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RELIGION, DEMOCRACY AND THE PUBLIC SCHOOLSMichael J. Davis*

INTRODUCTIONIn the six decades since it began adjudicating issues involvingreligion and K-12 education, the United States Supreme Court hasissued numerous opinions on various aspects of that relationship.Several ofthe Court's viewpoints have changed over time. It explicitlyreversed itself on the constitutionality of using publicly-paid specialistsin parochial schools,' and dramatically changed its perspective on publicfunds flowing to those institutions.^ But the Court has never wavered onissues regarding religious activities in public schoolsit has struckdown every policy or program it has chosen to review.^ No opinion wasunanimous, and rationales changed. But no result has diverged from theCourt's original perspective that the Establishment Clause's brightestline ran jus t outside the public school grounds.This piece begins with first doctrinal, then policy reviews of theCourt's nine school prayer decisions. Parts I and II analyze thedecisions as constitutional doctrine, dividing them along parallel lines oftime and quality. In Part I, I show that the holdings and rationales of theCourt's early school prayer decisions are both sound and commendableas constitutional doctrine. Part II takes a longer look at the remaininglater decisions however, and reveals a struggling Court often relying onspecious, fabricated or a priori reasoning to reach the apparentlyinevitable, but questionable, conclusion of unconstitutionality. Part III

takes up the effects of the Court's decisions on social and politicalpolicy. I argue that the early decisions, though controversial, freedAmerica from a past of sectarian domination, while the later decisions* Centennial Teaching Professor of Law, University of Kansas School of Law, Lawrence,Kansas. Thanks toMeghan Walsh for excellent research assistance.1. Compare Agostini v. Felton, 521 U.S. 203 (1997) with Aguilar v. Felson, 473 U.S. 402(1985).2. Compare Zelman v. Simmons-Harris, 536 U.S. 639 (2002) with Comm. for Public Educ.& Religious Liberty v. Nyquist, 413 U .S. 756 (1973).3. The number includes two decisions involving curricular content {Epperson and Aguillardinfra), but excludes two regarding equal access of student or community religious groups topublicschool facilities (Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384; Bd. of

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34 JOURNAL OF LAW & RELIGION [Vol. XXVhelped sow the seeds of several related and unhappy developments,especially ones promoting the very religious divisions they purported toguard against.Part IV moves the focus from the quality and value of the Court'sschool prayer decisions to whether some of these issues would be betterresolved through democratic means. The centerpiece of thisexamination is the author's observation, and occasional participation, ina decade-long political battle in his home state of Kansas over anti-evolutionists' attempts to influence the science curriculums in K-12public schools."* While recognizing that the battles often held the stateup nationally in the worst possible light, the Part concludes that therewere many positive outcomes that would not have occurred had thematter been judicially decided. Part V finishes the article with a brieflook at which kinds of school prayer issues might benefit from ademocratic rough-and-tumble process, and which are best resolvedquickly and definitely by the federal courts.

I. THE FIRST DECISIONS : A CONSTRUCTIVE BEGINNINGFour of the Court's first five school prayer cases are almostcertainly correct as legal interpretations of the Establishment Clause.The first, McCollum^ held unconstitutional a school district policy ofinviting members of the clergy to enter the public schools and holdreligious instruction once each week. As would be the same insubsequent cases, an opt-out provision for those choosing not toparticipate failed to save the program.*The next two decisions involved striking down state-originated,daily religious activity in all public school classrooms. Engle^concemed a simple, non-sectarian prayer written and recommended by

the New York State Board of Regents. Schempp^ involved aPennsylvania statute requiring that "at least ten verses from the HolyBible shall be read, without comment, at the opening of each publicschool day."^ An accompanying case from M aryland involved a verysimilar School Board requirement based on a state enabling statute.'"4. As I will describe, 1 was not only an observer but a legal and community participant inthis history.5. McCoUum v. Bd. of Ed uc, 333 U.S. 203 (1948).6. True to its early view that compulsion is not a necessary aspect of an Establishmentviolation, the Court never references the opt-out provision.7. Engel v. Vitale, 370 U.S. 421 ( 1962).

