In 1962, the Supreme Court banned school prayer. It was a controversial decision to be sure, but Dr. Sally Gordon says that opinion paved the way for religious studies programs at state universities.
School Prayer Banned
Sally: Of course, and I love talking about this stuff. In 1962, the Supreme Court of the United States held that a very short and, honestly, vapid prayer that had been composed by a committee commissioned by the New York Board of Regents, the public school directors, to open the school day, a very short prayer that called upon God to protect our country, our teachers, and may we learn well. I mean, it really was nothing. That’s not the exact language, but you get the sense. It was short. It was nondenominational, and it was challenged. It was controversial. Many school districts refused to do it. Rochester, for example, said we’re way too diverse. We’re not going to do that. But, in a town in Long Island, a family challenged. It was called the Regents’ Prayer. It went all the way to the Supreme Court of the United States. The Supreme Court said [that] governments have no business writing prayers. “No, this cannot stand.” This was a very, very unpopular decision. Eighty percent of Americans disagreed. Dwight Eisenhower disagreed. For the first time, Catholics disagreed. They had brought most of the anti-school prayer cases before that, because the prayers were Protestant. In this one, it was a Jewish rabbi, a Catholic priest and a Protestant minister who sat down. It was prayer by committee. Can you imagine anything less meaningful? Anyway, it was a very unpopular decision. A year later, from right outside Philadelphia, a school district called Abington School District was challenged by the family of a guy named Ellery Shempp, a very unusual last name.
GT: One of the Three Stooges. Wasn’t that his name, Shempp?
Sally: They were: Moe, Larry, Curly and Shemp. (Chuckling) Right. So, what was it? Woo, woo, woo!
GT: (Chuckling)
Sally: Anyway, the case got to the Supreme Court. Court watchers, as we’re called, around the country, predicted that the court might well walk back the decision because it had been so very unpopular. Instead, they doubled down. This case involved the recitation of the Lord’s Prayer, not composed by a state and/or Bible readings, a few verses over the P.A. system at the beginning of the day. The Supreme Court said, “No, you can’t do that. You cannot teach students how to be religious. You can’t teach religion.”
Religious Studies
Sally:. There was a 90-page concurrence by Justice William Brennan, a liberal Catholic, who said, “You can’t teach religion, but you can teach about religion. So much of our history, our art, our music, our culture, is deeply informed by religion. Study that. Just don’t make people pray.” Because you will never get universal agreement on prayer or on the Bible, right? Think of it. Douay-Rheims versus King James. Would the Book of Mormon count, right? So, you can imagine how complicated that gets. Brennan’s words were taken very seriously by a group called the National Association of Biblical Instructors who taught college. So, this second case was decided in 1963, Abington School District against Shempp. In 1964, they changed their name to the American Academy of Religion. And to this day, religious studies scholars say, “We teach about religion.” They brag about how they never endorse or condemn any religion. They are students of religion. They don’t teach you how to practice. They study you, when you practice. Around the country, a new field was born: Religious Studies, the study, not the practice. Public universities began to create religious studies departments–the U [University of Utah,] right up the hill from us here. The U put in a religious studies department, and it’s very good.
GT: Why doesn’t BYU have one?
Sally: It’s a different approach. So, for religious schools, many of them don’t have religious studies departments. They have theology departments, or philosophy of religion departments, or ministry or mission courses. So, one of the things that happens is that public universities realized that the Supreme Court was talking to them. You can do this in state run institutions. So, Indiana University, UC Santa Barbara, those are the two premier public school religious studies departments, but they’re all over the country. The field blossomed As I said, Jan Shipps, who taught the world how seriously they should take the Mormon tradition, her book used the tools of religious studies. She talked about prophecy. She talked about Exodus. She talked about sacred space, the kingdom in the tops of the mountains, and sacred time, traveling into the Old Testament, as the Saints did, as they voyaged westward. So, I do think that we’ve learned a lot from religious studies.
Are you as excited as I am about religious studies, especially Mormon Studies departments? Why doesn’t BYU study Mormons?
Antonin Scalia’s polarizing religious decision in 1993 seems ready for the chopping block. The Supreme Court justice wrote a decision that limited the free exercise clause of religion. Dr. Sally Gordon, a constitutional scholar from the University of Pennsylvania says court watchers expect this decision to eventually be reversed.
Scalia’s Polarizing Religious Decision
GT: It seems like there was another case involving Antonin Scalia that you talked about that kind of counteracted the Brennan opinion. Is that right?
