That Time the Supreme Court BANNED PRAYER in Schools... Except They Didn't

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:02 Matt: The appellate court was convinced that just having a prayer at the beginning of the day was not an establishment of a national religion, but just an acknowledgment of our religious heritage.

0:00:18 Jenessa: Hey, well, you know, you're just doing what you want to do. As soon as you're breaking with the larger cultural tradition and your group tradition, you are screwed.

0:00:31 Matt: So, today, JENESSA, we have to discuss the case for which the Stanford Law Review wrote, provoked more outrage than Dred Scott and V. Sanford. It infuriated more areas of the country than Brown v. Board of Education. It inspired more congressional attempts to nullify it and impassioned vows to evade it than Roe v. Wade. And it was intensely unpopular with the American public. The Supreme Court received more mail on this case than it ever received on a single case. Around 5 ,000 letters, mostly negative, in the first month after the decision. In a Gallup poll taken shortly after the decision, registered disapproval of the ruling at 79%. This, of course, is the one Supreme Court case that has contributed more than any to the moral decline of our nation, as I'm sure you know.

0:01:11 Matt: There is nothing that has more contributed to the moral decline than the complete absence, and I mean absence, I mean it's no longer something that can be done, of prayer in schools. Here we are.

0:01:20 Jenessa: As we all know, if anyone were to try to, on their free time in a school, start praying, you get in big trouble. That's totally what that decision means, according to Fox News.

0:01:31 Matt: If you're bowing your head in class, you better be sleeping, buddy. That's right. Let me not see you praying to some higher power. This is, of course, Engel v. Vitale, 1963, another beautiful golden age, war in court and liberal decision, eliminating public prayer in schools, or maybe not. We'll find out. We're going to find out what it actually does. Really interesting stuff, because I knew something about the Establishment Clause. I had a lot of fun reading up on this and researching and thinking about how we got here. We're gonna mostly focus on Engel v. Vitale itself today. There is a long line of cases as I'm sure you know, and a big muddle that came after in trying to understand the Establishment Clause. But this is one of the great Establishment Clause rulings. So I'm excited to get into it. And we'll talk a little bit about the science also behind coercion and making people feel like they have to participate in religion. So come on back and talk about all of that. So a quick prayer break. See you in a minute.

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0:02:31 Matt: So the Establishment Clause of the United States Constitution First Amendment. Congress shall make no law respecting an establishment of religion. So what does that mean? Any idea, actually?

0:02:42 Jenessa: You You know, this seems to be one of the most litigated things. To me, it seems relatively obvious that it's, we're not going to establish a religion, but I mean, I guess you could read it a lot of different ways. Not respecting an establishment is, well, that's pretty broad, I guess, right?

0:03:03 Matt: Well, of course, you remember the next phrase is, or the free exercise thereof, right? So there's the first one that says that Congress can't set up a religion, and the second one that say you can't stop people from practicing the one they've got. This is an interesting situation for me because in this program, we're generally skeptical of originalism, and I think that it generally can be twisted to its own designs. But I do think that the Establishment Clause is one place where it is actually helpful to look at the originalism of it all. I did a little bit of that today. And because the world was very, very different in 1789, 1790, when we're thinking about this stuff, all of the states at that point, except Rhode Island, which is of course the coolest state, pretty much they all had some form of incorporated religion into the legal system, into their governments. That was just normal. They had established religion. Remember, we're talking about England had the Anglican Church that was was actually the Church of England.

0:03:58 Matt: And there's a whole long history. It's super interesting about how through the Uniformity Act, it became the only original religion that was allowed to be practiced publicly in England. You could meet in private, but you couldn't have open public services. I think actually they took a while to even allow Catholics to meet at all. But there was a penalty for practicing other religions in public, and that was removed by the Toleration Act. They let you actually do other religions by 1688.

0:04:26 Matt: There was also the Test Act. The Test Act will be familiar if there's a clause in the Constitution about how there can be no religious test for office, because in fact, there was a religious test for office. You had to prove that you had done communion within six months of holding office, and they had demonstrated opposition to transubstantiation. Very important that you set yourself apart there. Yep, yep, no Catholics allowed.

0:04:25 Jenessa: Huh well named mm -hm oh boy wait I thought communion was a catholic thing but then like no it's the transubstantiation part I was raised catholic so to me I'm always like what parts are which of which oh

0:04:53 Matt: I didn't know I was communing with a cannibal, but moving on. Drinking that blood and eating that body. All right. No stated beliefs otherwise, basically. You didn't have to actually read an essay about what you believed or anything. You just had to follow the steps. So that was the basis for the Religious Test Clause of the Constitution, the idea that we didn't want to have to make people go through these steps. We didn't wanna have any kind of official state requirements. But it is very strange to think about the fact that, for example, in Massachusetts, one of my favorite statutes of all time, this might actually be my favorite statute. And maybe someday we can talk more about favorite statuts. That should just be a question for guests. But MGL 272, section 36, it is entitled Blasphemy. And I'm just going to read it in its entirety. Massachusetts, as I'm sure you know, has a very famous history with religion being incorporated into the government. Of course, we had Puritans, which became congregationalists,

0:05:46 Jenessa: Oh

0:05:47 Matt: Running the place, running most of New England. Their form of immigration was like, would the church let you in, into the local community? And of course, you know new Quakers, new Catholics. Section 36, whoever willfully blasphemes the holy name of God, this is still in our books by the way, by denying, cursing, contumeliously, reproaching God, his creation, government, or here's my my favorite part, final judging of the world. You can't blaspheme or curse the fact that God is going to judge the world or deny it.

0:06:16 Jenessa: So we have a very specific sectarian not every branch of Christianity even believes in that

0:06:25 Matt: Those heathen Lutherans have pretty much thrown the book of Revelation away as I understand it. Or it keeps going, by cursing, or once again that word, which I'm just going to say contemptuously, reproaching Jesus Christ or the Holy Ghost. Imagine going out in public and being like, yeah, screw the Holy Ghost, yeah. Or by cursing or reproaching or exposing to contempt and ridicule the Holy Word of God contained in of the Holy Scriptures, shall be punished by imprisonment in jail for not more than one year, or by a fine of not more Than $300, and may also be bound to good behavior and probation.

