This opinion was produced by students in the U.S. Supreme Court Scholars Seminar at Auburn University Montgomery. Students reviewed the briefs of the parties in the actual case, and oral arguments were heard on May 19, 1997 with students acting in the roles of counsel and the Justices.
This class is a Scholars Seminar at Auburn University Montgomery. The Scholars program is AUM's honors program. Students in this seminar represent a wide range of majors, although many of the students are Justice & Public Safety majors. The seminar examines the Court through its most recent decisions. Students read, analyze and discuss twenty-five cases from the Court's recent Term, and then select a case to conduct mock arguments. Earlier in the quarter the students traveled to Washington, D.C. to observe oral arguments at the U.S. Supreme Court.
This opinion is not intended to predict how the actual litigation will turn out, but does discuss many of the pertinent issues in the case. Additional information about the case may be found at the following sites:
MOCK SUPREME COURT OF THE UNITED STATES
No. 970001
STATE OF ALABAMA ex rel. FOB JAMES, GOVERNOR, AND BILL PRYOR, ATTORNEY GENERAL, PETITIONERS v. AMERICAN CIVIL LIBERTIES UNION OF ALABAMA et al.
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA
[May 28, 1997]
[Argued May 19, 1997]
Justice Stevens delivered the Opinion of the Court.
Mock Justice Stevens delivered the Opinion of the Court, joined by mock Justices O'Connor, Souter and
Ginsburg, with an opinion by Mock Justice Breyer concurring in the result.
I.
The constitutionality of two issues are called into question in the case at hand -- the public display of a
plaque bearing the Ten Commandments in an Alabama Courtroom and clergy-led prayer during the jury
venire in that same court.
The original intent of the framers of the United States Constitution should not be discounted. However, the
society for which it was written and the society of today differ greatly. For this reason we must make every
effort not to rely too heavily on the "advice of the Founding Fathers" because historical messages often tend
to be "ambiguous" and not relevant to a society far more heterogeneous than that of the framers. Abington
School District v. Schempp, 374 U.S. 203, 237, 83 S.Ct. 1560, 1579, 10 L.Ed. 844 (1963).
Before the First Amendment was written, the Framers of the Constitution broke with the practice of the
Articles of Confederation and many state constitutions and did not invoke the name of God in the
document. This omission of a reference to the deity was not inadvertent; nor did it remain unnoticed.
To be truly faithful to the framers "our use of the history of their time must limit itself to broad purposes,
not specific practices." Our primary task must be to translate "the majestic generalities of the Bill of
Rights conceived as part of the pattern of liberal government in the eighteenth century into concrete
restraints on officials dealing with the problems of the twentieth century. "Our religious composition
makes us a vastly more diverse people than were our forefathers...in the face of such profound changes,
practices which may have been objectionable to no one in the time of Jefferson and Madison may today be
highly offensive to many persons, the deeply devout and the nonbelievers alike." Schempp, 374.U.S. at
240-241, 83 S.Ct. at 1581.
II.
There can be no question that the Ten Commandments have played, and continue to play, a crucial role in
the development of our law and are very much an integral part in the lives of many, if not the majority, of
our citizenry. For this reason, we must not infer that they are "in peril" and by no means are they headed
for extinction. It is necessary, however, to examine the issues at hand to determine if their display in this
context is in violation of the Establishment Clause of the U.S. Constitution.
We offer no objection to the placement of the Ten Commandments in any "church, synagogue, temple,
mosque, home, and storefront" and certainly they may be "displayed on lawns and in corporate board
rooms." Harvey v. Cobb County, Georgia, 811 F.Supp. 669 (N.D. Ga. 1993). However, they "cannot,
and should not, be displayed as a religious text on government property." Id. at 669. This is not to say
that they cannot appear in a public courtroom without violating the Establishment Clause, for, as petitioner
claims, they appear in our very courtroom. However, petitioner errs in his claim that the depiction of the
Ten Commandments in his courtroom is similar to that displayed in the U.S. Supreme Court. Quite the
contrary is true. The displays are dissimilar in that in our courtroom, the Ten Commandments are clearly
displayed in a nonreligious manner in close proximity with other historical figures which have had
significant influence upon our legal system; whereas, petitioner's display is located immediately behind the
bench which is the most prestigious location within the courtroom. While the seal of the State of Alabama
is located nearby, it is clearly not a part of the Ten Commandments display and, in fact, even though other
historical documents appear around the room, there are none within close proximity to the Ten
Commandments Display. Respondents are correct to conclude that petitioner's refusal to move his display
into a more historical setting is a clear demonstration that his interest in displaying the plaque is purely
religious. In its current setting, Petitioner's display lends little to historical benefit and, with regard to this
issue, the decision of the lower court is affirmed.
III.
Respondents accurately claim that judicial prayer is unconstitutional under Lemon. In fact, there is
nothing that remotely hints of religion that could pass the extreme scrutinization of the Lemon Test. Its
three tenets are so far-reaching that if any issue should escape one of its deadly prongs, it surely would be
ensnared by one of the other. Lemon has been for some time the means by which this court, or any other
court for that matter, could proscribe any religious activity it chose.
There must be a balance between the governmental protection of the Establishment Clause and the
governmental interference of the Free Exercise Clause. The solution to the conflict between the religion
clauses lies not in neutrality but rather in identifying workable limits to the government's license to promote
the free exercise of religion. The text of the Free Exercise Clause speaks of laws that prohibit the free
exercise of religion. The Clause is directed at government interference with free exercise. Given that
concern, one can plausibly assert that government pursues Free Exercise Clause values when it lifts a
government-imposed burden on the free exercise of religion. If a statute falls within this category then the
standard Establishment Clause test should be modified accordingly. Wallace v. Jaffree, 472 U.S. at 83,
105 S.Ct. at 2503-2504. For this reason, it is time to lay aside Lemon and look for a test that achieves a
more equitable balance between the religion clauses. To achieve such a balance it is necessary to bring
into consideration three valid questions:
1. What is the purpose of the action in question?
2. What is the effect of the action in question upon the participants?
3. It is an endorsement or a restriction of any religious belief?
With regard to the first issue, clearly petitioner purposes to promote his own religious preference beyond all
others. Secondly, petitioner's actions have caused offense to numerous persons. There have been in excess
of fifty complaints filed and an unknown number which were never filed. Lastly, that petitioner's actions
are an endorsement of his religion, is beyond doubt.