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33] RELIGION, DEMOCRACY AND THE PUBLIC SCHOOLS 35The programs had opt-out provisions, but none survived the Court'sreview." Schempp did foretell the future in one way, however, byspawning three additional opinions, two of them worrying about whetherthe Court was developing a hostility toward religion.'^The fifth school prayer decision was Stone v. Graham,^^ holdingunconstitutional a Kentucky statute requiring that a privately-fundedcopy of the Ten Commandments be posted on the wall of every publicschool classroom in the state. By this point the Court had adopted theLemon test, and used it in a. per curiam opinion to strike down the statuteas having been enacted with no secular purpose. There was a strongRehnquist dissent, accusing his colleagues of going out of their way toerase any trace of religion in the public schools by ignoring thelegislature's legitimate secular purpose in imposing the requirement.'"Rehnquist's and a couple of Stewart's dissents notwithstanding, itis difficult to quarrel with any of these four outcomes. In his interestinganalysis of first amendment decisions. Professor Conkle terms Engle andSchempp "easy" cases because ofthe "worshipfiil" nature ofthe activity,the sectarian basis of the Bible choice, and the coercive setting ofcompulsory school attendance.'^ Each of these factors was, no doubt,infiuential in the Court's decision. But the principal problem in all ofthese cases had to be the nature ofth e govemm ental involvement. If theEstablishment Clause means anything, it surely means that thegovemment should be neither composing prayersfor any situationnor dictating the content of daily religious activities in the publicschools. Indeed, it is difficult to imagine a circumstance in which eitherprogram would be constitutional.Much the same has to be said for striking down a program that fillsthe public school halls with clergy once a week , or for a state statute thatmandates tattooing all of its public school classrooms with the TenComm andments. No one has disagreed with McCollum in the sixtyyears since its release, and the four concurring Justices in the case

11 . Only Schempp directly addresses the point:The Free Exercise Clause . . . purpose is to secure religious liberty in the individual byprohibiting any invasions thereof by civil authority. Hence it is necessary in a freeexercise case for one to show the coercive effect of the enactment. .. . The distinctionbetween the two clauses is apparenta violation of the Free Exercise Clause ispredicated on coercion while the Establishment Clause violation need not be so attended.374 U.S. at 223.12. Id at 246, 2 99.13. Stone v. Graham, 449 U .S. 39 (1980).

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36 JOURNAL OF LAW & RELIGION [Vol. XXVmerely wanted a stronger statement of separation.'* And while Stonewas decided a quarter century before the Court's major decisions onpublic displays ofthe Ten Commandments, it flts comfortably within the"contextual" paradigm McCreary and Van Orden later used to flnd onedisplay unconstitutional and a second constitutional.'^

II. THE REMAINING DECISIONS :MUDDLED DOCTRINE, SUSPECT RESULTS

The Court's other flve school prayer decisions, however, are farless defensible. Four, Epperson v. Arkansas,^^ Wallace v. Jajfree^^Edwards v. Aguillard^^ and Lee v. Weismar^^ are very difficult tosupport as doctrine, while the fifth, Santa Fe Independent SchoolDistrict V. Do^ is sufficiently opaque that it defies analysis.Conkle cites both Wallace and Weisman as "not-so-easy," aranking that is quite charitable to both opinions. Wallace, which stmckdown an Alabama "moment of silence" statute suggesting the time couldbe spent for "meditation or voluntary p rayer" is especially peculiar. Nomember of the Court has ever indicated that a "pure" moment of silenceat the beginning of the public school day would be unconstitutional.Indeed, the clearest endorsement of the idea came from Justice Brennan,usually the Court's most watchfril patrolman against prayer in publicschools. Even a casual reading ofth e two concurring opinions and threedissents in Wallace brings to six^with Brennanthe members of thatCourt who would have held an unadulterated moment of silenceconstitutional.The problem regarding that particular statute was that when it waspassed there was already on the books a statute calling for a moment ofsilence for "meditation." The second statute merely added "or voluntary

prayer," an addition the majority found reflected the absence of anysecular purpose. This use ofthe first prong o Lemon in any context willbe discussed below. For now, the author of Lemon, Chief JusticeBurger, questioned the appropriateness of its use here.There was also a very short dissent from Justice White and a verylong one from Justice Rehnquist. But none of the opinions make the16. McCollum, 333 U.S., at 212.17. Compare McCreary County v. ACLU of Ky., 545 U.S. 844 (2005) with Van Orden v.