0:06:53 Matt: So yeah, you can get up to a year for blaspheming. Blaspheming, it doesn't even say that you're doing it in public. So if they catch you blaspheming in your own house, I guess, now that there's recordings back then, but yeah, this is still in the books. This is still good law in Massachusetts. You can't deny, curse, or reproach the God, his creation, government, women are finally judging the world. I just love that.

0:06:52 Jenessa: A year wow yeah

0:07:15 Matt: And of course, you know, they're just having some fun with old -timey statutes, but it makes the point of how deeply integrated religion was into the state. And actually, fun fact, Massachusetts was the last state to disincorporate church from state.

0:07:14 Jenessa: Wow

0:07:28 Matt: It took until 1833 for us to actually amend. I think it was the 11th Amendment to our Declaration of Rights that got around to eliminating the, I mean, it's just of all places, right? But you know we don't give up easily here in New England. We hold on to things.

0:07:21 Jenessa: Yeah huh huh this whole thing is so interesting because we grew up without this as a thing, I don't even fully understand what it means to have an official church. To disentangle the church from the Massachusetts state government, what did it mean for it to even be entangled? What was it? What is it doing?

0:07:58 Matt: I read that there was one state, I don't think it was Mass, but I think Mass is like this too, but there's one state in particular, I think it Was Virginia, where every taxpayer had to contribute to the building of a church in their community. And the salary was paid by the community, and it was like had to be paid by taxpayers. And they could actually veto some of the liturgy, or they could determine what the liturgy was going to be.

0:08:16 Jenessa: What?

0:08:17 Matt: Yeah, I mean, this was pretty serious stuff.

0:08:19 Jenessa: This is really interesting too, because we always think about the idea of like paying for the church, paying for The Priest, paying that stuff with my tax dollars and the the unfairness to ourselves if you don't believe that faith but the reverse of that is also the whole point of church -state separation also protects the church is like I'm sorry we're voting on what the priest is gonna say in church today the liturgy wow

0:08:45 Matt: Yeah. Apparently, the legislature could control it. This is at a time when, you know, everybody's assumed to believe in God. It's just kind of how you do it. And it's assumed to be some sort of Christian. We're not paying for mosques, obviously. These are going to be some sort of Christian churches. And in the South at the time of the Constitution, I think there were five Southern states that incorporated Anglican churches and New England, with the incredible exception of Rhode Island. I don't know how much you know about Rhode Island history, but Rhode Island, I just want to say to everybody up front, is the coolest state. I will never back down from this opinion.

0:09:15 Matt: Rhode Island is the only colonial state that did not have an established church because it was specifically started by Roger Williams to set up as a place for religious freedom in 1636. These are people who wanted to get away from religion in 1636, and Anne Hutchinson, who was one of the coolest people in colonial history, settled there with her followers and chartered Rhode Island, and so it's always been church-free. The Rhode Island State House, actually, on top of it has a golden statue of an independent man that is their representative, and I just think that's awesome. Meanwhile, in New York, I don't know what you guys were doing, but there were four New York counties along with those five southern states that were Anglican. I was very surprised to read that. The Church of England.

0:09:48 Jenessa: Wait so what's anglican oh okay so there's the church of england because none of them were doing catholic it was all very anti

0:09:57 Matt: The only reason you might remember that England was not Catholic was because Henry VIII wanted to divorce his wives.

0:10:04 Jenessa: Catholic, yeah, I know that

0:10:06 Matt: It's a good reason to set up a country and a state religion. I will point out too that Massachusetts, this is something that I love pointing out, I love posting this as often as possible around the holidays, the observation of Christmas having been deemed a sacrilege, the exchanging of gifts and greetings, dressing in fine clothing, feasting in similar satanical practices are hereby forbidden, with the offender liable to a fine of five shillings. This was in Boston, 1659.

0:10:30 Matt: Christmas, they just thought that was a little too much fun. Couldn't be having it. You couldn't go setting aside one day for that much fun, let alone, you know, like having it be any different than the other day. Very important.

0:10:20 Jenessa: Part whoa incredible wow

0:10:41 Matt: Satanic practices. Yeah. Classic. Classic Boston Christmas. Everybody loves a good Boston Christmas. It's an interesting point because we're going to come around and talk at the end about how the states are thinking about this now and about how The Right is thinking about This Now because there's a sort of a very retro view of the Establishment Clause. You'll not be surprised it's coming in. But it's an an interesting thing because we cannot relate to what it's like to have a state church. And I don't want a state Church. I really do not want to have Kentucky decide that it's a Baptist state, right? That could happen. That's an option under the view that Stephen Miller's organization, as we'll talk about America First Legal, is pushing. They want to Have the States Be Able to Do That. I think Massachusetts could set up a super cool, like, hippie psychedelic church, and maybe I could be on board for that.

0:10:39 Jenessa: Satanic dang all right right

0:11:24 Matt: At the end of the day, no, I still don't want states doing church. And as they love pointing out, the separation of church and state is not in the Constitution. That is something that Thomas Jefferson wrote. One of the things that Thomas Jefferson was most proud of was the Virginia Statute that he drafted that guaranteed religious freedom and kept establishment out. And there was a long process of disestablishing. That's what they called it, disestablishment, of getting the churches out of the states. But there was more tolerance for it than you might expect at the time, based on what I understand here.

0:11:51 Jenessa: For the establishment or the disestablishment

0:11:54 Matt: Now for the establishment, for the idea that some states would just have churches in them. And there was really open question. And in fact, a lot of people would have you believe it is still an open question as to whether, when it says Congress shall make no law, that that means that that the states could make their own law. Then it was just that we couldn't have a federal state church. I got to say, I don't want there to be state churches, but I do understand the argument better than I did. I still don't think it's right. Here's what happens. Kind of like with the second amendment where they just don't touch it for a long time. It goes a very long time where nobody really thinks about if we're establishing churches or not, because as far as they were concerned, they disestablished the churches. They're out of the states. We don't have establishment of religion. And then of course, we start thinking about all the different ways that states are supporting religious organizations.