Even though the scrutinization of the Lemon test is extreme, this does not mean that the voluntary clergy
prayers in petitioner's courtroom are not in clear violation of the Establishment Clause. It has long been
the belief of this court that the government may not "promote one religion or religious theory against
another." Id. at 59-60. For this reason, it is imperative that the government refrain from becoming
involved in any activity which lends support to a "particular religious belief or practice and, clearly, by
praying before the jury venire, petitioner is asserting a governmental "pressure to participate in a religious
activity" which is an "obvious indication that the government is endorsing or promoting religion." Lee v.
Weisman, 505 U.S. at 607, 112 S.Ct. at 2649, 2665. It has long been the belief of this court that the
government may not "promote one religion or religious theory against another." Wallace v. Jaffree, at 59-60. The statement by petitioner's counsel that "a non-Christian prayer would not be allowed" which is an
obvious promotion of one religious belief over another. Respondents accurately claim that as petitioner
takes the bench in an Alabama public courtroom, maintained by public funds, he is not the master of that
courtroom. Given this, he must lay aside his personal preferences for a particular religion and must take
upon himself the role of a governmental official to uphold the Establishment Clause and refrain from
"appearing to take a position on questions of religious belief or from making adherence to a religion
relevant in any way to a person's standing in the political community." Lynch v. Donnelly, 465 U.S. at
687, 104 S.Ct. at 1366.
Petitioner's claim that all persons present at the time the prayers are offered are free to leave the room is of
little consequence since it is likely that many persons will elect to remain in the room and endure actions
they regard as offensive rather than face the embarrassment of exiting the room in full view of their peers.
Observing a moment of silence rather than offering prayer is a far better choice. Neither petitioner nor
respondents disagree that an occasion can be solemnized by the use of a moment of silence. Such would
serve a dual purpose in that it would provide opportunity for those who choose to pray to do so as well as
allow a time of reflection and meditation for those who choose not to pray.
Clearly this is not a decision that will affect only a small Alabama town, but one that will have an impact
upon our entire nation. Since the time the U.S. Constitution was penned, our country has grown and
continues to grow on a daily basis. Our society is diverse and becoming more so with every day that
passes. We cannot hold to the same views as those of the framers, we must adapt to society as it exists
today. Petitioner has not been called upon to abandon his beliefs, but to modify them so that no individual
who is an official or a guest of the court will be offended by actions that transpire within the courtroom.
The Establishment clause prohibits the government from appearing to take a "position on questions of
religious belief" or from making "adherence to a religion relevant to a person's standing in the political
community." Id. at 687. There must be no political battles and at no point should any American feel
alienated from his government because that "government has declared or acted upon some "official or
authorized point of view on a matter of religion." Marsh v. Chambers, 406 U.S. at 806, 103 S.Ct. at
3330.
The decision of the Supreme Court of Alabama is affirmed.
Mock Justice Breyer, concurring in the judgment.
The issues posed by the case at hand are not clear-cut and a careful examination must be made to ensure
their fate is decided on an equitable basis. In so deciding, we cannot and must not discount the intention of
the framers of the Constitution and certainly we must take into account that today's population is far more
diverse than at the time the Constitution was drafted. However, we must guard against diminishing the
rights of the majority in our attempt to protect the rights of the minority.
The clergy-led voluntary prayer and the posting of the Ten Commandments upon a public courtroom wall
are indeed acknowledgments of God; however, they are not the "mere" acknowledgments that petitioner
contends them to be. Such a contention makes a futile attempt to simplify two very complex issues.
There is little room for disagreement that the prayer in question is voluntary and persons who do not wish
to participate are afforded the opportunity to leave the room during this time. However, individuals who
elect not to participate are required to exit in full view of their peers. Such an act has the effect of placing
an "indirect, coercive pressure upon religious minorities to conform to the prevailing officially approved
religion." Engel v. Vitale, 370 U.S. 431, 82 S.Ct. at 1261, 1267.
The Ten Commandments are indeed historically significant in the forming of our legal system and, as such,
they certainly have a place in the courtroom. The operative phrase in the preceding sentence is "as such."
Petitioner's display is clearly located in a place of prominence within the courtroom with no other historical
documents in propinquity. In this context, the display serves more as a promotion of religion than a
recognition of historical contribution.
Justice STEVENS is correct in holding that Lemon is extreme and should be replaced by a test which more
equitably reflects a balance between the religious clauses. The test he proposes; however, is but a "twist of
Lemon" and should not be the basis by which this balance is maintained. A more equitable balance would
be obtained by considering the coercive nature of the action in question. The First Amendment forbids not
only laws "respecting the establishment of religion," but also those "prohibiting the free exercise thereof"
and, as such, the government can neither coerce nor prohibit the support of or participation in a religion or
its exercise. County of Allegheny v. American Civil Liberties Union, 492 U.S. at 659-660, 109 S.Ct. at
3136. If an ordinary person would reasonably feel coerced or compelled to participate in a religious
exercise in a given situation, then such activity ceases to be voluntary and is unconstitutional.
The Chief Justice with whom Justice Scalia, Justice Thomas, and Justice Kennedy join, dissenting.
I
A
The plurality opinion in this case simply adds more dirt to the already muddy waters of our First
Amendment jurisprudence. Each time the Court stretches either the Establishment Clause to forbid more
than was deemed necessary, or the Free Exercise Clause to permit more than it was intended to, the tension
and ambiguity thus created between the two proceeds more and more to defy logical reason and
explanation. This court has repeatedly tried to make use of the test formulated in Lemon v. Kurtzman, 403
U.S. 602 (1971), as well as suggesting other tests (1) in order to clear up the ambiguities of our first
Amendment decision making. Each of these efforts has been flawed for two major reasons. First, no rigid
"test" can be binding on all cases in our First Amendment inquiries that is based on improper historical
revisionism, and that is not based properly on the original intent of the authors of the amendment.
Secondly, no "test" can be absolute or binding if that test would hold unconstitutional those practices
contemporaneous to the adoption of the First Amendment when those practices continued after its
ratification, and where there is substantial evidence that said practices were not considered to be violative
by those who created the First Amendment. Thus in Marsh v. Chambers, 463 U.S. 783 (1983), we held
that the practice of legislative prayer was constitutional independent of any analysis using the Lemon test,
which may well have found that practice unconstitutional.
