Copyright (c) 1998 First Things 83 (May 1998): 29-33.
The controversy over the injunction issued in October 1997 by Alabama Federal District Judge Ira M. DeMent restricting religious activity in public schools, as well as the continuing controversy in the state concerning Judge Roy Moore’s courtroom display of the Ten Commandments, can be interpreted as typical manifestations of Alabama’s Bible Belt culture, a culture considered by many to be backward, narrow, and bigoted. Resistance by Alabama officials and citizens to Supreme Court precedents regarding religion can appear analogous to earlier official and unofficial resistance to Brown v. Board of Education’s mandate to end the long era of Jim Crow. The analogy is made more plausible because segregationism, and in an earlier era, racial slavery, had been defended in specifically religious terms in Alabama and throughout the South. The image of the "good old boy" pious bigot tends to be superimposed upon more recent events, transposing Alabama Governor Fob James into a contemporary George Wallace, and an outraged pro-prayer Alabama citizenry into a virtual Klan mob.
These stereotypes, however, obscure the significance of the recent events in Alabama. It is true, of course, that evangelical forms of Christianity are more prevalent in Alabama (and the South generally) than in most of America. Southern evangelicalism has always, however, cut in more than one direction with respect to race and other issues. The tradition of finding diametrically opposed political implications in the Bible has deep roots in the South, going back to the days when slaveowners repeatedly invoked the New Testament admonition that slaves should obey their masters, while the slaves expressed their hopes for freedom in songs about Moses, Pharaoh, and the children of Israel. A similar phenomenon appeared during the civil rights era, with many whites finding biblical support for segregation, while blacks and a minority of liberal whites found inspiration in the biblical principle of human equality.
The complex reality of religion in the South is that a single dominant religion—evangelical Protestantism—has simultaneously served three disparate social functions: political and social oppression, political and social liberation, and personal, familial, and social discipline and self-help. This third element—religion as a source of personal, familial, and social discipline and self-help—has in many respects served as a unifying bond in a region that might otherwise be torn apart by racial, class, and ideological divisions. Christianity, moreover, served to temper at least some of the extremes in the dialectic of oppression and liberation, softening social oppression by emphasizing the duties of paternalism and restraining the anarchistic and antinomian tendencies of liberation movements with the leaven of God’s moral law.
Alabama’s social history is made even more complex by its heritage as a Western, frontier state for poor whites migrating in search of their own land and facing all the difficulties of those who seek to make a living off the land. Many of these poor whites and their descendants were opposed to secession, and deeply resented the planter class. For them, as for so many Alabamians, evangelical religion was a great source of comfort and inspiration in perilous and demanding circumstances.
Remarkably, despite the coming of economic prosperity to much of the state in recent years, the influence of a decadent mass culture, and an officially "secular" public school system, Alabamians have retained remarkably high rates of belief in the doctrines of their traditional evangelical religion. Large majorities of Alabamians believe not only in God, but also in the divinity of Christ and the inspiration of the Scriptures.
It is a puzzling phenomenon of Southern life that although adherence to traditional Christian dogmas is higher than the national average, adherence in practice to traditional Christian morality is not. Alabama has rather high rates of illegitimacy, divorce, abortion, and violent crime. These statistical rates, however, generally do not represent adherence to ideals of individual autonomy, nor broad rejection of traditional Christian morality. Although Alabama certainly has its abortion and gay rights activists, their numbers and influence pale in comparison with their counterparts elsewhere. For the most part, Alabama is typical of the Southern tendency to uphold virtue and salvation as ideals even when habitually indulging in sinful conduct. Southerners also tend to bluntly describe immoral conduct as "sin," and to be keenly aware of deviations from Christian standards, particularly in the area of sexual morality. Outsiders are often puzzled by this Saturday night/Sunday morning dichotomy, and are unable to grasp why more Southerners do not clearly reject their evangelical heritage. Within the South, however, the high rates of sin that saturate American society make neither the participants nor the observers of such behavior reject evangelical Christianity, but instead have the opposite effect of creating a deeply felt need for the forgiveness, reconciliation, and personal discipline found in evangelical piety. Southern Christians who succeed in keeping their behavior within the bounds of Christian morality feel the pull of the sin-soaked world around them, and deeply feel their need—and their children’s need—for evangelical religion to help overcome that pull. Many of those who habitually indulge in the various forms of vice and sin do not repudiate their evangelical beliefs, but instead seem to assume, rightly or wrongly, that they will make things right with God before it’s all through. Thus, most Alabamians assume that religion’s assistance is a critical source of guidance and strength.