0:12:34 Matt: You've got more and more people able in society who are not openly Christian or might actually be atheist or agnostic. And of course, you have Jews playing a bigger part in public life and lots of other faiths as well. The reason we started really getting into the idea of America as a Christian nation in the 20th century was because of the Cold War. Anti -communism was very important to us that we emphasize that we are a Christian national. That's when we put under God the Pledge of Allegiance.

0:12:56 Matt: I think it was already on the money. It's important that we start talking about being a Christian Nation, talking about things being under God. It wasn't unusual at all at that point at the time of this case, to have scripture readings, to have prayer in school as part of a daily education. And by 1960, it's estimated about 50 % of the school districts in the United States were doing some form of what we would today find to be unacceptable integration of Christian stuff into schools. This brings us up to 1951, when the New York State Board of Regents proposes a set of recommendations from the Statement on Moral and Spiritual Training in the Schools. So we'll come back and talk about that with Engel, but I want to talk to you first about why it is that maybe if if you're a school child in the 50s going into the 60s, and you're growing up in a home where you don't talk about God, or maybe your parents don't believe in God, or maybe you're parents are Muslim or Hindu, what that does to you to have the school district, maybe not mandate, but strongly encourage that every morning that you recite a pledge to the Almighty God, that you recite a prayer, essentially. And I'll read the prayer, and then I'm going to ask you a little bit about how this works as a scientific matter. And I'm very interested to know what we know about the coercion factor and what it might be like, especially as a young person. Almighty God, we acknowledge our dependence upon thee, and we beg thy blessings upon us, our parents, our teachers, and our country. So of course, as a starting point, I think a lot of people at the time didn't even consider the possibility this was much of a problem because they just assumed that most people believe in God. But even then, plenty of people didn't. This is something, as we'll talk about it, and I'll get into the details of Engel after we talk about this piece of things, but this was not required. It was something that a lot school districts did in New York. But what is the effect of hearing that every day if you don't believe it, or if you do believe it.

0:14:38 Jenessa: Really interested in looking into this from the perspective of how this could affect kids in terms of bullying, ostracizing, and really the way that will shake out in terms of social psychology is in -group versus out -group kind of behavior. The last time we talked about something similar was with the pledge and oaths and being forced to say something we talked about it on a very individual level how it would affect you personally directly and just to refresh our memory on that that would be if you were required to take a pledge of something you agreed with that can reinforce your belief so presumably in this situation for a kid who is strongly Christian, if they're reciting Christian prayer, that would probably reinforce their faith. If you're forced to say something that you strongly disagree with, if anything, that can reinforce your disagreement. So, you know, if you force an atheist or Muslim kid to say a Christian prayer, all you're going to do is reinforce that they are not Christian and that they don't like this and don't agree with this. But if you've got somebody who is either on the fence about it or it's not force it's just kind of social coercion yeah there's going to be a tendency towards pushing people towards the belief so why did I just go along and say this christian prayer oh I guess I must believe it that kind of thing yeah

0:16:12 Matt: Well, even the basic fundamental acknowledgement of God, the binary switch of do I believe in God or not? I don't know. I guess I just said out loud that there's a God who's, you know, I'm hoping he blesses our teachers, right? That seems pretty coercive. Sure.

0:16:20 Jenessa: Yeah yeah absolutely so on that individual level it's going push towards faith belief in general god belief in generally and realistically in our our culture christian belief we we all know what they're doing there right um they often try to make this argument that like oh it could be any god but like we we know you didn't mean vishnu like you meant the christian god so depending on the context it might be more or less clear what you're pushing someone towards that's our really individual level right but the thing I always think about in a school is how it is affecting the way other kids perceive you. A lot of research on this idea of in groups and out groups, the way that we treat other groups of people has really focused on kids and schools because we know that the implicit biases we all have, it's not that you can't overcome them, but they are learned. They are very deep down. They are harder to work through. It would be really cool if we could intervene in kids and prevent that from forming, right?

0:17:33 Matt: Yeah.

0:17:33 Jenessa: The problem is a lot of research has shown this stuff shows up as early as preschool, where kids are showing positive views towards their in -group and negative views towards the out -group. Those are separable effects, so it's not just like relative to one another. They prefer the in -group. There's also benefits that go towards the in group, things they will do for the in group that they will not do for The Out Group, and also negative things that happen for the outsider, the ostracized person.

0:18:08 Jenessa: There's not a lot of research on specifically how does having prayer in school affect in group and out group behavior? Because by the time social psychology was really behaving as a science and collecting this kind of data, we didn't have that. We had these court cases that were stopping that kind of thing, obviously in private schools. But in a private school, everybody went there, presumably because you had the same religion, right?

0:18:38 Matt: You're open to it.

0:18:40 Jenessa: One would think for the most part.

0:18:43 Matt: Sure you don't mind hearing about it.

0:18:44 Jenessa: You know, I could swear when I went to Catholic school for like two or three years when I was a kid, I swear there was a rumor that there was a Jewish girl at our school and I don't think I ever met her. I don't know if it was just kids making stuff up or if it was somebody who didn't like the public school. I don't know. For the most part, I'm pretty sure everybody who went to the Catholic school was Catholic because you wanted to be Catholic, right? In the public schools, there wasn't this kind of sectarian prayer or really any organized prayer happening so we don't have this research we do have a ton of research on generally how kids are in group out grouping each other over race religion ethnicity and just the way they group one another I'm a football player you're on the math fleets you're the chess team you're a cheerleader whatever like kids do group themselves that way right oh yeah mm

0:19:38 Matt: And this goes very much to Brown, everything we talked about with Brown, about self -image and how people associate and all the things, all the ways that carry through to the rest of your life. And you can see how both in Brown and in Engel here, how parents in in the communities. We get worked up with the idea of the way that we are influencing what children think.