Sally: It did. It really cut it way back. So, that’s a perfect illustration of how uncertain our case law is, because it’s now getting ready for the guillotine. Justices have announced that they want to reverse it, and it looks like it may well go. In 1990, Antonin Scalia, who really was not a fan of the Free Exercise Clause, although he was a deeply religious man, he held that two Native Americans who had engaged in peyote rituals in Oregon and been fired from their jobs for doing so, did not have a right to collect unemployment insurance. The first case that really protected religious liberty in a profound way, was called Sherbert against Werner and that was decided in 1963, just like Abington School District. William Brennan wrote the majority opinion in Sherbert against Werner and said that a woman who refused to work on a Saturday, (she was a Seventh Day Adventist,) who was fired from her job for refusing to work on a Saturday, [she] deserved to get unemployment insurance, so a case very similar to the one involving the peyote rituals and being fired and all they wanted was unemployment insurance.
Sally: What Scalia said is, “Listen, if there’s a neutral and generally applicable law and it’s been applied to you, you’re out of luck. Sorry, you need another right.” You need another right. It could be speech. It could be [something else.] And so, many, many scholars and lawyers began drastically retrenching. It was a very unpopular opinion. Congress was so ticked off at this, that Scalia had virtually undone the Free Exercise Clause, that they passed a law called the Religious Freedom Restoration Act in 1993, trying to reverse Scalia’s opinion.
GT: Oh, wow.
Sally: Yes, and it went back. There was a case involving a church in Texas that went back up to the Supreme Court. In 1997, the Supreme Court held that, as applied to the federal government, the Religious Freedom Restoration Act is unconstitutional. So, it took a while. But, about five years later, Congress passed a new law called the Religious Land Use and Institutionalized Persons Act, that is to protect people confined in insane asylums, prisons, and other institutional settings, as well as land use. So, one of the things you see, for example, in many suburbs, or in urban renewal in city centers, is they’ll prohibit churches or synagogues from locating there, in part, because they don’t pay taxes. And, in part, because they don’t produce reliable traffic. They’re episodic. So, there’s good city planning reasons not to allow that. But, it’s pernicious. It’s really pernicious.
GT: A city planner could say, “I don’t like the Mormons. we’re not going to let you go to church here,” or the Jehovah’s Witnesses, or the Scientologists.
Sally: They wouldn’t really say it that way. They’d say things like, soup kitchens are not a good idea for a flourishing downtown area. We don’t want people sleeping under quilts that you have to step over to get to the restaurant. That that’s how they put it, and I think that’s how they’d mean it. It’s very rare to see anyone sort of act that way. The case I’m thinking of that that did feature something like that is a case called Church of Lukumi Babalu versus Hialeah, and it was it’s connected to the Mariel boatlift, which brought over a lot of practitioners of Santeria, which involves animal sacrifice. Santeria practitioner’s had kept quiet for a long time. But, they announced in the early 1990s, that they were planning to build a church in the City of Hialeah.
Sally: This was a substantially Cuban versus Cuban battle. So, the Orthodox Catholics brought in a priest to tell the city council about how bad this is. The city council said things like, “Oh, we don’t want those voodoo nuts practicing here.” So, it was all over the place, and you see that sometimes in that kind of internal debate. You see it sometimes with eruvs. Do you know what those are? So, for Orthodox Jews to carry on the Sabbath, they have to be within a certain sacred space. Generally, a very thin wire will get the job done, often strung on utility poles or other poles or light poles. You’ll see, for example, towns resisting an eruv, because they point to other towns where an eruv went up and the Orthodox took over and everybody else moved out. That’s often an internecine fight among reform and conservative Jews and Orthodox Jews. So, you can see that kind of targeting of a specific religion, in that case. But, really, it’s more about, do we want soup kitchens or outdoor feeding of the poor, in a downtown area when we’re really trying to bring in, oh, I don’t know, Starbucks, or fancy restaurants and so on.
GT: Okay. All right. So, the Scalia decision seemed to pull back on some of the expansion of religion. Is that right?
Sally: Or expansion of religious rights. But, I think it’s fair to say and I really want to emphasize this, the rule in Free Exercise cases is plaintiff loses. The Free Exercise Clause is not a happy place.
What do you think of Scalia’s opinion on the free exercise clause? Do you agree? Should Scalia’s decision better protect religious liberty?
Wheat & Tares 
School prayer is a nonissue with me. When my children were in school, I would rather there not have been prayer. But some elementary school teachers prayed. I didn’t object.
My world is very diverse: Christians and non-Christians, believers and atheists, I would rather religion, in most forms, stay out of schools. Even a very carefully drafted prayer would not cover the spiritual needs of all the students.
There are too many things in the world that divide us. School prayer is a symptom of one of those things. Pray at home or at church. Children should enjoy the diversity of their classmates. It’s a fun world out there.