It is this deeply felt belief that only religion is truly effective in answering the needs of the individual, family, and community for guidance and strength that underlies the deeply hostile reaction to Judge DeMent’s order. Although the U.S. Supreme Court’s campaign to secularize America’s public schools has been active for two generations, most Alabamians still support many forms of conduct deemed unconstitutional by the courts, such as prayer and Bible reading in the classroom, and prayer and religious speech at official school functions. The function of socializing and teaching children is, for most people in Alabama, closely intertwined with religion. It is not enough for children to be taught proper rules of behavior: they must be taught that God is the authority for those rules, the source of the strength to keep them, and the bestower of forgiveness and consolation when we fall short.
Most Alabamians are inclined to think of their neighborhood public schools as the people’s schools, rather than "government schools," as they are disparagingly called by some among the growing minority of parents choosing church schools or home schools. This ownership or identification with the public schools makes it very difficult for parents to understand why the beliefs shared by the vast majority of parents cannot be applied to the critical task of training children in the schools. These feelings are particularly strong in the less populous, less diverse regions of Alabama. ("Less diverse" in this context refers not to race but to the percentage of persons with origins outside the South.) Although these parents would not want to impose their beliefs on those of other faiths, they encounter few, if any, adherents to non-Christian religions in their communities or schools. They do not understand why the village atheists, or the liberal Christian parents who believe in the Supreme Court’s vision of secular schools, should trump the vast majority who want religion in the schools. Surely the minority could be accommodated, they believe, without giving up religion in public school.
The plaintiffs’ complaint that triggered Judge DeMent’s injunction illustrates the underlying cultural conflict in Alabama. The lawsuit originally targeted the schools of Dekalb County and the City of Talladega, two noncontiguous school districts located outside Alabama’s major metropolitan centers. The vast majority of the residents of these districts would be native Alabamians, and Christian in their religious profession. The plaintiffs in the Dekalb County lawsuit are Michael Chandler, an Assistant Principal at a K-12 school, and his son Jesse, a seventh-grade student when the suit was filed. The plaintiffs bringing a complaint against the Talladega City Schools are an anonymous female high school student (Jane Doe) and her mother. Their complaint illustrates the frustrations of families seeking the "secular" educational environment envisioned by Supreme Court precedents in community public schools that as a matter of course employ religion as an agent of socialization. Repeatedly, the Chandlers and Does complained of the children being "exposed," "subjected," or "compelled to listen" to "unwelcome prayer" or "devotional reading." Repeatedly, Assistant Principal Chandler found that his complaints to higher level school officials were in vain. When he complained of classroom prayers, the superintendent informed him that the school board’s policy was "to allow religion in the schools whenever possible" on the assumption that "prayer in school did not hurt anything and might do some good." When Mr. Chandler complained about prayer before football games, he was told that it was "a tradition that would not be stopped." When he objected to devotions prior to 4-H meetings held at the schools, he was pointedly informed that "no one else" had objected to the exercises.
Religion seems virtually inescapable for these plaintiffs. They complain of prayer and Bible reading in the classroom, prayer before football games, invocations and benedictions at graduation, religious speech and prayer at drug awareness assemblies, prayer at parent-teacher meetings, devotions at 4-H meetings held at the public schools, devotions over the loudspeakers, Bible reading at honor society school assemblies, prayer at pep rallies and football banquets, and Gideon Bible distribution in the classroom.