0:19:53 Jenessa: Yeah exactly there's one study I thought was really informative on this as I was going through and I thought this was really smart they picked out something that was not at all like race or religion where there would be any temptation to like you know be more gentle about what you were gonna say it was just about made -up scenario of kids at school and a tradition about wearing team t -shirts and it's like all right so say how you feel go ahead and And there's no deception in this one. I know most of the ones we talk about were like lying and sneaking around and telling people all kinds of nonsense. This was just, hey, imagine the scenario and this is fourth, eighth, and 10th grade. They're old enough to do this kind of imaginary play and engage. Basically what they set up is here's a club at your school. I'd like you to just imagine you're part of the club. Here's a picture of them. Here's picture of a club at a neighboring school in your district. You know, it's just like a bunch of random kids. And the tradition in this district, when you guys all come together, all the clubs, everybody wears T -shirts that are, you know, you put your club name on there, your school name, whatever. Whatever. What they're going to do then is set up different conditions. So they're going to say, hey, and your team, your team loves this. They really get involved. They participate in the tradition. Or you might be part of a team that they don't really like the tradition, they don'T usually show up in their matching t -shirts to the thing. It's not a requirement, so they DON'T go along. And then they'll show you somebody and say, okay, so this is a member of your team and they either either went with you, went with the group or didn't, right? So you're a team who doesn't normally wear the t -shirts. Here's a member of your team who showed up wearing the shirt. How do you feel about that? Scale of one to six. Six, it's totally fine. Do what you want. One is totally unacceptable. When it's a number of your group, they're going to say, no, can't do that. We don't wear the shirts. You're not supposed to wear the shirt and you ask why and you're going going to get reasoning that is group cohesion based. Most people are going to say things like it's going to disrupt the functioning of the group. You're messing with the way the group works, that kind of thing. But then if they say the same thing about the other team, hey, this is some group, an out group, from the other school. They normally don't wear the shirts, but one of their teammates showing up wearing one of the shirts. How should they feel about that? Is that okay? People generally say, yeah. And if you ask why, you get autonomy -based reasoning. They're going to say, well, she's just doing her thing. She should be able to wear the shirt if she wants to. What is that? Basically, this person broke with group tradition, but they went along with the larger cultural tradition. Oh, they're some big group rebel, but not really, right? Because they're rebelling to do what everybody else is doing. When it was somebody in your group, they were messing with group cohesion, they were messin' with group identity, and that's bad. If they break with your group it doesn't matter how they did it, you have a problem with it. When you look at the out group and see somebody break with their own group but do what the larger cultural tradition is. People are like, yeah, whatever. They're doing their own thing. It's fine. Flip it around. We have that district tradition. Everybody wears the shirts, but your group also loves this tradition, wears the shorts, and you have a teammate show up who doesn't. Or the out group, they also love wearing the shirts and they have a roommate show up who doesn't everybody universal, like, no, we hate this. Don't do this. You can't do that. And what I thought was really interesting was the fourth graders, they're still giving group cohesion reasoning. You are messing with the way the group works. This is going to make us not work as a team. By 10th grade, they are giving loyalty -based reasoning. Somebody says, she's just doing what she wants. She doesn't even care about us. What does this all bring us back together to say? If there's a general cultural tradition you can break with your group norms and go with the general cultural traditional tradition and yeah you might be punished by your group but like you're kind of just you're doing the thing it's fine as soon as you are breaking with a larger cultural tradition you're in trouble with everybody I think in a lot of ways this almost makes the christian kid who doesn't want to do this in the worst position, the cultural tradition, the school district tradition all of a sudden becomes, we're going to say the prayer. It would be part of your in -group tradition to say The Prayer. If you don't want To Do It, you got to double whammy. You can't join the other groups. It's Ruthless High School.

0:20:27 Matt: Interesting.

0:25:09 Jenessa: You're an outsider. You are not going to get from the outgroups that little bit of like, it's okay of, hey, well, you know, you're just doing what you want to do. As soon as you're breaking with the larger cultural tradition and your group tradition, you're screwed. You're getting punished from every direction. Taking all of this all together, looking at how kids not just engage in in -group, out -group but reason about why it's okay to denounce somebody's otherwise just random autonomy. I think it's extremely concerning that we would look at kids being asked to, okay everybody let's go along with we're creating a district -wide tradition that we all say the prayer now, and Muslims, Jews, I guess you can just not say it, but now what? Now Now, you can't leave your group. You can't join this other group. You're just getting hit from every side.

0:25:28 Matt: I think in a way, this is actually even more coercive because this is specifically talking about God. So this is really the binary of like, do you believe in God or not? Because Muslims and Jews can stand there and ask God to bless their teachers too. Maybe it's not the phrasing they would use, but it's still definitely coming from a Christian place. But if you just want to stand there, and say something you believe, this was simple enough, I think it was designed so that it didn't have to be. So this is even more counter-majoritarian, and this is a classic counter-majoritarian decision. Of course, those of us to the left of things generally think that that is the purpose of the Supreme Court, is to make sure that the minority's rights are protected at all times.

0:26:41 Matt: As necessary, even that means standing up to the majority of people who want something different. And that was a big part of the argument in this case. The one side is basically saying the minority is trying to control everything, the other side is trying, trying to say we have to protect the minority against the majority.