Freedom of religion: The idea that religion is under attack in the United States is alarmism at best and outright deception at worst (talking to Bednar, Oaks, and Rasband). Nobody is attacking organized religion or the right to worship according to your beliefs in the United States. But when you bring your religion into the public square, things can get messy. We live in a diverse country and religion is only going to further divide us if not kept in a private space. Of course, there are other issues such the Church’s tax exempt status coupled with its enormous wealth that is a huge gray area.
School prayer: Even when I was a TBM I was 100% against school prayer because I knew they would never do it “right”. Even Christians can’t agree on how exactly to pray. Now imagine bringing other religions into the mix. But I think a moment of silent reflection is certainly appropriate. Now that I’m out of the Church I’m 110% against school prayer, especially living in Utah. Why should a non-LDS kid have to be exposed to the dominant religion in any way at school? And of course the display of a nativity scene on public property is totally inappropriate unless you’re willing to also allow a display of Mohammed, etc.
They should absolutely teach about Mormons at BYU. It would be the most ideal place to teach about Mormons and Mormonism. But they won’t because they don’t want to look at Mormonism objectively there. They worry that if they helped students look at Mormonism from outside the Mormon framework that those students might not want to be Mormon anymore. They will continue to teach Mormonism there, not about Mormons and Mormonism.
On religious freedom. It would seem the biggest threats to it are coming from the very people who obsess about religious freedom. For those who routinely have the least amount of religious freedom are Muslims. The religious freedoms of liberal Christian churches who fully support LGBTQ+ rights and women’s right to an abortion is routinely threatened. The religious freedom issues that right-wing evangelical moonbats scream and cry about is a charade through and through.
I appreciate the conversation in the OP. There is a question that I have been thinking about for some and that is, “is the right to religious freedom absolute?” I am not claiming any special insight to the question, just asking the question.
“is the right to religious freedom absolute?”
The Supreme Court says no. Sally mentions a case at Bob Jones University where the South Carolina school at first refused to admit black students, then admitted only black married students, then admitted black single students who promised to date within their race. The Supreme Court ruled that the government had an interest in preventing discrimination against blacks because the Civil War was fought over race, so religion lost. Sally says religion wins when there is no compelling state interest.
“Why should a non-LDS kid have to be exposed to the dominant religion in any way at school?”
While I understand this is an LDS blog, I think this misses the bigger point. The leading case, Santa Fe Ind. Sch. Dist. v. Jane Doe involved a Mormon and a Catholic who complained because the District’s adopted policy on prayer (fashioned by Evangelicals) excluded them. https://www.law.cornell.edu/supct/html/99-62.ZO.html
Some adherents of religious freedom only want freedom for themselves and want to discriminate against other (especially non-Christian) religions. We need to think about the larger issues that include Muslims, Jews, Shintos, Sikhs, and other non-Christian religions if we truly want to have religious freedom. Too often, we’re myopic with regards to Christianity, and only care so long as “our” religion isn’t discriminated against. The Court should view this from a larger, and even non-Christian point of view.
Interesting. It’s possible that, as a staunch orginalist, Scalia’s position was that the “wall of separation” between church and state envisioned by the Framers meant that the state should not meddle in religious freedom disputes at all. Perhaps he viewed such complaints as frivolous and not worth his time. In some ways, I agree with him. Religious exercise complaints are different from classic discrimination complaints (which are based in identity, such as a person being denied housing or employment because of religious background), and instead are based on an individual’s perceived infringement on their ability to practice their religion publicly, even when those practices cause harm to others.
Religious groups and individuals who try to play the “religious freedom” card aren’t trying to advocate for fair and equal treatment, they are seeking special treatment and privileges that support their own exceptionalist views, often at the expense of others. Dallin Oaks lives and breathes this insidious idea. Eventually, it threatens the intent of the Establishment Clause, when certain religious groups are given permission to force their beliefs on others and get favored status in the public sphere. It’s the opposite of what the Framers envisioned.
I’ve never been a big fan of Justice Scalia, but I’ll take his side this time. I wonder what his opinion would have been on the Masterpiece Cakeshop case had he lived long enough to hear it.
Several years ago I lived in the southeastern U.S. and was serving as a youth Sunday School teacher. On occasion, the youth in the class mentioned that their vocally religious public school classmates (mostly Evangelical/Southern Baptist) were often quite showy, pushy and obnoxious about their own beliefs, to the point that the few LDS students sometimes felt excluded or denigrated. As far as I know, the behavior never crossed the line of pure discrimination/mistreatment, but I reminded them that the First Amendment exists to protect them from such harassment. Meanwhile, there were a few vocal older members of that ward who were in favor of restoring school prayer, who could never seem to make the connection that such restrictions actually protect our youth from state-sanctioned ridicule and discrimination.