To state that our interpretation of the constitution should be different today than it was two hundred years
ago because "our religious composition makes us a vastly more diverse people than our
forefathers",Abington School District v. Schempp, 374 U.S. 203, 241 (1963), is illogical. (2) This
argument was anticipated and refuted by James Madison when he stated, "I entirely concur in the propriety
of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense
alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no
security for a consistent and stable, more than for a faithful, exercise of its powers...what a metamorphosis
would be produced in the code of the law if all its ancient phraseology were to be taken in this modern
sense." (3) The makeup of our citizenry has undergone a myriad of changes, and it will likely continue to
do so. But the words of our Constitution remain the same. (4) The First Amendment must continue to be
interpreted in the context in which it was created, and as much as possible using the original intent of the
amendment's authors to discern its meaning and its application to the facts presented before the Court.
Thus, as Thomas Jefferson wrote, "On every question of construction, carry ourselves back to the time
when the constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what
meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it
was passed." (5)
Treating the Constitution as a "living document", that is, re-interpreting the words of the Constitution
according to the whim of the individuals who serve on the Court, is an unjust usurpation of the powers of
the legislative branch, and more importantly, of the people. This corrupts and politicizes the judicial
process, making judicial appointment and confirmation more an inquiry into the candidates political
philosophy than his constitutional one. Judicial legislating leads directly or indirectly to legislative
gridlock. Legislators no longer need to pass laws dealing with controversial issues. They must only wait
for the court to find some rational, and often irrational way to re-interpret the Constitution to support
whatever position that court deems necessary to legislate. Perhaps anticipating this Alexander Hamilton
wrote, "In my opinion the present Constitution is the standard to which we are to cling... rejecting all
changes but through the channel itself provided for amendments." (6)
B
Unfortunately, our decisions concerning the Establishment Clause over the past fifty years have
erroneously relied upon one statement by Thomas Jefferson to the exclusion of nearly all other information
concerning the original intent of the First Amendment. This statement is found in a brief letter of response
to the Danbury Baptist Association. Jefferson writes, "I contemplate with sovereign reverence that act of
the whole American people which declared that their legislature should make no law respecting an
establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between
church and state." (7) There are three reasons why this statement should not be relied upon as being the
primary, or even as a particularly useful explanation of the intent of the First Amendment. First, Thomas
Jefferson's participation in the shaping of the first Amendment and the debate before its inception was
indirect at best. Jefferson was in France during that time, and in a time where trans-Atlantic
correspondence often took weeks or even months, it is difficult to imagine Jefferson participating in, let
alone orchestrating the debate. (8) Secondly, a letter of response to a religious organization some twelve
years after the Congressional debate over the Bill of Rights can hardly be taken as the most important or
even most reliable source for determining the intent of the First Amendment. Finally, if Jefferson's view of
the religious clause was incongruent with the majority who passed it [as may well be the case (9)], then it
would be incorrect for this Court to rely solely or even primarily on Jefferson's public words to dictate
resolution of First Amendment questions, without referencing them with the words of others who may have
had an even greater impact on the shaping of the First Amendment.
Thus, the use of Thomas Jefferson's metaphoric wall of separation of church and state should not be
continued. This was remarked upon by former Chief Justice Burger when he wrote, "The Court has
sometimes described the Religion Clauses as erecting a wall between church and state. The concept of a
wall of separation is a useful figure of speech probably deriving from the views of Thomas Jefferson. The
metaphor has served as a reminder that the Establishment Clause forbids an established church or anything
approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the
relationship that in fact exists between church and state." Lynch v. Donnelly, 465 U.S. 668, 674 (1984).
Also In the Lynch case, Chief Justice Burger continues by writing, "Nor does the Constitution require
complete separation of church and state; it affirmatively mandates accommodation, not merely tolerance, of
all religions, and forbids hostility toward any. Anything less would require a callous indifference we have
said was never intended by the Establishment Clause. Indeed, we have observed, such hostility would bring
us into war with our national tradition as embodied in the First Amendment's guaranty of the free exercise
of religion." Lynch at 674. Indeed, it would be incorrect for this Court to continue to use a metaphor
casually added in a brief personal letter of response by Thomas Jefferson as the basis for interpretation of
the religion clauses of the First Amendment.
C
There is much evidence contemporaneous to the drafting of the First Amendment which sheds light directly
on the intent of the authors. On Saturday, August 15, 1789, the Select Committee responsible for the
introduction of amendments introduced the wording of what would eventually become the religion clauses
of the First Amendment as "No religion shall be established by law, nor shall the equal rights of conscience
be infringed." 1 Annals of Cong. 729 (Joseph Gales ed., 1789). Mister Sylvester then expressed that it
might be construed differently than the committee's intention and thus "might be thought to have a tendency
to abolish religion altogether", Id. at 729. Mister Vining then "suggested the propriety of transposing the
two members of the sentence", Id. at 729. This was perhaps intended as a suggestion that the Free
Exercise Clause was considered more important than the Establishment Clause. Mister Gerry said it would
read better if it was that "no religious doctrine shall be established by law", Id. at 730. Madison then
expressed his opinion during the debate, perhaps to allay the fears of the other members, by saying that the
provision meant, "Congress should not establish a religion, enforce the legal observation of it by law, nor
compel men to worship God in any manner contrary to their conscience." Id. at 730. Benjamin Huntington
then responded by expressing his fear "that the words might be taken in such latitude as to be extremely
hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the
gentleman from Virginia (Madison), but others might find it convenient to put another construction upon it.
The ministers of their congregations to the Eastward were maintained by the contributions of those who
belonged to their society; the expense of building meeting houses was contributed in the same manner.
These things were regulated by by-laws. If an action was brought before a Federal Court on any one of
these cases, the person who had neglected to perform his engagements could not be compelled to do it; for a
support of ministers or building places of worship might be construed into a religious establishment." Id.at
730. Huntington went on to say that it was good that Rhode Island's charter forbid establishment of
religion by law, and "He hoped therefore, the amendment would be made in such a way as to secure the
rights of conscience, and the free exercise of the rights of religion, but no to patronize those who professed
no religion at all." Id. at 731.