0:26:53 Jenessa: I think it's a really good point, too, to say not only do we have this sectarian aspect, but we also just have this general, like, God-belief, not-God-believe aspect. It is a way to try to get around it, right? To be like, oh, we're expanding the group even bigger. Like, no, no. We're not saying they all the time. This is the reasoning, right? Well, first of all, I'm sure we would all argue, yeah, I don't care if you're ostracizing 30 % or 2%, you're still ostracising people. It does become relevant because there's a conflict in the literature where some research seems to show if you do what's called priming, basically, you kind of like sneak in little hints about things people might not notice, but it influences their behavior. If you prime people with certain religious things, sometimes you get better behavior sometimes you get more of this in group out group stuff so like what the heck is that about it seems like if you really generically prime religious moral concepts like God is watching yeah people seem to behave a little better because it's like well literally anyone is watching so I will behave better that's that's a thing humans do right that could be coming from anywhere that could be coming form humans behave better when they're being watched That could come from, you know, thinking of it as people are trying to be better, an actual intentional moral decision, however you want to think about it. The more sectarian a prime was, the more it pushed towards in -group, out -group. So when you very specifically primed like Bible, Jesus, that's obviously Christian, right? Instead of kindness towards the out - group, you got favorability towards Christians and disfavorability towards atheists and non -Christians. I think it will be easier to get away with some of this stuff if you're like, no, we're just vaguely saying this. But really, there's a big difference between saying, like, do good, be good, generally, you know, invoke whatever your morals are, versus when that prayer says, like we are bowing to God, that's not saying

0:29:06 Jenessa: Do nice things, because whatever your moral thing is, that thing is watching you. I am submitting to a god now we are invoking that in -group out -group thing of like uh there are people who submit and there are people who don't the more sectarian it gets the worse it's gonna get in terms of grouping up some people and not others but of course yeah I whatever one percent are left behind is unacceptable because we're literally talking about children it couldn't be more serious in that circumstance

0:29:41 Matt: That makes a lot of sense. And it certainly fits my understanding of why we need these kinds of counter -majoritarian decisions. There's an open question about whether the court was actually being counter - majoritarian that I'm sure we'll get to when we talk about Engel, because I think that they did not understand the firestorm this is going to set off.

0:29:56 Matt: At the time, I mean, generally public life is Christian, is sort of openly Christian. And we don't have the diversity that we are so used to today of faith and ideas. And of course, the people running the world and running the country are white Christian people. To them, as we'll talk about, but I think this was a fairly clear case of just the Constitution says that you cannot have the state do anything that makes it look like it's actually endorsing religion.

0:29:55 Jenessa: Interesting

0:30:20 Matt: But let's come back and talk about how this has evolved and what it meant and kind of what this case actually comes down to.

0:30:18 Jenessa: Yeah

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0:31:59 Matt: All right, the history here, I should talk a little bit more about how this prayer came to be, because as I'm saying, this is a Cold War thing. It's called the Statement of Moral and Spiritual Training in the Schools. Essentially, it's just they're trying to get respect for lawful authority, obedience to law. They want to sort of expound and strengthen everything they're already learning from his or her religious leaders. And again, we're assuming that children generally have religious leaders at home. They're going to church. The New York Supreme Court in this case in 1960 had some astonishing language about how they quoted something and said that they endorsed this completely as a concurring opinion. Belief in dependence upon Almighty God was the very cornerstone upon which our founding fathers built. This concurring opinions said, it doesn't constitute religious teaching because all it does is just acknowledge the existence of God, and then we depend on him. That's not religious teaching.

0:32:48 Matt: Yeah, and it's like the old joke about the old fish swimming by the young fish. You know that one?

0:32:44 Jenessa: Yeah totally not religious

0:32:53 Matt: The old fish says, hey, how's the water, boys? And the fish look at each other, and they're like, what's water? It's that kind of thing. It's just the water you're swimming in. You don't even know that you're swimming in it. There you go. It'S not a very funny joke, but it's always helpful to understand the ways people get stuck in things. This statement was not mandatory. I think that's very important to understand, too. And it took six months before a New York school decided they were going to take it on. And generally, Catholics were into it. Protestants were split. From what I read, obviously, the Jewish and civil liberties organizations were opposed in principle. Everybody understood this was a Christian statement. The regulations also required that if you were going to do this voluntary statement at the beginning of the day, that none of the teachers or administrators could comment on the participation or non -participation or make anybody stand up or sit down or do anything in particular. It's just kind of, we're going to do the prayer now.

0:32:52 Jenessa: No I don't, oh yeah, oh I, I get it now

0:33:36 Matt: New York City, I will say to their credit, New York City specifically refused to mandate the prayer, and And they opted for something else entirely. I couldn't find what it was. Seven years later, there's a Long Island school district. The New Hyde Park Board of Education, Union Free School District No. 9, decided that it was going to implement the prayer. Six months later, they get sued by a collection of Jewish, ethical, culturalist, Unitarian, and agnostic parents. They've got 10 children.

0:34:00 Matt: So Engel is the named plaintiff. And they sue the president of the Board of Educations, Vitale. The first writ of mandamus to ask the school board not to allow this and to keep the schools from doing it was denied, as I said, because generally speaking, they thought this was a matter of tradition, not of faith, and they were required to allow kids to step out or come to school after the prayer if they wanted to skip it. So they actually were thinking about all these accommodations silently.

0:34:22 Jenessa: I'm assuming you mean they could also choose to sit in the classroom and just not say it right it's not like you had to leave okay

0:34:30 Matt: The appellate court affirmed that, but then also rolled that back and said the children had to stay in the classroom and stay silent. They said that prayer was not to force them to sit there through it, which is probably worse. I guess they just didn't want kids wandering around. Sure.

0:34:44 Jenessa: Yeah I see, at first I was like really you you have to leave. And then it's like, no, wait, it's some of them would want to not even have to sit through it. So yeah, I get it now.

0:34:54 Matt: The appellate court was convinced that just having a prayer at the beginning of the day was not an establishment of a national religion, but just an acknowledgement of just our religious heritage. And this is how it gets to the Supreme Court. There's a lot of misunderstanding, and we addressed this kind of at the beginning about the fact that kids are still allowed, if they want to, to go to a quiet place and pray.

0:35:13 Jenessa: So are teachers also. Yeah. Hmm.

0:35:15 Matt: Right, of course, of course. And if you just want to bow your head in the middle of a day before a test or whatever, that's between you and whoever you believe you're talking to. That really is not anything that the school has any say in or should have any say In. You should be able to sit and meditate for an hour if you want to at lunch. I mean, whatever you want to do. But this ongoing line that they eliminated prayer from schools was very much kind of the takeaway from this decision. That's what a lot of Americans still believe, but certainly most Americans at the time believed that because the media did such a bad job of reporting what actually happened in Engel. So what actually happen was the justices did what originalists complain is a pretty bad summary of church and state relations at the time of the founding. And I don't know enough about the history to know. I think it is a little glib. I think that there's probably some more subtlety to it, but I think it's a pretty solid overview and angle of how we got to this point. And the fact that by the time you're getting around to writing the Bill of Rights, that people like Madison and Jefferson were opposed to religious establishments, and more and more people were saying it's time to get the states de -churched, to disestablish religion.