Systematic teaching of religious doctrine was notably absent from the religious activities in these Alabama public schools. Although religion was used to consecrate, guide, and motivate, no special effort was made to present a Christian worldview, or to apply such a worldview to academic subjects. The public schools did not contain anything equivalent to a Baptist Sunday School program. The schools left the task of systematic religious instruction to families and churches. The schools instead employed religious beliefs already held by the public to advance the pedagogical function of socializing and training the next generation.
There is no doubt, of course, that much of the activity described by the plaintiffs was unconstitutional under case law from the Supreme Court. If the plaintiffs’ complaint had merely targeted the conduct covered by those precedents, and Judge DeMent’s order had merely followed those precedents, then the order, however controversial it might have been locally, would have been legally unassailable. The plaintiffs’ complaint, however, broadly stated that school officials had "required or permitted students, parents, and faculty members to engage in a variety of religious activities while attending school events" (emphasis added). The plaintiffs further requested an order prohibiting the schools from, among other things, "permitting . . . or refusing to halt . . . student . . . initiated prayers, invocations, and/or benedictions at compulsory or non-compulsory school-related events and activities and in the classroom." The plaintiffs therefore introduced into the lawsuit the concept that school officials were constitutionally required to prohibit student and parental religious activity, even when such activity was initiated by students.
The Supreme Court, however, has frequently viewed student religious activity in the public school as a form of constitutionally protected speech, and Congress in the Equal Access Act has applied this principle to the protection of high school Bible clubs. Thus, the Court has simultaneously required public school officials, such as teachers and coaches, to be neutral toward religion under the Establishment Clause, while permitting students, as private citizens compelled by law to attend school, to be religiously active. This approach has created a number of questions not yet answered by the Supreme Court. For example, although school-initiated public prayers by clergy or faculty at graduation is considered unconstitutional, the status of public prayers initiated and conducted by students is unclear. Moreover, the degree to which students engaged in traditional valedictorian addresses can lead a prayer, or engage in religious speech, has not been defined by the Court. Similar issues exist in regard to events such as football games, school assemblies, and awards banquets.
Judge DeMent, following the lead of the plaintiffs, decided to try to define the parameters of permissible student religious speech and conduct. The judge’s controversial order enjoined school officials from "permitting . . . officially sanctioned religious activity in the classrooms . . . regardless of whether the activity is initiated, led by, or engaged in by students." Some of the judge’s comments made it apparent that he might consider "permitting" activity in some circumstances to constitute an implied act of official sanction, and thus a violation of his order. Similarly, school officials were enjoined from "permitting prayers, invocations, benedictions, or devotional messages at graduation or commencement exercises," even when given by a student "in the guise of valedictory, salutatory, . . . or similar student addresses or remarks."
The judge attempted to alleviate the harshness of his order by remarking that he was not proscribing "brief personal expression by a student which contains religious references during a commencement exercise or student address," so long as no audience response or participation is solicited. The "brevity" limitation of student religious speech, in a context otherwise banning it, was made more problematic by the judge’s demand that school officials bring immediate disciplinary action against enjoined activity by students in a manner "calculated to cause the cessation of the violative conduct as it occurs and to deter similar conduct in the future" (emphasis added). A school official reading this order could reasonably ask if he must bring a stop watch to graduation and time the "religious" portion of every student speech to ensure its brevity. Indeed, the judge’s order implied that school officials should be prepared to storm the podium and physically silence students whose religious speech defies the judge’s limitations.
Judge DeMent similarly mishandled the issue of other sorts of school-sponsored assemblies and events, enjoining school officials from "permitting" religious speech and activities "regardless of whether the activity takes place during instructional time, regardless of whether attendance is compulsory or non-compulsory, and regardless of whether the speaker/presenter is a student, school official, or nonschool person." This broad language would seem to require school officials to become ever-vigilant censors of every school event, extinguishing every form of religious activity and speech, no matter to what degree it is student-initiated or controlled. A student who publicly bows in prayer upon achieving some athletic success, or a group of students who form a circle and ask for God’s protection and help before commencing some activity, risk the ire of a federal court. School officials who fail to intervene to physically stop such activity, or punish it, risk being held in contempt.
