of school prayer claimed that a rise in social problems (crime, divorce, pornography, drug use, abortions, illegitimacy, sexual promiscuity) and a decline in morals and student achievement scores had occurred because God had been "removed" from public schools. Followers of the Religious Right rarely questioned the accuracy of this presumed cause-effect relationship, nor did they acknowledge the theological ramifications of claiming that God could be removed from classrooms by order of the Supreme Court. Critiquing the "populist cries" that Engel and Schempp were causing moral decay, religious historian Martin E. Marty sardonically noted the implications of "a portable little God who gets wheeled in andout of the schools at the whim of government officials. If America ever depended on such a disposable God, it deserved to have the moral decline we are told began after the court decisions."43
Although efforts for a school-prayer amendment had been perennial since 1962, the Religious Right pushed the item to the top of the legislative agenda in the 1980s. After congressional efforts to pass a school-prayer amendment failed, President Reagan proposed a constitutional amendment in 1982 to "restore the right to pray": "Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer." Reverend Falwell endorsed the proposal as an appropriate strategy "to circumvent the Supreme Court." Alabama senators Jeremiah Denton and Howell Heflin supported the Reagan amendment, which failed in the Senate in 1984.44
The emotional appeal of the school-prayer issue was evident in the political battles over the Reagan amendment, which received broad support in Alabama. Known as a conservative state and mainstay of the Bible Belt, Alabama had a political and religious culture conducive to the national conservative shift. The impact of the Religious Right was not necessarily to convert Alabamians to a set of theological beliefs or to mobilize them for political activism but rather to reinforce the beliefs inherent to segments of Alabama's conservative and evangelical communities. Within the Southern Baptist Convention, for example, conservative forces were gaining ascendancy by the early 1980s and redefining the denomination's stance on major issues. In 1982 the Southern Baptist Convention reversed its position on Engel and supported-by a three-to-one margin-a constitutional amendment on school prayer. The Alabama Baptist State Convention reflected this conservative trend, although a vocal minority at both levels opposed Reagan's proposed constitutional amendment.45
Rev. David Bowler, pastor of Calvary Baptist Temple in Montgomery and state board member of the Moral Majority, voiced the perspective of most Alabama evangelicals in the early 1980s: "The present battle [for biblical righteousness] calls on Bible-believing Christians to stop pornography and abortions, to fight feminism and homosexuality and to get good `God-centered education' back in schools."46 The struggle to reverse secularization and restore traditional values was as intense in Alabama as in any other part of the country, but the dominant conservative culture met a potent challenger in a 1982 lawsuit that objected to a continued policy of school prayer in Mobile County.
An African American native of Ohio and an agnostic, Ishmael Jaffree moved to Mobile in 1977 with his wife, Mozelle, a member of the Baha'i faith, and their children and began working at the Legal Services Corporation of Alabama. Ishmael Jaffree wanted his children to "be free to examine, to explore, to ponder. . . to be exposed to different philosophies" and to decide their beliefs by their own volition. Through exposure to their mother's religious faith and a questioning of various belief systems, the Jaffree children were encouraged to make their own decisions, and the parents had agreed not to try to convert their children to their respective viewpoints. This home environment fostered a spirit of inquiry, especially in Chioke Jaffree, whom his father described as "perceptive and sophisticated."47
By the fall of 1981 the Jaffrees had three children enrolled in school: Chioke, age five; Makeba, seven; and Jamael Aakki, eight. The children attended different schools in Mobile County, but each encountered religious activities in the classroom. The father first became aware of school prayers when Chioke told him in September 1981 that his kindergarten teacher led the class in a daily lunch prayer: "God is great, God is good, Let us thank Him for our food; Bow our heads, we all are fed, Give us Lord our daily bread. Amen!" Later the other two Jaffree children acknowledged teacher-- led prayers in their classrooms. Jaffree objected to the school prayers not because he was "anti-church, anti-Christ, anti-- prayer," he later explained, but because "I'm anti-public officials having a role in religious matters. I felt that public officials should be neutral in matters of religion."48
During the next several months Ishmael Jaffree took a series of steps to stop the school prayers. He believed that reminding Chioke's teacher, Charlene Boyd, about legal prohibitions on classroom prayer would end the practice. When this approach failed, Jaffree continued his efforts, culminating in contacts with Abe Hammons, the Mobile County school superintendent. After consulting the school's lawyer, Hammons informed Jaffree in the spring of 1982 that classroom prayers did not violate Supreme Court rulings because the prayers were voluntary and teachers had not been instructed to lead students in prayer. Believing that filing a lawsuit would be enough to alter school policy, Jaffree responded with legal action. When the American Civil Liberties Union declined to take the case, Jaffree convinced Ronnie Williams, a private attorney in Mobile, to represent him if Jaffree would do all the background and legal work. On behalf of his three children Jaffree filed, jaffree v. Board of School Commissioners of Mobile County in Mobile federal court on May 28, 1982. The lawsuit maintained that his children's rights under the First and Fourteenth Amendments had been violated because teacher-led religious activities constituted an establishment of religion.49