0:36:17 Matt: The lead up to this, though, is that in 1947, as I mentioned, this is one of those things like the Second Amendment where the establishment clause had really gone uncommented upon. It really wasn't something anybody was challenging or taking up, we're thinking about in the courts. It's hard to imagine now because there's been so much litigation out over in the 20th century.

0:36:28 Jenessa: Non -stop since then, right?

0:36:35 Matt: Oh, it's, yeah, non-stop, absolutely. Because there are a lot more people who are motivated and realize and know their rights that they don't have to have religion in the public square if they don' t want it. And we're trying to be careful to maintain a pluralistic society. But in 1947, in Everson School District, the court came out swinging and found, to many people's surprise, that when it says Congress shall make no law law on respecting the establishment of religion, that that actually did apply to the states. And of course, there was a whole trend of incorporating, and pretty much the entire Bill of Rights is incorporated at this point into the states, so it's not just federal, that all the states had to follow this idea that you can't establish your religion. This is very unpopular. There is still a movement on the right to try to undo Everson and to say that that never should have happened, that because of the history and tradition of the United States, of the idea that states did have churches built under them, and it wasn't that unusual, that we should go back to a time when we can establish religion at the state level. And that, before this decision in 1963, was kind of the last big case on the Establishment Clause. And even in that case, they were upholding the idea by 5 to 4 that New Jersey could reimburse kids to get onto buses to go to parochial schools.

0:37:42 Matt: So that was the first time they've really spoken on the establishment clause, and they basically come down in favor of the establishment. So I thought that was interesting. This decision, though, I think is pretty straightforward. And it goes through this history, and it just says this is what the founders are trying to avoid, that they really, really didn't want people to feel like they're being coerced or that we're setting up any kind of state religion. We don't want to take steps in that direction. And just because it's a short prayer, just because it only mentions God and doesn't mention any specific religion, it doesn't mean that it's not a dangerous to religious freedom. And he cites James Madison at the end, this is Hugo Black writing. For Black, this was very clear. Black was very much a First Amendment absolutist. And it was very clear to him that this is what the founders wanted. He was one of the many people who was very surprised by the reaction to this case. He wrote to his niece just a few days after this case came down. The basic premise of the First Amendment is that people must be left to say their prayers in their own way and to their own God without express or explicit coercion from any political office holder. There are not many people with religion and intelligence who will think this constitutional principle wrong on mature second thought. I don't know how many mature second thoughts there were because,

0:38:43 Matt: As I said, the public polling was very bad on this. There was already a movement building, but this really got it going to impeach Earl Warren. It just became a big talking point for years. This is nine years after Brown. And of course, we talked a little bit about the firestorm that Brown set up, but that was kind of a slower moving one. This one was immediate. We've got Red Monday we talked about, where they kind of at the high point of defending political diversity, that they were defending things that people thought seemed communist, or that it seemed like they were defining people's right to be communist. They watered down the definition of obscenity, all these other decisions. We have got Miranda, we have got Gideon, all these others are coming, right? But this one, there are so many people that got so mad about this. Our outstanding research assistant, Olivia, who had people at her birthday, collected some headlines and quotes for me from the contemporary coverage. And so you've got headlines like, Court Outlaws God, School Prayer Ruled Out from the LA Times, Supreme Court Bans School Prayer, Chicago Daily Tribune, No Praying in School, Court Rules, Possible End to Christian Jewish Holy Day Activities in Public Schools as Court Bans New York Prayer. That's a little closer to home because that actually is what happened. You no longer have Christmas explicitly you know explicitly in schools there was just so much anger an outrageous edict bold malicious atheistic and sacrilegious twist yeah this is these are from elected representatives

0:40:03 Jenessa: It's so wild too, because he makes such a good point. You're supposed to be able to pray in your own way like there are plenty of sects of christianity who would find that prayer objectionable either the fact that you're saying it out loud in front of other people that like you know prayer is supposed to me private or the fact to that it is like this very submissive tone and that like, you know, they take a different tone towards God. Obviously so So much of this at the time is going to be pro -Protestant and anti -Catholic. The more sectarian you let it get, Catholics are just instantly out the window. And obviously, forget any non -Christian group. But like, it's so funny to me to see people freak out that this is like kicking them out when he's making such an important point about how it is protecting even Christians who might disagree with that manner of that prayer. Like there's there's such a narrow group of people who are enjoying the fact that this is happening oh god it's frustrating of

0:41:09 Matt: Yeah and remember this is the first as we talked about the first in the round of a long line of establishment clause cases that we don't have time to talk about where they're starting to pick apart every part of public life and every partof school life and trying to figure out you know where you can put a christmas tree if you can't put a Christmas tree a lot of these are about christmas displays or about displaying the ten commandments and all these other things And in a footnote in Engel, they did acknowledge that there's nothing here that we're saying that's inconsistent with the idea that kids can read historical documents like the Declaration of Independence or the Bible in school, like you can read it as historical documents, right? Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise the state of New York has sponsored in this instance, right?" It's like the valedictorian wants to use a Bible verse in his speech, right, I mean that kind of thing, right that's like you're not establishing religion. The New York Times actually just does an interesting historical note, and I will say this is a beautiful defense of the value of footnotes. The New Year Times published the entire Engel decision, but without the footnotes.