Perry, 545 U .S. 677 (2005).18. Epperson v. Ark., 393 U.S. 97 (1968).19. Wallace v. Jaffree, 472 U .S. 38 (1985).

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33] RELIGION, DEMO CRACY AND THE PUBLIC SCHOOLS 37obvious point that any objective viewing of the statute would concludethat there were clearly related secular purposes for adding "or voluntaryprayer" to the original statute. The first was to resolve an obvious issuecreated by the word "meditation." Does that word include prayer ornot? Not an easy question, and one to which parents, teachers andschool administrators might well have been seeking a definitive answer.Relatedly, by this time in the development of the country's school prayerjurisprudence enough had been saidsome true, some hysterical aboutthe Supreme Court "taking God out of our schools," that manyAmericans, particularly Southemers, believed it was unconstitutionalever to pray inside a public schoolhouse. Informing citizens of any ageof their constitutional rights is unquestionably a secular purpose, andJustice White's brief dissent correctly states that all the statute inquestion did was answer beforehand a student's question of whether shecould use the minute for silent prayer. Additional proof that suchquestions needed to be answered can be found a decade later when theClinton Administration issued formal instructions to all public schools inthe country, explaining what kinds of religious expression or activitieswere constitutional.

Weisman is only slightly less difficult to digest as doctrine.Basically, the Court held unconstitutional a school district's practice ofusing rotating clergy to offer nondenominational invocations andbenedictions at middle and high school graduation ceremonies. Thebases of the majority opinion were the degree of state involvement in thereligious activity and the psychological coercion on students toparticipate. The state involvement included having public schoolofficials make the decision to have the invocation and benediction,selecting that year's presenter, and distributing suggestions to thepresenter about how to make the remarks non-denominational. Thepsychological coercion came from a de facto attendance requirementcoupled with the absence of an outlet for those who did not wish eitherto participate or be seen as participating.After making the point that such activities had been a part of theculture as long as there had been public school graduations. JusticeScalia's dissent for himself and three others did a highly effective job ofrepudiating the coercion argument. His ultimate argument was that anyEstablishment violations based on coercion required legal, not merelypsychological, coerciona shaky conclusion itself given earlier schoolprayer decisions. But he was surely correct in pointing out that merelystanding while the "prayer" was being offered would not refiect the

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3 8 J O U R N A L O F L A W & R E L I G I O N [ V o l . X X Vp r a y e r . F e w , i f a n y o n l o o k e r s w a t c h i n g a n e i g h t e e n - y e a r - o l d s t a n ds i l en t ly dur ing a p u b l i c p r a y e r w o u l d c o n c l u d e t h e t e e n is n e c e s s a r i l ye i t he r p r a y i n g o r a p p r o v i n g o f t h e p r a y e r . S o m e p r o b a b l y a r e , b u t m a n ym o r e a r e l i k e l y t o b e th inking about the i r g i r l (boy) f r i end, the pa r ty af te rt h e c e r e m o n y , o r h o w t o a v o i d s u m m e r w o r k . T h e C o u r t ' s c o n c l u s i o no t h e r w i s e is a fool i sh bas i s o n w h i c h t o s t r i ke down a pub l i c a c t i v i t yl on g pa r t o f t he c u l t u r e a n d i mpor t a n t t o ma n y c i t i z e n s ;