These are two very different issues.
I was teaching adult Gospel Doctrine about two years ago when one of the students made a complaint about prayers not being allowed in schools. Of course, prayers are absolutely allowed–it’s just that school employees–who are by nature of their employment government employees–can’t be involved with leading prayers or directing students to pray. Frankly, I don’t want the government involved with the religious upbringing of my kids. I responded to the class member comment by stating that different people have different opinions on the matter, but I should have told her that I didn’t want government employees telling my kids how to pray.
As far as this Supreme Court case goes, Employment Division v. Smith was very much wrongly decided. The decision was 6-3, with three of the four liberals on the court dissenting. The conservatives on the court all decided to restrict religious freedoms. Religious practices, and especially religious practices of minorities, need protecting. Doesn’t matter if it’s smoking peyote or sacrificing animals like the priests in the OT did. Obviously there needs to be some kind of harm analysis done, but the court here placed a relatively minor law, the disobedience of which was entirely harmless, over a basic constitutional right.
Actually, Oaks is not a big fan of school prayers, especially prayers written by public officials. He feels it is a violation of free speech.
Elder Oaks signed the Williamsburg Charter. So his views are far more mainstream than several of you suggest.
Yes. Oaks obsession with religious freedom is to ensure the LDS church continue to be free to discriminate against LGBT+ without losing tax exempt status
When I was a kid, my public school broadcast prayers over the loudspeakers. The prayers were selected by God knows who, and read by student volunteers. I wish I had volunteered, and then substituted a loud “Hail Satan!” Fortunately, today we have the Temple of Satan to arrange this sort of thing.
On protecting religious practices, especially when there are no compelling governmental grounds to restrict them, well:
(a) pot smoking (sacred to Rastas!)
(b) public nudity (traditional among certain Jain monks and Hindu saddhus)
(c) polygamy
(d) carrying knives or swords (Khalsa Sikhism)
Religion is about to intrude into jurisprudence directly https://www.cnn.com/2022/05/02/politics/roe-v-wade-supreme-court/index.html?fbclid=IwAR1PgJTavf3E7Ira6ZK2pvbb3xG4gt2l4qD3SnQRS5DRXP9TZlVcp6Whr2w
Maybe a threadjack, but Stephen, I’m curious. Why do you frame the leaked draft opinion that way?
In defense of Employment Division v. Smith, it provides a fairly workable approach for balancing state interests against religious claims to be exempted from this or that law that everyone else has to follow. Religious exemptions are a problem for a variety of reasons. First, there are a lot more religions now than a century ago, or (to be more precise) courts and most citizens now recognize the valid religious standing of a lot more religions and denominations than just Catholics and Protestants. So if you want to accommodate religious sensibilities and grant religious exemptions liberally, you are going to be granting a lot of religious exemptions, some of which would be very controversial. But you can’t play the “religious exemptions for me but not for thee” game in court anymore. So Smith got it right.
Second, as claims for religious exemption would proliferate under a liberal accommodation approach, courts would increasingly be asked to distinguish between legitimate religious claims and (for lack of a better word) phony ones. We don’t really want courts doing that. You might think there is no problem with a court declaring Pastafarianism a phony religion (as a basis for rejecting a Pastafarian claim for some religious exemption). Until a dozen loony Evangelicals bring a case seeking to declare Mormonism a phony religion. Inviting or requiring courts to distinguish between legitimate and phony religious claims is just a very bad idea. By paring back the scope and basis for valid religious exemption claims, Smith got it right.
Not a cougar, we discussed the abortion issue specifically in the conversation. While the 1973 Supreme Court decision was based on privacy, the reality is most court challenges to roe v Wade are really religious objections. I think that’s what Steve was getting at.
When I was 9, we moved from the Northeast to Texas. That was my first encounter with school-sanctioned prayers. I don’t know what else to call them (it’s not “prayer in school” as if it’s voluntary when the teacher chooses a student to pray and forces everyone to participate). That’s what’s always on the table for discussion here. It’s not about a devout individual minding his or her own business. It’s about an authority figure influencing kids to do what they think is best. Of course these were not “Mormon” prayers. They were Evangelical and sounded off to me. We didn’t like this rural Texas town, and we moved a year later to New Jersey, back to sanity, at least with regard to religion. Most kids went to Church. Most talked about who was which religion. Nobody prayed in school, and teachers did not give preference to their own faith.
I agree in principle with Zla’od that the Church of Satan has done more to protect minority religions in the United States than any so-called Christian sect ever did. It’s because the Christian sects don’t want religious liberty for all, just religious supremacy for themselves and recognition in their peer class of faiths.