0:41:26 Jenessa: Course no

0:42:06 Matt: There's some good footnotEs in Engel, too. The public missed out on these little subtleties about how they're not trying to just remove God from school or any mention of God. They're just saying you can't have administrators standing up in front of everybody and reciting a prayer together in which they all invoke God to protect them. And of course, they make the point, even the decision, and Douglas says this as a concurrence as well, that, you know, of course we open the sessions of the Supreme Court with God save this honorable court. You go to Congress, you hear an opening prayer. Now it's going to be, now it's gonna be opening prayers from different denominations every morning. But, you Know, of Course, schools are different. And as you're saying, there's a lot of really good psychological reasons to not have children, especially feel forced to do these things. And there's a big difference between attending a session of the Supreme Court and having them say it as a ceremonial thing versus everybody starts off your homeroom school day by reciting a prayer asking god to bless your teachers it can see the difference

0:42:56 Jenessa: All the jews can go stand in the hallway

0:43:00 Matt: Sure sure yeah yeah right it doesn't feel great all of the atheists and ethical uh humanists and everybody else like they're just all shut out and I think actually the worst quote that we found here from Representative George W. Andrews from Alabama no surprise they put the racist slur here in the schools and now they've driven God out. So that's a perfect combination of hate for Brown and hate for Engel.

0:43:00 Jenessa: Like no oh no oh oh that took a minute to register oh my

0:43:31 Matt: Yeah, no. Six years later, 78 % of people surveyed by Time still believe that all school prayer was banned by this case. And that's just not what happened. Congress actually tried to hold hearings for a constitutional amendment to allow school prayer, but it got so complicated that they just gave it up.

0:43:48 Jenessa: Yeah it's almost like it's difficult to figure out a way to do that in a way that would please everyone and is ethical yeah

0:43:59 Matt: Right. Right. So it's interesting because it's just this little 22 -word prayer. It's not that big a thing, but it is everything. And I think today it would be very jarring to walk into a school and hear a bunch of kids reciting that like it's the Pledge of Allegiance, or to even just hear administrators reading it over the PA or whatever, right?

0:44:17 Matt: We have come a long way on this.

0:44:16 Jenessa: I don't know about you so I'm growing up in new york you know liberal state but a very catholic state and mostly in a public school I was very much exposed to lots of different people believe lots of different things and that's okay and you all have to just be okay with that and respect that like that was very much the attitude there was a lot of active push to respect the existence of different religions and different belief structures I don't know I worry we grew up in a very interesting time window where that was I hope that's not shrinking I guess is what I'm saying I I hope we aren't the last ones to experience that.

0:45:02 Matt: We should come back and talk about that, because there is a pretty hard push in the other direction. So let's take a break here and come back to talk about the reestablishment of religion in the States.

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0:46:41 Matt: All right, so I'm going to skip over decades of Supreme Court history, because we are trying trying to focus on the good stuff. This was an unequivocally good decision. By the way, it was eight to one with Justice Stewart. Potter Stewart was the only person dissenting. He didn't think it was such a big deal to just have a prayer in the school. He thought kind of the same line of logic that Douglass is talking about the occurrence that we already do this in Congress. We do it in the courts. We're not establishing religion here. We'll just say in some words. But as I'm sure you know, you might remember the lemon test comes into effect in 1974. It becomes this whole mess back and forth. It's pretty much dead now. But then, And of course, we get Kennedy v. Bremerton School District in 2021, which famously is the praying coach case. We've talked about it many times in this program about how deceptive it was and how badly it was set up. The scary thing to me, not just the open lies they used to get there that Gorsuch based Kennedy v Bremerton on, America First Legal, which is Stephen Miller's outfit, his legal organization, decided to take it upon itself to file an amicus in this case. And then they had a press announcement afterward, too, as well, about what their intentions were. They were very clear in this brief that they thought that the Supreme Court needs to pretty much kill the Establishment Clause at the state level, that there's absolutely no reason. There's no, quote, privilege or, quote immunity to be free from an established church when the First Amendment protects the rights of states to preserve their established churches. Imagine saying that in 2021, the right of states To preserve their Established Churches.

0:48:05 Jenessa: Don't have... All right. That's nothing.

0:48:07 Matt: Yeah, right. No, I know. If they don't now, the court should overrule its decision. It should overrule Rule's decision to incorporate the Establishment Clause, it should eliminate the Establishment Clause constraints that it wrongly imposed on the states and school officials. They had a press release after Kennedy v. Bremerton came down their way. And here's the actual statement from AFL in the press release. AFL is hopeful that the justices will build on this ruling and eventually disincorporate the EstABlishment clause, which fully protects the rights of states to decide whether and to what extent they will establish religion within their borders. In the meantime, AFL applauds the courts for ruling in Coach Kennedy's favor and against the witch hunts that militant secularists are directing at people at faith. It's incredible. I mean, this is how you literally got witch hunks was incorporating. If Massachusetts hadn't been a hardcore Puritan government, think about that. They believed in the devil as

0:48:55 Jenessa: I didn't even put the two together. Of course, Massachusetts.

0:49:00 Matt: A matter of law. The devil exists, right? So like the devil talks to you and you could just take testimony from ghosts because inspectors, because everybody believed in this stuff. Honestly, now that I'm mentioning this, we're getting to October now, the Salem witch trials really is pretty much the best single example of why you really can't establish a religion in your state border.

0:49:20 Jenessa: What do they think the Establishment Clause is supposed to mean?

0:49:25 Matt: What they would tell you is that the people who wrote the Constitution did not want to establish a national religion, but they fully understood that there were already state religions. So if the different states want to do in their laboratory of democracy kind of sense, if they want to set up their own little state religions, they can do that.

0:49:39 Matt: That's the argument, and that's what they're pushing.

0:49:38 Jenessa: So there there can't be a federally established religion and also you federally can't prohibit the free exercise of religion do they think the states can prohibit the free exercise of religion

0:49:55 Matt: I would think we're going to get a lot of curtailing of the free exercise if you're going to, I mean, right,

0:49:59 Jenessa: If you're gonna establish I've heard of an amendment being incorporated the states are not being incorporated I've never heard of parsing it on that level

0:50:10 Matt: Or disincorporating. As far as I know, we've never taken it back after deciding it is a state of thing.