This debate proves to be very enlightening for several reasons. It shows that Huntington believed that the
law in Rhode Island that no religion could be established by law did not require the state to be neutral
between people who were religious and those who were not, e.g. "but not to patronize those who professed
no religion at all", Id. at 731. That this was the prevailing thought is evidenced by two things. First,
though the debate continues, there is no evidence that any one disputes Huntinton's elaboration of the
intended meaning of the phrase no religion shall be established by law. And secondly, Huntinton
specifically refers to the fact that he and Madison agree as to what the intended meaning of the amendment
is. Thereafter, Madison does not refute that but may actually show that he concurs by his response. In
Madison's response he states that he "believed that the people feared one sect might obtain a pre-eminence,
or two combine together, and establish a religion to which they might compel others to conform", Id. at
731. The remarks of Madison combined with those of Huntinton clearly show that at the very least the
Establishment Clause was not meant to require government neutrality between religion and non-religion,
but merely forbid establishment of one sect or denomination above all others.
During the next week the House agreed upon the language of the amendment as "Congress shall make no
law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."
Id.at 766. Concurrently, the Senate, which had secret debate and thus left no record of the debate, decided
upon the language as "Congress shall make no law establishing articles of faith or a mode of worship, or
prohibiting the free exercise of religion." (10) Although the Senate debate concerning the religion clauses
was secret, we do have some insight into the thoughts of the head of the Senate delegation to the conference
committee, Oliver Ellsworth, who went on to become the Chief Justice of the Supreme Court after John
Jay. In an editorial letter written in 1788, Ellsworth wrote, "But while I assert the rights of religious
liberty, I would not deny that the civil power has a right, in some cases, to interfere in matters of religion.
It has a right to prohibit and punish gross immoralities and impieties, because the open practice of these is
of evil example and detriment. For this reason, I heartily approve of our laws against drunkenness, profane
swearing, blasphemy, and professed atheism." (11) (Emphasis added)
The House and Senate formed a conference committee, led by Madison and Ellsworth, which decided on
the wording that became the religion clauses of the First Amendment, "Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof." It seems unlikely that the
Senate delegation to the conference committee headed by Ellsworth, would have tried to convince the House
delegation, headed by Madison, to be more restrictive towards religion. But this is what must have been
the case if we are to believe that the conference committee changed its intent from either of the two less
restrictive positions held by the House and Senate coming in, to anything that would resemble the
interpretation using Jefferson's metaphoric wall of separation of church and state that this Court has used
over the past fifty years.
There is also considerable external evidence that is contemporaneous to the First Amendment
Congressional debates which may illuminate the author's original intent. The Ordinance of 1787 for the
government of the Northwest Territory stated in Article III inter alia that "Religion, morality, and
knowledge, being necessary to good government and the happiness of mankind, schools and the means of
education shall be forever encouraged." (12) This ordinance also required by law that a certain portion of
each township be set aside specifically for the support of religion. the original ordinance, passed in 1787,
is contemporaneous enough. The fact that it was continued by act of Congress in 1789, when the congress
passed the First Amendment, is even more so. In addition, that same Congress passed The Presidential
Thanksgiving Day Proclamation of 1789, resolving "That a Joint Committee of both Houses be directed to
wait upon the President of the United States, to request that he would recommend to the people of the
United States a day of public Thanksgiving and prayer, to be observed by acknowledging, with grateful
hearts, the many signal favors of Almighty God, especially by affording them an opportunity peaceably to
establish a Constitution of government for their safety and happiness." 1 Annals at 915.
Another example of the government's attitude toward religion is contained in Major Pierre Charles
L'Enfants plan in 1791, authorized by George Washington, for a "Church for National purposes in the
National Capital". In the plan L'Enfant writes "This church is intended for national purposes, such as
public prayer, thanksgivings, funeral orations, etc., and assigned to the special use of no particular sect or
denomination, but equally open to all." (13) Surely a government that would even consider such a plan did
not construe the First Amendment as building a wall of separation of church and state as this Court has
often interpreted that phrase in the last fifty years.
D
All of these practices were commented on in two early works on Constitutional theory. One of the earliest
and perhaps most comprehensive of these is Story's Commentaries on the Constitution of the United
States. In his writings Joseph Story, a Supreme Court Justice from 1811 to 1845, wrote that "Probably at
the time of the adoption of the Constitution, and of the amendment to it now under consideration, the
general if not the universal sentiment in America was, that Christianity ought to receive encouragement
from the state so far as was not incompatible with the private rights of conscience and the freedom of
religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in
utter indifference, would have created universal disapprobation, if not universal indignation." (14) Story
also wrote that "The real object of the First Amendment was not to countenance much less to advance,
Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among
Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy
the exclusive patronage of the national government." (15) supra at 632. In another early commentary
entitled Constitutional Limitations, Thomas Cooley wrote "But while thus careful to establish, protect, and
defend religious freedom and equality, the American constitutions contain no provisions which prohibit the
authorities from such solemn recognition of a superintending Providence in public transactions and
exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and
dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of
recognizing in important human affairs the superintending care and control of the Great Governor of the
Universe, and of acknowledging with Thanksgiving his boundless favors, or bowing in contrition when
visited with the penalties of his broken laws. No principle of constitutional law is violated when
Thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when
legislative sessions are opened with prayer or the reading of the scriptures; or when religious teaching is
encouraged by a general exemption of the houses of religious worship from taxation for the support of state
government. Undoubtedly the spirit of the Constitution will require, in all of these cases, that care be taken
to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do
any of these things does not become unconstitutional simply because of its susceptibility to abuse." (16)
That this interpretation of the First Amendment continued is evidenced by the report, issued by the
Committee on the Judiciary of the Senate, which in 1853 stated that the Establishment Clause referred "to
that establishment which existed in the mother country, and its meaning is to be ascertained by ascertaining
what that establishment was. It was the connection with the state of a particular religious society, by its
endowment, at the public expense, in exclusion of, or in preference to, any other, by giving to its members
exclusive political rights, and by compelling the attendance of those who rejected its communion upon its
worship, or religious observances. These three particulars constituted that union of church and state which
our ancestors were so justly jealous, and against which they so wisely and carefully provided. They
intended, by this amendment, to prohibit an establishment of religion such as the English church presented,
or anything like it. But they had no fear of jealousy of religion itself, nor did they wish to see us as an
irreligious people; they did not intend to prohibit a just expression of religious devotion by the legislators of
the nation, even in their public character as legislators; they did not intend to send our armies and navies
forth to do battle for their country without any national recognition of that God on whom success or failure
depends; they did not intend to spread over all the public authorities and the whole public action of the
nation the dead and revolting spectacle of atheistical apathy." (emphasis added) (17) Shortly thereafter
the House of Representative stated a similar belief that an establishment of religion "must have a creed,
defining what a man must believe; it must have rites and ordinances, which believers must observe; it must
have ministers of defined qualifications, to teach the doctrines and administer the rites; it must have tests
for the submissive, and penalties for the non-conformist. There never was an established church without all
these." (18)
II
A
As to the specific case presented before us today, there are two main issues. One concerns the
constitutionality of prayer arranged by a judge in a courtroom, and the other concerns the display of a
plaque of the ten commandments in a courtroom. To analyze each of these issues we must decide whether
the Establishment Clause "Congress shall make no law respecting an establishment of religion" has been
violated. The First Amendment forbids government establishment of religion, and perhaps discrimination
between different sects or denominations, but does not require government to be neutral between religion
and non-religion. Thus we should follow former Chief Justice Burger's admonition when he wrote "Rather
than mechanically invalidating all government conduct or statutes that confer benefits or give special
recognition to religion in general or to one faith - as an absolutist approach would dictate- the Court has
scrutinized challenged legislation or official conduct to determine whether, in reality, it establishes a
religion or tends to do so." Lynch at 678.