T h e a l t e m a t i v e b a s i s f o r t h e opi n i on o f t h e C o u r t r e s t s o n t h es c h o o l d i s t r i c t ' s i n v o l v e m e n t i n t h e p r o c e s s . S u r e l y t h e de c i s i on s i mp l yt o h a v e t h e ac t ivi ty i s a n insufficient basis t o f ind unconsti tut ionali ty inl i gh t o f t h e h u n d r e d y e a r s o f hi s t o ry it r e p r e se nt e d .^ ^ W hi c h l e a v e s t h es c hoo l o f f i c i a l s ' de c i s i on t o c h o o s e t h e c l e r g y o n a r o t a t i n g ba s i s a n dha n di n g t h e invi tee a b r o c h u r e r e c o m m e n d i n g t h a t t h e p r a y e r s b ec o m p o s e d w i t h " i n c l u s i v e n e s s a n d sensitivity."^'* T h e r e s u l t o f th i sa p p r o a c h w a s , o f c o u r s e , t o l e a v e t h e c o m p o s i t i o n o f t h e t e x t s t o t h ep r e s e n t e r w h i l e m a x i m i z i n g t h e pos s i b i l i t y t ha t t h e r e s u l t w o u l d n o toffend. T h e que s t i on , t he n , is w h e t h e r t h e s e s i m p l e , o p e n - m i n d e d a c t ss e r v e t o " a i d a ll r e l i g i on s , " a n E s t a b l i s hme n t v i o l a t i on s i n c e Everson.T h e m o r e p r e c i s e q u e s t i o n is w h e t h e r t h e p r a c t i c e o f offering tepidi n voc a t i on s o r be n e di c t i on s a t h i g h s c h o o l g r a d u a t i o n s is m o r e l i k es c hoo l p r a ye r ( un c on s t i t u t i on a l ) o r o t h e r p u b l i c p r a y e r s s o l e m n i z i n gpub l i c e ve n t s ( c on s t i t u t i on a l ) . ^ ' It is o b v i o u s f r o m t h e opi n i on s t ha tm i n d s c a n differ , o n t h e i s s ue , b u t t h e n on - re pe t i t i ve , n o n -de n omi n a t i on a l , n on -of f e n s i ve n a t u r e o f t he a c t i v i t y po i n t s mor e t owa rdthe second l ine o f c a s e s .

T h e t r u l y " h a r d " c a s e s a r e Epperson a n d Agui l lard, involvingl e g i s l a t i ve a t t e mpt s t o a l t e r t he s c i e n c e c u r r i c u l um, a l l e ge d l y t o s q u a r e itm or e d ir e c t l y wi t h r e l i g iou s t ho ug h t . T he d iffic u l t y wit h the s e d e c i s i on sd o e s n o t l i e w it h t h e i r o u t c o m e s . P e o p l e o f di ve r s e po l i t i c a lp h i l o s o p h i e s u n d e r s t a n d t h e da n ge r , h i s t o r i c a l l y p rove n , o f t aking t h ep o w e r t o define a n d t e a c h s c i e n c e o u t o f t h e h a n d s o f the sc ien t i s t s a n dgiving i t to t h o s e w h o d o n o t a p p r o v e o f s c i e n c e ' s c o n c l u s i o n s . A s t h ea r t i c l e un de r s c o re s l a t e r , whe n g i ve n t h e c h a n c e , e v e n c o n s e r v a t i v es t a t e s s uppor t ke e p i n g s c i e n c e i n t h e h a n d s o f t h o s e w h o l ive a n du n d e r s t a n d it .T h e p r o b l e m w i t h Epperson a n d Agui l lard i s in the a n a l y s i s o rl a c k o f i t t h e C o u r t b r i n g s t o b e a r in finding t h e s t a t u t e sun c on s t i t u t i on a l . In each ins tance t h e m a j o r i t y b a s e s it s opi n i on o n t h e

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33] RELIGION, DEMOCRACY AND THE PUBLIC SCHOOLS 39absence of a secular purpose for the enactment.^* But in neither casedoes the majority offer much by way of an evidentiary basis for itsconclusion.

Epperson is especially bereft of evidentiary support. The closestthe Court comes is in its conclusory statement thatthere can be no doubt that Arkansas has sought to prevent itsteachers from discussing the theory of evolution because it iscontrary to the belief of some that the Book of G enesis must be theexclusive source of doctrine as to the origin of man. Nosuggestion has been made that Arkansas' law may be justified byconsiderations of state policy other than the religious view of someof its citizens.^^