0:50:14 Jenessa: Oh no this is really bad

0:50:18 Matt: Clarence Thomas wrote specifically, it does not say that Congress shall make no law establishing a religion. It prohibits Congress from making laws respecting an establishment of religion, which means it prohibits Congress from enacting laws that establish or disestablish churches in the states. And I really think that's what they believe or what they want to believe, certainly. This is another conversation I'd love to have somebody on from one of the many organizations that could better speak to this. It's looking out for keeping religion out of the public square.

0:50:45 Matt: You know, this is something that's personally important to me, and I know a lot of other people, and many of our listeners certainly. Freedom from religion, right? That we should not have to have, I have no problem with freedom of religion, but I want to be free from it if I want to be freer from it. And I don't think anybody should have to necessarily sit through a prayer to somebody else's God, or a God they don't believe in.

0:51:04 Matt: I guess I'll close out, but have you caught the whole thing with the Bibles in Oklahoma?

0:51:02 Jenessa: Well I'm in hell oh god I can't with this all right because it's not just that he that would be the most sectarian possible choice to like really home in on not just a religion but a very specific religion the wildest part is that he really wanted it to be those like

0:51:29 Matt: Go big. Get the Trump Bible.

0:51:30 Jenessa: Gold trump bibles he was trying to buy which

0:51:31 Matt: They were going to spend money on the Trump Bibel. I think they did.

0:51:33 Jenessa: The bible is like one of the only books you can just get for free freaking anywhere someone will hand you one and you're gonna pay for like a really expensive one and once again there's like 400 different versions of the bible like which I don't I'm assuming it's king james just because I donno which version that one is that's not the catholic one it's a protestant one so that fell through for the most part

0:51:59 Matt: It did, yeah. They amended it. Originally, they had basically tailored the order for 55,000 Bibles so that it matched the Trump one, so that you could pretty much only buy the Trump one, that it had to include U.S. historical documents because, of course, you've got to include the Bible along with the Declaration of Independence and the U.S. Constitution. It's all the same thing.

0:52:19 Jenessa: Right which no bible does except for this weird trump issue yeah

0:52:23 Matt: Yeah, this is the God bless the USA Bible. But Oklahoma did amend that down so that it could buy other Bibles. But of course they're still putting Bibles in schools, which again, I have no problem with having the Bible in the library, but maybe forcing children to have a Bible or read a Bible as part of their education, other than as literature or as history, it becomes a problem.

0:52:43 Matt: But Ryan Walters has been pushing it really hard. The state superintendent in Oklahoma is pushing this extremely hard to the point that I think they are trying to set up this kind of a challenge. And one way or another, there's going to be a challenge like this that we'll get to the Supreme Court very soon that is going to ask them to disincorporate the Establishment Clause from the states. And this is exactly the kind of thing they would do if they could rewrite the constitution, but they don't have to because they have the Supreme Court now. Yeah.

0:53:07 Jenessa: Don't even know what to say that it's just so unfathomable to me there's so many rights that could get stripped away that are really hard to wrap our heads around but this is one of the ones that's like come on the idea that we would formally establish a religion I I still hadn't heard this one that they were actually I heard about we're gonna try to put a bible in the school and pretend we weren't formally establishing a religion but I'm just truly in shock that somebody's trying to argue no we can formally established

0:53:43 Matt: No, that's pretty much it. I'll kind of wrap things up here at the end of the decision, because I know that there might even be people listening who very much like the people reading this in 1963 might think, well, what's the big deal? It's 22 words. People can sit through that or not sit through it. They can close their ears. They kan think about something else. They kann meditate.

0:54:00 Matt: And that's still something that a lot of Christians say today. And it's interesting, everything we're just talking about with this AFL argument and in this general and conservative view that it should be disincorporated. This has been just very much like with Roe. It's been many, many, years, decades of a project to try to get Engel v. Vitale specifically overruled because they're so offended by the idea that we can't have a simple prayer read to kids in school. But I'll just read this from the end of Justice Black's decision. To those who may subscribe to the view that because the Regents' official prayer is so brief in general, there could be no danger to religious freedom in its governmental establishment it may be appropriate to say in the words of James Madison the author of the First Amendment it is proper to take alarm at the first experiment on our liberties who does not see that the same authority which can establish christianity in exclusion of all other religions may establish with the same ease any particular set of christians in exclusion above all other sects that the same authority which cannot force a citizen to contribute a three pence and leave his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever easy

0:55:00 Jenessa: Wow mm -hmm yeah yeah

0:55:02 Matt: Enough and I think that they really thought this this simply I I think they really didn't believe this is kind of majoritarian. I think They thought they were just reading the words of the First Amendment and saying, we can't have this. This isn't what it was designed to be doing. That we're following Madison and Jefferson and their ideas about keeping things out of the state. They were not prepared for this firestorm, and it has continued to rage since that time. And I think, like I said, another time we're going to have to come back and talk about the history of establishment clause litigation and where this is all gone. But for now, this is one of those classic, short, simple, to -the -point warrant court decisions. It's exactly the kind of thing that I wanted to talk about. And it made a bunch of people mad, like a lot of the best decisions. So I think they're doing something right.

0:55:41 Matt: Okay, everybody. Well, this is good. We will come back for some more classic Warren Court stuff pretty soon here, but I'm really enjoying getting to know these cases a little better, these things that I'm reading about distantly in law school. We're going to be coming back soon with a very special episode with my constitutional law professor, Michelle Adams, who has gone on to write the book on the legacy of Brown v. Board. So, I'm going to do the second part of our Brown series here by talking about Milliken v. Bradley, which Professor Michelle Michelle Adams makes the very compelling point, pretty much ends Brown, as we know it, and generally just see what's been going on with Michelle Adams since she gave me a B 23 years ago.

0:56:16 Matt: I don't hold it against her. I earned that B. I completely earned it. All right. I'll see you next time.

0:56:14 Jenessa: Called out see ya

0:56:59 Matt: I didn't know I was commuting with a cannibal, but moving on. Contemio. Oh, no. I always have trouble with this word. And it's like the old joke about the old fish swimming by the young fish. You know that one? The old fish says, hey, how's the water, boys? And the fish look at each other and they're like what's water it's not a very funny joke

0:56:59 Jenessa: Oh well uh -oh