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

Abstract

In the summer of 1997 Governor Fob James of Alabama threatened to call out the National Guard to protect the right of a county judge to display the Ten Commandments in his courtroom. In defense of his action, James argued that the First Amendment simply did not apply to the states.1 At the same time, the American Civil Liberties Union filed suit on behalf of the lone Jewish family in Pike County, Alabama, whose children had been harassed repeatedly in the public schools. The Pike County schools regularly held overtly Christian classroom and assembly activities. The superintendent allegedly told the family that the harassment would stop if they converted to Christianity.2 The year 1997 was also unusually important year for church-state issues at the Supreme Court. In Agostini v. Felton, a 5-4 majority reversed the 1985 Aguilar v. Felton decision that had halted a New York City program that sent public school teachers into religious schools to provide remedial education.3 Aguilar had been, as one writer put it, an emblem of the Court's 'strict separationist' interpretation of the First Amendment.4 The Court had allowed remedial education in a temporary building across the street from the religious school, but not on school property itself. By overturning Aguilar the Court appeared to strengthen the case for the constitutionality of publicly funded vouchers to enable students to attend religious affiliated schools. As predicted by many commentators, on November 9, 1998, the Court denied certiorari in the case of Jackson v. Benson, a Wisconsin Supreme Court decision upholding Milwaukee's school voucher program.5 More controversy, however, attended the case of City ofBoerne v. Flores, which invalidated the Religious Freedom Restoration Act of 1993, itself effort by Congress to reverse the Employment Division v. Smith decision of 1990.6 An unprecedented coalition of civil libertarians, mainline Protestant denominations, and the Christian Right had lobbied Congress intensely to correct what they viewed as interference with the right of free exercise. The Court certainly did not reject