Aguillard is but slightly stronger, concluding that the stated secularpurpose was a "sham," and discovering the concealed purpose instatements by the bill 's princ ipal sponsor an d the religious affiliations ofa supporting "expert."^^This piece is not the first to find problems with this reasoning.^^The more obvious difficulty is that the opinions refiect, as best, how onelegislator {Aguillard) or no legislators {Epperson) viewed the statutewhen it passed. W hat were the "purposes" of the dozens of otherlegislators needed to pass the bills? W hat of the legislator who thoughtthe measure bunkum but voted for it to keep his seatsecular orreligious? This problem was exacerbated m Aguillard hy the majority 'swill ingness to reach its decision on a summary judgment record, leavingScalia to suggest a variety ofother, quite secular purposes that may haveinspired legislators to support the bill.^" In the end, the Court may havebeen right about the "purpose" in both instances. But in neither case isthat conclusion based on much beyond an uncomfortably arrogant "weknow w hat you Redneck s are up to " rationale.The other, even less inviting, aspect of the opinions is the narrowline they walk between purpose andmotivation. Indeed, at times bothseem to confuse these quite different conc epts. This has led some to th ereasonable inference that in each instance, the statute wasunconstitutional because its supporters were motivated by their religious

26. Epperson, 393 U.S. 97, 107-08 (1968); Edwards, 482 U.S. 578, 573 (1987).27 . Epperson, 393 U.S., at 107.28 . ^gM(7/ori/, 482 U.S. , at 587.29. See, e.g., MICHAEL J. PERRY, RELIGION IN POLITICS: CONSTITUTIONAL MORAL

PERSPECTIVES (1977); Douglas Laycock, The Underlying Unity of Separation and Neutrality, 46

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40 JOURNAL OF LAW & RELIGION [Vol. XXVbeliefs.^' If true, the opinions lead to places few want to go, ahypothetical journey gleefully guided by Justice Scalia elsewhere in hisAguillard dissent.^^ As he correctly notes, many of the country 's mostnoble legislative accomplishments were inspired significantly byreligious beliefs. ^ Viewing today's legislative agenda, it would bestartling if the Court held a civil rights, immigration or abortion billunconstitutional because of the role religion played in encouraging itspassage. While we are confident this is unlikely to happen, the analogyreveals the weakness in the "purpose" prong both generally and asapplied in these decisions.

There are undoubtedly less awkward approaches to these science-or-religion cases. Building a better record for appeal would be anobvious start. With that accomplished, a trial court could at leastemploy either the "effect" prong of Lemon or the endorsement test tosubstitute a collective judgment of the citizenry for the a priori judicialjudgment encouraged by the purpose test. An example of this moreattractive model is District Judge Jones's recent opinion in the Dover,Pennsylvania case challenging its school board's requirement that highschool biology students be read a statement suggesting that IntelligentDesign (ID) is an alternative explanation to the evolutionary "theory"they were about to study. '' After carefully reviewing the religiousfoundations of ID, Jones finds that the concept is not "science."^' This,in tum, leads to the logical conclusion that "[ID] is not [science], andmoreover [it] cannot uncouple itself from its creationist, and thusreligious, antecedents."^* That being so, he holds the attemptedimposition of the ID statement violates both the endorsement test andLemon."This reasoning at least gives an impression of care and fairness

baldly missing in Epperson and Aguillard. Still, there are gaps. Thekey finding regarding both "endorsement" and "effect" comes early inthe opinion when Judge Jones concludes that " . . . the religious nature ofID would be readily apparent to an objective observer, adult or child."^^If that is so, it raises two interesting questions. First, if it is so apparent,why does it take the next twenty-eight pages to lay out the evidentiary31. Douglas Laycock, Freedom of Speech That Is Both Religious and Political, 29 U.C.

DAVIS L. REV. 793(1996).32. Aguillard, 482 U .S., at 636-37 (Scalia, J., dissenting).33. / a t 6 1 5 .34. Kitzmiller v. Dover Area Sch. Dist., 400 F.Supp.2d 707 (M.D. Pa. 2005).35. W a t 7 1 4 .