B
There are two different formulas that may properly be used to decide the constitutionality of prayer
conducted or arranged by a judge in a courtroom, or the display of the ten commandments in a public
courtroom. Either the Court may use the closest and most comparable precedent as a guideline, or , in the
absence of proper applicable precedent , the Court must deduce the original intent of the First Amendment
concerning the practice of courtroom prayer and the display of the ten commandments by examining
procedures contemporaneous to the adoption of the First Amendment. The practice of prayer in the
Alabama courtroom and the display of the ten commandments at issue here would both be upheld using
either formula.
C
Clearly, the closest and most comparable proper precedent in this case is Marsh v. Chambers 463 U.S. 783
(1983). In the majority opinion Chief Justice Burger wrote, "The opening of sessions of legislative and
other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country.
From colonial times through the founding of the Republic and ever since, the practice of legislative prayer
has coexisted with the principles of disestablishment and religious freedom." Marsh at 787. That this
recognized judicial prayer as well as legislative prayer is mentioned indirectly in its reference to other
deliberative public bodies. However, the Court immediately expounded upon this by stating, "In the very
courtrooms in which the United States District Judge and later three Circuit Judges heard and decided this
case, the proceedings opened with an announcement that concluded 'God save the United States and this
Honorable Court' ." Marsh supra. This invocation or prayer occurs at the commencement of each United
States Supreme Court session as well.
In this case, the respondent improperly argues that Marsh is not proper precedent but instead purports that
either Lemon v. Kurtzman or North Carolina Civil Liberties Union v. Constangy 947 F.2d 1145 (11th Cir.
1991) cert. denied, ___ U.S. ___ (1992) is the proper precedent. This Court is not bound by lower court
precedent, and thus, other than to point out the substantial differences between Constangy and this case, the
Constangy case will be disregarded. (19) As to the applicability of the Lemon test, it has been stated
before that any case not grounded in proper constitutional history should not be considered binding
precedent. Thus, as this Court has done numerous times before, (20) Lemon should be disregarded as
inaccurate and totally irreconcilable with the original intent of the religion clauses.
Concerning Marsh, respondents argue that in this case, unlike Marsh, there is no "unambiguous and
unbroken history of more than two hundred years," of judicial prayer. Marsh at 793. To claim that
legislative prayer was upheld in Marsh because of its continuous practice for more than two hundred years
is wholly inaccurate. The Marsh opinion specifically refutes that claim by stating inter alia that "Standing
alone, historical patterns can not justify contemporary violations of constitutional guarantees, but there is
far more here than simply historical patterns." Marsh at 791. Thus, Chief Justice Burger specifically states
that legislative prayer was not upheld merely because of its history, but because "In this context, historical
evidence sheds light not only on what the draftsman intended the Establishment Clause to mean, but also on
how they thought that clause applied to the practice authorized by the First Congress - their actions reveal
their intent." Marsh supra.
Therefore the Marsh decision concerning the longstanding historic practice of prayer in legislatures should not be construed to claim that constitutional violations are to be abided if they have been repeated many times over a long period of time, but rather, that a practice contemporaneous to the adoption of the First Amendment that continued afterwards could not be considered as unconstitutional. Thus an act "passed by the First Congress assembled under the Constitution, many of whose members had taken part in framing that instrument... is contemporaneous and weighty evidence of its true meaning." Wisconsin v. Pelican Insurance Co., 127 U.S. 265, 297 (1988). Thus in Marsh we found that the "delegates did not consider opening prayers as a proselytizing activity or as symbolically placing the government's official seal of approval on one religious view." Marsh at 793. Instead the authors of the First Amendment viewed invocations as "conduct whose... effect... harmonizes with religious canons." McGowan v. Maryland 366 U.S. 420, 442 (1961). And this Court has found that "The Establishment Clause does not always bar a state from regulating conduct simply because it harmonizes with religious canons." Id at 462.
In Lynch, we found that "there is an unbroken history of official acknowledgment by all three branches of
government of the role of religion in American life from at least 1789, seldom in our opinions was this
more affirmatively expressed than in Justice Douglas' opinion for the court in Zorach v. Clauson 343 U.S.
306 (1952)." Lynch at 674. In Zorach, Justice Douglas wrote, "We are a religious people whose
institutions presuppose a Supreme Being... when the State encourages religious instruction or cooperates
with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of
our traditions." Zorach at 313.
In Lynch, the Court stated that "contemporaneous understanding of the Establishment Clause is found in
the first weeks of the Congress in 1789. In the very week that Congress approved the Establishment
Clause as part of the Bill of Rights it enacted legislation providing for paid chaplains for the House and
Senate. Thus we found no conflict with the Establishment Clause when Nebraska employed members of
the clergy as official legislative chaplains to give opening prayers at sessions of the state legislature."
Lynch at 674.
In Marsh, the Nebraska legislature employed the same Presbyterian minister over a period of sixteen years,
who was compensated using state procured funds, to provide its prayers and invocations. In the case
before us today, petitioner merely allows local clergy of varying denominations to give prayer at the
beginning of jury sessions on a voluntary basis, and for which prayer they are not compensated. Surely
petitioner's practice is significantly less likely to be tainted by the specter or suspicion of fostering an
attempt to establish religion than that practice already found to be constitutional in Marsh. As the fact that
those giving prayers in the Etowah County courtroom were all Christians, this Court held in Marsh that,
"We can not, any more than the members of the Congresses of this century, perceive any suggestion that
choosing a clergyman of one denomination advances the beliefs of a particular church." Marsh at 794.