Judge DeMent further illustrated his determination by stating, in his ban on the use of public address systems for religious speech, that "no exception . . . shall be permitted during times of perceived crisis or exigent circumstances." Thus, Judge DeMent deliberately sought to prevent school officials from using any sort of religious reference to calm a student body traumatized by a tragic event.
Defenders of Judge DeMent noted that he specifically permitted a range of student religious activities, including the wearing of religious symbols, religious expression in school assignments, and religious clubs meeting during non-instructional time pursuant to the Equal Access Act. Even when invoking the Equal Access Act, however, Judge DeMent adopted a grudging approach to religious speech, allowing students to "quietly engage in religious activity during noninstructional times, so long as it does not unduly call attention thereto." The requirement that student religious speech during noninstructional times be "quiet" and not "unduly call attention thereto" stigmatizes and disadvantages religious speech as compared to other forms of student speech. Thus, although Judge DeMent attempted to follow, in some broad way, the Supreme Court’s mandate to protect student religious speech, the language of his order consistently sacrifices the First Amendment rights of students to his overriding goal of secularizing the schools. The judge’s demand that school officials not "permit" student religious speech places student religious speech in a consistently suspect light, so that it is essentially forbidden unless specifically permitted.
Judge DeMent’s determination to enforce his order strictly, moreover, must be considered extraordinary. He ordered that a monitor be appointed with the authority to enter "any classroom or public school property" and attend any school-related event, "for the purpose of observing and reporting on compliance" with the injunction. Judge DeMent also required "mandatory in-service training sessions" for all faculty and administrators, with the intent of indoctrinating them in his interpretation of the religion clause. Judge DeMent—much like the present Supreme Court Justices—seemed to take particular affront at those who would question the legitimacy of his authority, and justified the harshness of his order and enforcement regime by virtue of this resistance. He quoted the words of a school principal, Gary Carlisle, who had publicly questioned whether "a federal judge has the authority to tell school officials . . . how to handle the issue of school prayer," while also asking "if a federal judge can do whatever he wants to whenever he wants to." To Judge DeMent, Mr. Carlisle represented the lack of "repentance" of school officials, and the "depth of resistance" toward his authority.
The school prayer dilemma can appear insoluble on a national level. Most metropolitan areas in America—including the South—are too religiously diverse to make the kind of pervasive religious presence found in Dekalb County public schools fair or practicable. On the other hand, subjecting a religiously homogeneous population to a rigorously "secular" public education obviously is not neutral between religion and non-religion, for it favors those viewpoints that believe that the daily moral, academic, and vocational training of children is best accomplished without the assistance of religion. This belief in the severability of religion and education is itself highly controversial. The language of the Northwest Ordinance of 1787, which implicitly described religion and education as an inseparable unit, suggests that the secular theory of education was not widely shared when the First Amendment was enacted.
A voucher system that includes religious schools would seem to be the most effective means of making government truly neutral on the question of religion and education. In practice, however, many Americans are reluctant to give up the unifying effect of a common public school. The public schools are one of the primary social institutions that bring the community together in pursuit of the common good; it is understandable that many ordinary Americans would resist their fragmentation. This resistance, combined with the self-interested hostility of the politically powerful teachers’ unions and the failure of the courts to speak clearly on the constitutionality of voucher systems that include religious schools, suggests that the insoluble dilemma of religion in a single common public school system will persist for the foreseeable future.