The Jaffree lawsuit energized proponents of school prayer as Gov. Fob James turned the legal case into a political issue at the state level, and Dan Alexander, president of the Mobile County Board of School Commissioners, used media attention to maintain a steady drumbeat of criticism of the Jaffree suit at the local level. As media coverage increased, the Jaffrees found themselves in a maelstrom of controversy. Although the family received some verbal insults, harassing letters and phone calls, and mild physical attacks (e.g., eggs thrown at cars), the Mobile community generally responded with ridicule, ostracism, and isolation.50
On learning of the Jaffree lawsuit Governor James identified school prayer as a priority for a special legislative session. James believed that the school-prayer controversy originated from a Supreme Court mistake that had unconstitutionally limited the power of states and thereby deprived citizens of their right to establish laws governing religion. He opposed a constitutional amendment on school prayer because the First Amendment already gave people the right to pray in schools; if an amendment were passed, it would give the federal government, not state government, control over religious activities in school. Instead, he adamantly maintained that Engel was a "tragic error" and that he was prepared to give the Supreme Court "an opportunity to correct its previous rulings."51
In a special legislative session in June 1982 Governor James introduced a bill authorizing teacher-led prayers. The governor's state-of-the-state address condemned the Jaffree lawsuit and Supreme Court rulings on school prayer and advocated a "bill that will insure the rights of teachers and students to pray to God while at school." Included in the proposed legislation was a "model prayer" written by Fob James III, the governor's son and a Mobile lawyer, which read, "Almighty God, You alone are our God. We acknowledge You as the Creator and Supreme Judge of the world. May Your justice, Your truth, and Your peace abound this day in the hearts of our countrymen, in the counsels of our government, in the sanctity of our homes and in the classrooms of our schools in the name of our Lord. Amen."52
The governor's family took an active interest in the prayer bill and lobbied for its passage. First Lady Bobbie James stated, "This has been my heart's desire to see prayer back in the schools. We need to acknowledge God as sovereign over our public schools." Fob James III maintained that the "Supreme Court has allowed a few atheists to deprive our people of the God who created them" and that the model prayer would enable the state to "confront the Supreme Court." Because of the religious fervor of the governor's family, some opponents labeled the Jameses the "new trinity": "Fob the father, Fob the son and the holy host."
The prayer bill was politically popular, especially in an election year, and easily passed the Alabama legislature in July 1982. Jaffree responded by amending his lawsuit to challenge Alabama's 1978 and 1981 moment-of-silence statutes and the 1982 prayer bill and by naming Governor James and various state officials as defendants.54
The 1982 prayer bill also had its critics, including the influential Paul Hubbert, who labeled it unconstitutional. From his perspective as a Church of Christ member, Hubbert found the dictated prayer offensive because prayer was a personal matter. Rev. Earl Potts, a prominent Baptist and later executive secretary-treasurer of the Alabama Baptist State Convention, supported the concept of prayer in schools but opposed the legislature prescribing the prayer, noting that the Supreme Court had already addressed this issue.
The reaction of the religious community in Mobile reflected the same diversity of opinion exhibited elsewhere in the state. Although some maintained that Jaffree was correct in his constitutional views, the more common response was to defend school prayer or to counterattack with charges that secular humanism had replaced Christian education. Rev. Fred H. Wolfe, pastor of Cottage Hill Baptist Church, became a spokesman for conservative Christians in Mobile. A successful and dynamic minister known for supporting racial toleration and integration, Wolfe viewed the Jaffree case as an attack on religious freedom. He interpreted the First Amendment as protecting the right of religious expression and preventing the establishment of a state church. "Separation of church and state are nothing but flag words for those who are anti-religion," he maintained, and "freedom of religious expression is a fundamental right given to us by God." Linking the Supreme Court decisions and the Mobile case with a trend of spreading humanism, Wolfe stressed that the school-prayer issue "was just the tip of the iceberg-and it was an important tip," but the major issue was the effort to remove "God from public life" and to erode the "freedom of expression of religion."
