In Search of an Establishment Principle: The Original Understanding, Pre-Game Prayers, and Aid to Religious Schools

Abstract

Two cases decided during the 1999-2000 term of the United States Supreme Court addressed a question that has perplexed the Court for more than 50 years: what constitutes an establishment of religion? In Santa Fe v. Doe,1 the Court ruled that student-led prayers at high school football games violated the Establishment Clause. Mitchell v. Helms2 held that a federal program placing computers and other instructional equipment in parochial school classrooms did not violate the clause. The decisions in both of these cases were accompanied by dissenting opinions that presented alternative interpretations of the Establishment Clause.3 In Santa Fe, the majority of the Court reasons that even if the decision to have a pre-game prayer is made by students, the prayer has the effect of coercing those attending the game to participate in an act of religious worship. In his dissent, Chief Justice Rehnquist, joined by Justices Scalia and Thomas, characterizes the Court’s opinion as hostile to religion. Rehnquist recalls that George Washington proclaimed a day of “‘public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God,’” thereby setting a precedent for the support of religion.4 In addition to straying from the original understanding of establishment, the dissenters also believe that because the policy in question has not yet been implemented, the decision is beyond the proper reach of the Court. In addition to Washington’s proclamation of a day of thanksgiving and prayer, other statements from that era support the view that at the time of the founding, religion was regarded as an important aspect of the nation’s political life. In his Farewell Address, Washington stated: “‘Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.’”5 Thomas Jefferson made this statement in his writings: “‘I consider . . . religion a supplement to law in the government of man.’”6 Both of these statements recognize the