Thus the selection of clergyman from various denominations must be considered a practice even less
capable of advancing the beliefs of a particular church.
III
Although the issue of prayer in the courtroom is clearly controlled by Marsh, it is helpful to discuss
specifically, in brief, the tradition and practice of courtroom prayer. In courtrooms all across America,
court sessions open with an invocation or prayer which often concludes with "God save this Honorable
Court."
Justice O'CONNOR argues that these are merely examples of "ceremonial deism" County of Allegheny v.
ACLU 492 U.S. 573, 630 (1989) and would not by themselves establish a pattern that would substantiate
the practice of prayer in Alabama courtrooms. This argument borders on the absurd and surely smacks of
nonsense. There is a litany of judges, and I suspect courtroom visitors as well as members of the public at
large that most assuredly considered and still consider this invocation to be a prayer that retains religious
meaning. This argument of "ceremonial deism" is a futile effort to explain away a practice
contemporaneous with the framing of the First Amendment, that continues as an extremely pervasive part
of our courtroom practice today. Acknowledgment of this Court's invocation as prayer, as is proper,
would drive a fatal stake not only through the Lemon test but through Justice O'CONNOR's proposed
endorsement test as well. These tests would require us to inquire not only of each court crier or marshall
who gave the invocation as to their motive and belief at the time they spoke the invocation, that is whether
they intended the invocation as a prayer or endorsement of religion or merely as "ceremonial deism," but
also inquire similarly of each person who hears the invocation. Because, I would argue, many if not most
people have a religious purpose when they invoke God's name, the Court's invocation would be improperly
held unconstitutional under either the Lemon test or O'CONNOR's endorsement test. Thus, for the
purposes of our invocation, these tests would have to be either ignored or abandoned completely.
To ascertain that our invocation or prayer has held and still holds religious meaning, we must look no
further than the writings of this Court. In Engel v. Vitale 470 U.S. 421 (1962), Justice Douglas wrote
"Our crier has from the beginning announced the convening of the Court and then added 'God save this
Honorable Court.' That utterance is a supplication a prayer in which we, the judges are free to
join."(Emphasis added) Also in Engel, Justice Stewart wrote "What is relevant to the issue here is ...the
history of the religious traditions of our people, reflected in countless practices of the institutions and
officials of our government. At the opening of each day's session of this Court, we stand, while one of our
officials invokes the protection of God. Since the days of John Marshall, our crier has said, 'God save the
United States and this Honorable Court.' Both the Senate and the House of Representatives open their
daily sessions with prayer." Likewise in Schempp, Justice Clark, a staunch adherent to the improper wall
metaphor, wrote, "Since the beginning of that history many people have devoutly believed that more things
are wrought by prayer than this world dreams of. This background is evidenced today in our public life
through the continuance in our oaths of office from the President to the Alderman of the Final Supplication,
so help me God. Likewise each House of Congress provides through its chaplain an opening prayer and the
sessions of this Court are declared open by the crier in a short ceremony, the final phrase of which invokes
the grace of God." Also, former Chief Justice Burger wrote, "Some who trouble to read the opinions in
these cases will find it ironic - perhaps even bizarre - that on the very day we heard arguments in the cases,
the Court's session opened with an invocation for divine protection." Wallace v. Jaffree 472 U.S. 38, 85
(1985). Justice Burger previously stated a similar opinion in Marsh (see ante Part I of this dissent) , as did
Justice SCALIA in Lee v. Weisman, 505 U.S. 577 at 636 (1992).
Notwithstanding the explanation and examples cited above, Justice O"CONNOR's argument concerning
"ceremonial deism" is improper for several reasons. First, it is improper to assume that because a prayer
has been recited repeatedly it is no longer religious in meaning. If that were true, the Lord's Prayer and the
Ten Commandments for that matter would surely be among our most secular of items. A prayer repeated
one thousand times is, for constitutional purposes, just as religious as one recited just once, if not more so,
even if the person vocalizing the prayer has ceased to recognize its religious meaning. Secondly, even if we
assume arguendo, that the invocation or prayer "God save the United States and this Honorable Court" has
mysteriously lost its religious value due to the repetitive nature of its use, it surely must have had a
religious meaning the first time it was used. And if the forefathers did not believe that prayer to be
violative at a time quite contemporaneous to the adoption of the First Amendment, when it most assuredly
still retained its religious value, then a prayer in a courtroom of a similar nature can not be considered
violative today. That the invocations, oaths, and prayers had religious meaning to our Founding Fathers
can not be argued. President Washington stated in his Farewell Address in 1796, " Let it simply be asked,
where is the security for property, for reputation, for life, if the sense of religious obligation desert the
oaths, which are the instruments of investigation in courts of justice."( 21)
Finally, though the prayers in the case before us today are discernibly longer than "God save the United
States and this Honorable Court" (though only mildly so), they can not be considered violative solely for
that reason. If a prayer can not be considered constitutional because, as Justice KENNEDY wrote it is of a
"de minimus character" Lee at 595, then surely the reverse must be true. If a brief prayer in a courtroom is
constitutional, then one slightly longer of a similar nature must also be.
Although this practice of prayer is more than substantial enough to show that the religion clauses should
not prohibit judicial prayer, there is further evidence of judicial prayer that is contemporaneous to the First
Amendment. Our first Chief Justice John Jay, who concurrently presided over the circuit court for
Massachusetts, found no constitutional imperative that would disjoin the practice of prayer to open sessions
of the courts over which he presided. In a letter written to Richard Law, Chief Justice Jay stated that "The
custom in New England of a clergyman's attending should in my opinion be observed and continued."