Motivated by an attack on religious freedom "right in my backyard" and involving his community and parishioners, Wolfe believed that the Jaffree lawsuit went "far beyond the matter of voluntary prayer" and threatened the removal "of any vestige of religious activity from the public schools." If Jaffree were successful, all religious expressions such as observances of Christmas and Easter, mention of God, prayer before graduation exercises and ball games, and posting of the Ten Commandments would be prohibited. Although the battle over school prayer had been waged across the nation, Wolfe viewed the Jaffree case as a "chance to be personally involved" in the cause of protecting the "freedom of public expression in the public sector" for individuals of all religious faiths, not just for Christians.56
Several hundred Mobilians and other school-prayer supporters joined the lawsuit as defendants (intervenors) because they claimed that halting school prayer would violate Christians' First Amendment rights as guaranteed by the Free Exercise Clause. Wolfe did not join the intervenors, but he chaired the Religious Freedom Defense Fund, an organization established to raise money for the legal cost of the intervenors. Rev. Paul McHenry, pastor of Ridgewood Presbyterian Church (PCA) in Mobile, joined the intervenors and testified at the Jaffree trial. He maintained that the intervenors were not trying "to establish religion in the schools." Instead, McHenry argued that "people should be able to express their religious beliefs in the public domain... [and] be able to express their religious and cultural heritage without being sued. 57
The movement to preserve religious heritage in Alabama crossed racial lines. In a rare display of racial cooperation in southern life, whites and blacks joined in a common cause of opposing the Jaffree lawsuit. For most blacks in Mobile the defense of religious traditions superseded any racial solidarity they felt with the Jaffrees. Ishmael jaffree claimed that he was "persona non grata" and "had lost credibility in the black community." Initially the lawsuit did not affect the Jaffree children's relationships with friends, but attitudes of African American parents gradually filtered down to the children. Chioke learned from friends what parents were saying about the lawsuit, but his friends continued to accept him and relationships were not strained. Then some African American parents imposed ostracism on the children. Chioke, for example, learned that he was no longer welcome in some of his friends' homes. Resentment within the black community over the lawsuit deepened after 1982 and continued for years.58
The shared religious beliefs of white and black Mobilians eased any racial tensions that might have developed over the Jaffree lawsuit. Although racial epithets and slurs were occasionally used in personal attacks on the Jaffrees, interracial cooperation characterized the public discourse and community meetings on school prayer. Cottage Hill Baptist Church, for example, championed the cause of the defendants, which included black teachers. As teacher and defendant Pixie Alexander stated, the lawsuit was "God's battle," not the teachers' battle.59 By identifying their stance with a defense of religion, whites and blacks found common ground, and religious beliefs took precedence over race.