The Alabama school prayer case is a reminder that many less populous communities in America continue to defy, to varying degrees, the Supreme Court’s secularization of public education. Traditional religious practices in rural public schools often continue until someone is willing to play the role of the "spoiler" and sue. In the case of the Chandlers in Dekalb County, the spoiler role they have chosen can understandably alienate them from the community. Given that neither the father nor son was ever actually forced to pray or participate actively in religious events, nor were they (prior to filing suit) subject to religious harassment, it may be difficult to be sympathetic to their situation. Should an entire community give up its longstanding and essentially noncoercive use of religion in the public schools merely so that this father and son will not have to be "exposed" or "subjected" to "unwelcome" prayer and Bible reading? Is it truly fair that the village agnostic can employ the authority of the federal government to alter radically the religious and social traditions of an entire community?
Obviously, there is another side to the question. A recent lawsuit filed in Pike County, Alabama, alleges that Jewish children were subjected to coercive religious discrimination and harassment by school officials and students, including being individually instructed to compose a disciplinary essay on "Why Jesus Loves Me," being physically forced to bow during a teacher’s prayer invoking the name of Jesus, being forced to remove a Star of David lapel pin and yarmulke, and being regularly called "Jew boys" by fellow students. Having grown up Jewish, I can readily understand why Jewish organizations might want to see the Supreme Court’s school prayer precedents strictly observed in every school district, regardless of their current religious demographics. Such broad enforcement would guarantee that wherever a Jewish family might move, they would find a secular public school available to their children, without having to play the controversial role of spoiler.
Most Christian conservatives in Alabama—a state with a well-established and broadly respected Jewish community—would readily repudiate the religious discrimination and harassment alleged in the Pike County law suit. Indeed, most Alabamians, reared in a stated dominated by the Baptist emphasis on "voluntary" religion, would perceive the coercion allegedly employed in Pike County schools as a violation of Christian teaching. However, the desire of religious minorities, whether Jewish, Buddhist, or Muslim, for a "secular" public school system creates some subtle and difficult ethical dilemmas when the egregious harassment and discrimination alleged in Pike County is absent. Do a few Jewish, Muslim, or Buddhist families really have the moral right to demand that an entire community abandon its longstanding use of religion in the public schools, even when such use is noncoercive and accompanied by respect for religious minorities? Does the mere possibility that a Jew or Muslim might someday move into the school district mandate the secularization of the entire system? How do we reconcile the desire of Christian parents for an education compatible with Christianity and the desire of religious minorities for a secular public educational system that treats religion as peripheral or irrelevant to daily life? Do we really believe that the "answers" to these dilemmas are found in the text of the First Amendment?
Such questions are unlikely to be asked, let alone answered, as Judge DeMent’s controversial order is tested in the appellate process. Alabama’s Attorney General and Jay Sekulow’s American Center for Law and Justice apparently are prepared to challenge only those aspects of Judge DeMent’s order that infringe on the First Amendment rights of public school students. Prudent religious conservatives recognize that Judge DeMent’s limitations on student religious activity are legally vulnerable, but they also realize that challenges to the longstanding Supreme Court precedents banning school prayer by public school personnel will not be taken seriously by the courts. Governor Fob James will continue to use this case, as he has the Judge Roy Moore Ten Commandments case, to publicize his longstanding position that the Establishment Clause does not apply to state and local government. Although applying the Establishment Clause to state government does appear to turn the original federalist intent of the provision on its head, the courts will not take the Governor’s arguments seriously. Inside Alabama, the ACLU and its sympathizers will continue to prosecute controversial and divisive lawsuits seeking to strip the public square and public schools of any religious references and activities, and then complain that the Governor is using these lawsuits to "distract" Alabamians from his alleged failure to solve "real" problems in the realms of education and welfare. It should become apparent to most, in time, that the Alabama ACLU and the Governor are in a kind of symbiotic relationship that provides both of them opportunities to dramatize their deeply held convictions.
There are no simple solutions to the sorts of dilemmas that have arisen in Alabama. But this much can be said. Here, as in so many other cases, we were in a far better position to resolve our differences through reasonable accommodation before the judiciary undertook to establish itself as the unchallengeable arbiter of our common life.
David M. Smolin is Professor of Law at Cumberland Law School of Samford University in Birmingham, Alabama, and Fellow of the Southern Center for Law and Ethics.