Respondents brief at 34. If Justice Jay had misgivings about the practice of opening court sessions with
prayer and only wished to accommodate this traditional practice at the first session of Court in order to
oblige local custom, he apparently overcame them. His letter to Richard Law was written on March 10,
1790. A session of the circuit court commenced on November 3, 1790 and the following is found in the
court records for the circuit court : "The circuit court for Massachusetts opened on November 3, with Chief
Justice Jay, Associate Justice William Cushing and Judge John Lowell in attendance. After the usual forms
were gone through with, and the grand jury impaneled, an excellent charge was given them, by the Chief
Justice, and the Throne of Grace was addressed in prayer, by the Rev. Dr. Stilman." This practice of prayer
was continued and was recognized in a local newspaper in an article on May 14, 1791. In that article, the
newspaper reported that the circuit court had opened a new session attended by Chief Justice Jay, Associate
Justice Cushing and Judge Lowell among others. The article then stated, " The procession having arrived
at the courthouse, and the usual proclamations being made - a very respectable grand jury was sworn -
after which the Chief Justice delivered to them a short and elegant extempore charge...the Throne of Grace
was then addressed in prayer." Petitioners brief at 19 Moore v. ACLU. Even after Chief Justice Jay was
replaced as Chief Justice by Oliver Ellsworth, the practice of courtroom prayer was continued by Ellsworth
and others. Thus there is evidence contemporaneous to the Framing of the First Amendment, which John
Jay and Oliver Ellsworth played a major role in developing, that prayer conducted in a courtroom was not
considered inapposite to the religion clauses of the First Amendment.
IV
In reference to the display of the Ten Commandments in petitioner's Alabama courtroom, there is no clearly comparable proper precedent. Thus the disposition of this portion of the case must be ascertained and\or derived directly from the intent of the religion clauses of the First Amendment. As was stated before, the Establishment Clause forbids establishment of religion and perhaps proscribes establishment of one sect or denomination in preference to another. But it does not require government neutrality between religion and non-religion.
In Lynch, we found that our history includes official acknowledgment of the role of religion in American
life and the accommodation of all faiths and hostility towards none. And we also found that "The Court
has invalidated legislation or government action on the grounds that a secular purpose was lacking, but
only when it has concluded there was no question that the statute or activity was motivated wholly by
religious considerations. Even where the benefits to religion were substantial, as in Everson v. Board of
Education 330 U.S. 1 (1947) and Walz v. Tax Commission 397 U.S. 664 (1970), we saw secular purpose
and no conflict with the Establishment Clause." Lynch at 681. That the Ten Commandments have a
secular purpose in addition to a religious one is irrefutable. "It is equally undeniable, however, as the
elected representatives of Kentucky determined, that the Ten Commandments have had a significant impact
on the development of secular legal codes of the western world." Stone v. Graham 449 U.S. 39, 45 (1980).
They are one of the cornerstones of most of the legal systems of the western world, including that of the
United States. That they were God's laws before they were given to Moses and incorporated into man's
laws does not alter the fact that they are now part of man's laws. And what place, if not in a court of law,
should these cornerstones of American legal heritage be displayed.
The argument that the Ten Commandments become either wholly religious or wholly secular depending on
the context they are placed in is specious at best. Regardless of where they are displayed or what they are
displayed with, they remain both as Biblical verse and as legal precedent; both religious and secular. "The
fact that the asserted secular purpose may overlap with what some may see as religious objective does not
render it unconstitutional." Id at 46 (REHNQUIST CJ dissenting). What the Court today decides is not via
the rule of the Constitution, but somehow a contortion to Constitution by ruler. That the display of the
commandments is amidst other secular items of both legal and historical importance is undisputed. What is
disputed is how close each item is to the others, what item is placed on which wall, and which wall is
considered to afford the most prominent viewing. Until now, geometry, trigonometry, physics and number
theory have not been required reading for Constitutional discussion, but today that has all changed .The
mere display of a plaque of the Ten Commandments in a courtroom can not be construed as government
establishment of one sect or denomination in preference to another.
The Court's opinion today does not even strive to explain how the mere display of the Ten Commandments
establishes a national religion or even tends to do so. That is because there is no logical interpretation that
would reach that conclusion. But this is not the first time this Court has reached such illogical extremes to
invalidate an obviously constitutional practice.
For the foregoing reasons I would have reversed the orders of the Alabama Supreme Court. Therefore, and
with all due respect, I dissent.
Justice Scalia, dissenting.
I join in the Chief Justice's opinion in its entirety and pursue the following in an attempt only to advance
that position. This Court has long feasted on a diet of illogical reasoning and the need to support policy
with a misinterpretation of history. They've done so again. It is indeed sad commentary of the state of
affairs in this country if in fact this nation's highest court truly houses the most knowledgeable minds
available in jurisprudential thinking. Today's decision falls in line with a profound amount of poor rulings
handed down from this tribunal. The Bill of Rights and their Cadillac, the Fourteenth Amendment, have
been reduced to reservoirs for leftist policy making on a level that exceeds even this courts litany. Not only
has religion in America taken a serious turn, but history and tradition have suffered mortal blows as the
death knell sounds high atop the courthouse lawn. The true meaning and intention of the Establishment
Clause are now as dead as the authors who penned it. Standing above its grave with a bloody dagger is
none other than the Supreme Court. For once again this Court has been summoned to examine an
Establishment Clause question and once again has failed to exorcize the demon, however, convenient it
may seem to be, that is the Lemon test, Lemon v. Kurtzman, 403 U.S. 602 (1971).
I say in good conscience that this nation was founded on a belief that the tenets of Christianity and its God
are the guiding principles of the nation's laws and constitution. A belief in man's sovereignty would
contradict those underpinnings. This is not to say that God's laws and mandates and those derived by man
cannot coexist, rather than those derived by man are under the guidance of the Creator's eternal influential
thumb. Furthermore, as Justice Story commented regarding the First Amendment, "The real object of the
First Amendment was to exclude all rivalry among Christian sects." Story Commentaries, Vol. III, p. 728,
sec. 1871. And as Justice Douglas stated, "[We] are a religious people whose institutions presuppose a
supreme being." Zorach v. Clauson, 343 U.S. 306, 313 (1952).
To strip the nation's Christian heritage and devout belief in God would be an attempt to disavow a majority
of history and most of its important traditions and exercises found within. This is a most suspect
proposition.
A resolution in establishing a national religion would, of course, wholly contradict the intent of the
Establishment Clause. A proposal incorporating such would not follow the line of thinking shared by the
founders. However, prudence would dictate that an acknowledgment of God is more than appropriate.
The Lemon test as it has become to be known focuses on a trilogy of questions for analyzing whether a
government practice violates the First Amendment to see if it either promotes a secular purpose along with
religion, neither advances nor inhibits religion or that it must no foster an excessive entanglement with
religion. Lemon at 612-613. This is a tangled web of mandates that no religious circumstance can elude.