Preserving American heritage also became a unifying factor. Interdenominational and interracial religious freedom rallies were held to alert citizens to the "grave threat" posed by the Jaffree lawsuit's attempt to "forbid the mention of God or anything religious in nature, including holiday observances such as Christmas, Thanksgiving and Easter." In a letter to the editor that identified America as "officially Christian born," one writer summarized the position of many: "This is the United States of America under God Almighty Supreme, so why can't we go to him, our Maker anytime, anywhere as we please?" Others interpreted American heritage differently. That "America trusts God is no argument to violate her fundamental, founding abrogation of official religion," argued a rare Jaffree supporter. "That the majority seem to want school prayer is the reason the minority must be protected, lest the majority impose its religion on the minority through official channels."6
Opinion on the role of Governor James was divided in Mobile. Some viewed him as an ally, but others believed that his zealous political and legal stance detracted from the central issues in the Jaffree case. In July 1982, for example, Governor James filed a motion to dismiss the lawsuit. The motion revealed that the governor and his lawyers viewed the Christian God as the "foundation of the American legal system" and cast the lawsuit in terms of a religious battle between God and atheism. Claiming that "Alabama's Prayer Law [ 1982] had honored God," the motion maintained that "any person or power standing against this law interposes human government as an idol in the place of God" and asked the following questions: "Since when does the judicial arm of government assert jurisdiction over prayer to the Most High God? By what authority would any court compel the silence of American citizens before their God? Is God any less the Lord when teachers and students are in school?" The motion then cited the Declaration of Independence, the U.S. Constitution, the Bill of Rights, and the writings of George Washington, Abraham Lincoln, and Thomas Jefferson to argue for state-sponsored prayer in school. Arguing that prayer was beyond the control of the government, the motion maintained that the "Founding Fathers knew that jurisdiction over prayer proceeds from the Throne of Heaven, and not from the Supreme Court Building in Washington."61
Governor James again took the offensive after Judge W. Brevard Hand issued a temporary injunction against the 1981 and 1982 prayer bills on August 9. Labeling the injunction "intolerable to a free people" and Engel a "dangerous usurpation of power by the 1962 Supreme Court," James urged school officials and citizens "to stand on their constitutional rights, to ignore this federal court injunction, and to proceed with prayer in the class rooms."62 To block Judge Hand from hearing the case, Governor James traveled to Washington, D.C., in September 1982 to deliver a petition for a writ of mandamus" to the Supreme Court. Written by Hermine Herta Meyer, a Maryland attorney known for her research on the Fourteenth Amendment, and Fob James Ill, the petition argued that the Supreme Court had misinterpreted the Constitution and First and Fourteenth Amendments in Engel. Judge Hand, therefore, had no jurisdiction in the school- prayer case because the Bill of Rights did not apply to states.64
The Supreme Court rebuffed James's attempt. The chief clerk at the Court would not accept the petition because the James administration had violated judicial procedures by not submitting the petition to the proper federal court and then appealing to the Supreme Court. Accompanied by his wife and son, James held a Washington, D.C., news conference in which he outlined his views on school prayer and pledged defiance of the Supreme Court. When reporters asked the governor to differentiate between his defiance of the federal courts and Governor Wallace's defiance of the federal courts on desegregation, James responded that the difference "is that due process was denied by state law to black citizens" and that there is "not one scintilla, one iota's similarity philosophically, politically or operationally between myself and my predecessor."65
When the four-day trial in the Jaffree case opened on November 15, 1982, Judge Hand ruled-despite objections from the plaintiff and Mobile County school district attorney Robert Campbell-that the intervenors could join the lawsuit. This set the stage for the hearing of two separate legal cases in the same courtroom. One involved Jaffree's challenge to teacher-led prayers in the classrooms. The other involved the intervenors' attempt to defend their rights to religious expression and, if the campaign to maintain Christian activities in the classroom failed, to prove that secular humanism was a religion and secure its prohibition from the classroom.66
In his January 1983 opinion Judge Hand acknowledged that teachers promoted prayers in the classroom but claimed that this was legal because the Establishment Clause applied only to the federal government. His opinion boldly claimed that the "Supreme Court had erred in its reading of history" and had misinterpreted the Fourteenth Amendment. The First Amendment, therefore, did not prevent states from establishing a religion. The judge warned that if his decision were overturned he would censor textbooks based on his belief that secular humanism was a religion.67
Jaffree appealed his case, and the Eleventh Circuit Court of Appeals reversed Hand's decision, ruling that religious activities in Mobile County schools did violate the Establishment Clause. In regard to Judge Hand's view of the First Amendment, the Appeals Court rejected his theory of state government exemption and sternly reminded Hand that lower courts could not ignore Supreme Court interpretations and decisions.68
After exploring several options the state filed a petition of certiorari (a request for the Supreme Court to hear the case). The Supreme Court had refused to hear any public school-prayer cases since 1963,69 but the justices granted a portion of the state's petition in April 1984, agreeing to hear only the issues involved in the 1981 "voluntary prayer" or "moment of silence" statute. The Court let stand the decision of the Eleventh Circuit Court striking down the 1982 prayer statute and the state-composed prayer, thereby affirming Engel.70
The Supreme Court heard arguments in December 1984 and issued its ruling on June 4, 1985, by which time George C. Wallace had replaced James as governor and the case was known as Wallace v. Jaffree.71 In its six-to-three decision the Court ruled in a majority opinion by Justice John Paul Stevens that Alabama's "voluntary prayer" permitting a "moment of silence" was unconstitutional because it violated the Establishment Clause. The deliberations prompted separate, concurring opinions by Justices Sandra Day O'Connor and Lewis F. Powell Jr., as well as three dissenting opinions by Chief Justice Warren E. Burger and justices Byron R. White and William H. Rehnquist. Stevens focused his ruling on the intent of the Alabama "voluntary prayer" law. Based on the record of legislators' actions and earlier testimony, Stevens concluded that the 1981 statute was adopted because the legislature intended to support or approve of prayer in Alabama public schools, thus violating the Establishment Clause because the act did not have a secular purpose.72 Stevens limited his decision, however, to the "voluntary prayer" component of the 1981 statute and legislative intent; the ruling clearly implied that statutes providing for meditation, voluntary prayer, or a moment of silence (as provided in the 1978 Alabama statute) were acceptable as long as the statute did not include state endorsement of prayer.