The first prong of the test suggests that the government must produce a secular purpose in relation to the
matters of religion. This is a task for which the government is ill-equipped to handle. For if a secular
reason isn't given, the government is persecuted for being religious or promoting religion. Likewise, if a
secular reason is given, the government intrudes upon the sanctity of religion and in fact is forbidden from
doing so for "A brooding and pervasive devotion to the secular or even an active hostility to religion... are
prohibited by [the Constitution]." Abington School District v. Schempp, 373 U.S. 203, 306 (1963)
(Goldberg, J., concurring).
I also think it impossible for the government to be required to be neutral concerning matters of religion.
What a daunting assignment this becomes for one could never answer a question when one is posed. Only
a mute response would contain a neutrality that would satisfy both contingents on an Establishment Clause
argument. Deciding one way could be construed as hostility while a step toward the other most assuredly
would be endorsement. As our own Justice SOUTER lamented in Lee v.Weisman, 505 U.S. 577 (1992),
when he wrote "[T]he Establishment Clause's concept of neutrality is not self-revealing...", or as petitioner's
brief states neutrality as "definitionally challenged", Brief for Petitioner at 34, Moore v. ACLU.
Furthermore, I submit that the word "excessive" is too broad a term when deciding a case of this magnitude
and ramifications like the one today. For, again, one views excessive as a mere drop in the bucket while the
other views excessive in terms of full pails. The genesis of an argument admittedly stems from two adverse
viewpoints, but when a prong of a test used to judge a matter of jurisprudence is so vague and undefined, it
commits itself to such a wide disparity that would not otherwise be evident.
Although the entire myriad of problems arising from this case troubles me, one that needs attention is this
"ceremonial deism" that the respondents use as a major foundation for their brief. I speak of Justice
O'CONNOR's opinion in County of Allegheny v. ACLU, 49 U.S. 573 at 630 (1989). The idea behind
"ceremonial deism" is as absurd as the Lemon test. Its premise is that since the invocation "God save the
United States and this Honorable Court" is repeated so often, it loses its religious significance. How
convenient for the respondents that Justice O'CONNOR came up with such a pearl of wisdom in time for
their charade before the Court.
The repudiation of such nonsense is understandably easy. The logic, if that is the term, suggests that if one
were to pray one hundred times, by the one hundredth time you recite your prayer, you have become less
religious than the first time you invoked the same prayer. The point that gets missed is that the first time
one says the prayer, it is with religious intent. Therefore, no matter what the respondents or Justice
O'CONNOR would have us believe in their end run around the Constitution, the first time "God save the
United States and this Honorable Court" was recited in court, it had religious intent. Therefore, the
invocation, albeit simple in word, is a prayer with reference to God, the Christian God.
It is clear to me that if there is one Creator, there can only be one God, by its very definition. Assuming,
again arguendo, that there were indeed more than one God, meaning each religion has its own, then the
Supreme Court has infringed Lemon itself by the use of its "ceremonial deistic" prayer. The inferences one
can make, no matter how ludicrous, are frightening with the ill-advised logic of the ACLU.
As the Chief Justice has so articulately and masterfully explained, the respondents' logic and subsequent
argument is unfounded. In my opinion, the Court has taken the Constitution off the wall along with the Ten
Commandments and placed them off in the corner where the sunshine of prudence can never harm them.
Hanging in the Constitution's place is the book of policy as written by the Supreme Court. For the reasons
authored by the Chief Justice and the ones given supra, I respectfully dissent and would have reversed the
Alabama Supreme Court.
REHNQUIST CJ dissenting opinion Endnotes
(1) J. O'Connor's endorsement test introduced in Lynch v. Donnelly 465 U.S. 668, 687-689 (1984) and J. Kennedy ceoercion test proferred in Lee v. Weisman 112 S. Ct. 2649, 2655.
(2) To claim this is to suggest that each time our population demographics change we should set out to completely revamp or update our constitutional doctrine. Thus with each new census (or even worse each new poll) we have a new interpretation of the Constitution, a rewriting of precedent and absolutely no firm or lasting conventions in constitutional law.
(3) Letter from James Madison to Henry Lee (June 15, 1824) in 9 Writings of James Madison (Gallard Hunt, ed. 1910).
(4) Except, obviously, for the addition of amendments.
(5) Thomas Jefferson, "Memoir, Correspondence and Miscellaneous", letter to William Johnson (June 12, 1823), in, 4 Papers of Thomas Jefferson, 373 (Randolph, ed. 1830).
(6) Letter from Alexander Hamilton to James Bayard (1802), in Works of Alexander Hamilton, reprinted at 542 (John C. Hamilton, ed. 1971).
(7) Andrew Lipscomb & Albert Bergh, The Writings of Thomas Jefferson, reprinted at 281.282 (1853).
(8) Without the aid of long distance conference calls, Jefferson's only contribution to the debate would have been through his previous writings and prior conversations with those who participated in the debate, a very indirect role at best.
(9) An example of Jefferson's incongruence is found in his refusal to give a Thanksgiving day presidential prayer. A practice nearly every president including Washington before him has followed.
(10) C. Antieau, A. Downet & E. Roberts, Freedom From Federal Establishment, 180 (1964).
(11) Editorial by Oliver Ellsworth in American Mercury (1788).
(12) Ordinance of 1787 for Northwest Territory, reprinted in Church and State in the U.S. (Stones, ed. 1950).
(13) American Guide Series, Washington City and Capital, 103 (1937).
(14) Story Commentaries, Vol. II, p. 630, sec. 1891.
(15) supra at 14.
(16) Thomas Cooley, Treatise on Constitutional Limitations, 470 (1890).
(17) Robert Armstrong, Reports of Committees of the Senate of the United States of the Thirty- Second Congress, 4 (2nd Sess. 1852-53).
(18) A.O.P. Nicholson, Reports of the House of Representatives of the Thirty-Third Congress, 10 (1st Sess. 1854).
(19) In Constangy unlike this case, the judge not only selected the prayer, but recited the prayer himself. In addition, the prayer was recited in front of the jury, lawyers and defendants. Finally, the court in the Constangy case incorrectly interpreted Marsh and thus did not rely on it as precedent as should have been the case.
(20) e.g. See Marsh v. Chambers 463 U.S. 783 (1983), Lynch V. Donnelly 465 U.S. 668 (1984) and Larson V. Valente 456 U.S. 228 (1982)
(21) George Washington's Farewell Address 1796 as found in Church and State in the United States 494 -495 (Anson Phelps ed. (1950).