Of the three dissenting opinions, Rehnquist's attracted the most attention. Based on his contention that the intent of the framers of the First Amendment had been misinterpreted, Rehnquist argued that the purpose of the Establishment Clause was to block creation of a national church and to prohibit the federal government from giving preference to one religion or church. Rehnquist provided an articulate expression of the nonpreferentialist view, maintaining that Jefferson's wall of separation metaphor was inconsistent with the framers' intent and lacked historical basis.73
The Jaffree family received the news with a mixture of relief that the ordeal was ended and joy at the results. Because of publicity and peer pressure, the two older children had developed misgivings about the lawsuit. Those feelings turned into pride with the Supreme Court ruling, and Ishmael and Chioke Jaffree viewed the decision as a vindication. Even support from within the Mobile community emerged as numerous individuals belatedly expressed approval for the Jaffrees' stance."4
A justified sense of accomplishment was also evident. Ishmael Jaffree had won a legal victory over the school system in Mobile County. Wallace v. Jaffree became a landmark case in church-state relations and-with Engel, Schempp, Lee v. Weisman, and Santa Fe v. Doe 75-is one of the five school prayer cases decided by the Supreme Court. This represents a remarkable accomplishment for one individual and his family. Without legal assistance except for clerical work provided by the law office of Ronnie Williams, Ishmael Jaffree prepared and carried his lawsuit all the way to the Supreme Court. The legal documents and strategies were perhaps not as sophisticated or polished as ones crafted by experts in First Amendment jurisprudence, but the effectiveness of the Jaffree lawsuit is a tribute to the legal skills, tenacity, and independent spirit of the plaintiff.
Although Alabama politicians opposed, jaffree, their rhetoric was less strident than in the 1960s. Wallace claimed that the Supreme Court "is in error in its ruling" and predicted that laws supporting school prayer would be made constitutional "at some point in time through either legislative, judicial, or constitutional amendment." Alabama senators Heflin and Denton criticized the ruling and urged a constitutional amendment allowing voluntary prayer in public schools. Denton charged that the decision was "a continuation of a distorted rationale that equates the opportunity to pray with the establishment of a state religion." The Wallace administration let the issue drop with verbal opposition. The controversy did not end with the 1985 ruling, but without a state figure leading the charge the school-prayer issue received less attention in the political arena.76
Reaction of Alabama educators to Jaffree indicated that religious activities in public schools were going to continue, especially in conservative districts. Several education leaders readily acknowledged that their systems would defy the ruling. Backed by a political and religious culture that favored school prayer (including teacher-led prayer, Bible reading, and devotionals), many Alabama administrators felt immune from compliance with Supreme Court mandates unless challenged by religious minorities or dissenters.77
A decade after Jaffree, Alabama once again took up the fight for school prayer. Continuing the state's determined effort to circumvent Supreme Court rulings, in 1993 the Alabama legislature passed its fourth school-prayer bill, a statute that prompted educator Michael Chandler to challenge the constitutionality of religious activities in DeKalb County schools. Chandler v. James was filed in 1996 during Fob James's second term as governor, and James and political and religious conservatives infused new life and intensity into the battle over school prayer. As trial testimony revealed, religious activities in classrooms had continued despite Supreme Court rulings...
©Copyright 2001, Alabama Review