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33] RELIGION, DEMOCRACY AND THE PUBLIC SCHOOLS 41base? Alternatively, if any adult or child in the comm unity wouldreadily recognize ID 's religious nature, what is the concern? Is not thefear underlying these cases that children will be hoodwinked intomistaking religion for science? If the court is right, the Dover ninthgraders presumably would have listened half-heartedly to the one-twominute ID spiel, then correctly concluded it was the product of somereligiously-motivated folks somewhere in the system. No harm beyondsome wasted time. The other, basic problem with this and otherdecisions on "science or prayer" is that they all compare apples towalnuts. As Stephen Jay Gould pointed out in his essay Justice Scalia'sMisunderstanding^^ science/evolution does not concern itself with"orig ins," while that concept is an important aspect of religion. Thismisunderstanding, as Gould correctly pointed out, is not science'sfault."" But it nevertheless both undermines the logic of decidingsomething is religious because it is "not science," and suggests ways thatwily school boards could craft pre-course statements about science thatwould fall outside any perceived attack on its methodology or tentativeresults.

The Court's final school prayer decision, Santa Fe IndependentSchool District v. Doe,^^ strikes down "voluntary" prayers before highschool football gam es. The case is difficult to rate on the Conkle scale,"^in part because of a rambling, fact-based majority opinion that holds anunimplemented, multiple-versioned school district policyunconstitutional under the Lemon endorsement, and coercion tests."^ Ina majority opinion that the dissent claims "bristles with hostility to allthings religious in public life,""" the Court brushes by the idea of waitingto see how the policy would be implemented, then rejects a series ofsometimes pale school district arguments attempting to differentiate itsfacts from Court precedents."^ In the end, we know only that prayersdelivered by an elected student before public school athletic eventsviolates every major test constructed by the Court over a half century.Without doubt, the degree of school involvement in Santa Fe waspervasive and, therefore, constitutionally suspect. But the end productwas a short "invocation" offered by an elected student under noguidance from school officials, delivered at a time when most in the

39. Stephen Jay Gould, Justice Scalia's Misunderstanding, NAT. HIST. 96, 1 4-21(19 87).40 . Id41 . Santa Fe Indep. Sch. Dist., 530 U.S. 290.42 . Conkle, 5upro note 15.43 . Santa Fe Indep. Sch. Dist., 530 U.S. at 304-13.

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42 JOURNAL OF LAW & RELIGION [Vol. XXVaudience were free to stand, sit, buy popcom , or visit the washroom. So,in the end, it is probably a "not so easy" case with minimal precedentialvalue.

IIL TH E SCHOOL PRAYER DECISIONS A S POLITICAL OR SOCIAL POLICYThis legal analysis of the Court's Establishment jurispmdence onpublic schools refiects that while most of the early school prayerdecisions are analytically sound, a similar proportion of later opinionscarry serious analytical fiaws. That is disturbing, of course, but less so ifthe collective outcomes have served the country well as strong, clear and

useful political or social policy. Useful and transparent judic ial opinionsinform and counsel. Opinions creating sound constitutional policypromote the general good while avoiding political or social unrest. So ifthe school prayer decisions have aided the country in sorting out theinevitable points of contact between church and state, we should applaudthe destination in spite of any mishaps in the joumey.Over the six decades of these decisions, the Court has articulatedseveral political or social values it believed were forwarded by a strictseparation in public schools. Three are the most often repeated,

however. The first, especially emphasized in all early Establishmentdecisions, was to avoid the mistakes of the Founders' Europeanancestors w hosefi-eedoms,and even lives, were so often lost to religiousoppression. The second, always present but increasingly relied on, wasthe coerciye nature of permitting religious activities a) led by adult rolemodels, b) before impressionable children, c) who were required by thestate to be present, d) when a possible result was that non-believerswould feel like outsiders. And the third, usually a modemized versionof the first, was to keep the country from falling into divisive andenervating religious quarrels.In light of these interests, the early decisions again look good asinstmments of social policy. McCollum stopped in its tracks thedreadful idea of bringing clergy to the public schools to teach doctrineon a regular basis. Far more important, though, were Engle, Stone and,especially, Schempp in serving as change agents to rid the country of avast accumulation of state-initiated, organized, religiously-basedintrusions into the public schools. The breadth of these programs isreflected in the amicus support for the defendants in Murray v. Board ofCommissioners, the companion case to Schempp. The Attomey Generalof Maryland appeared, of course, to defend both the state's enabling

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33] RELIGION, DEMOCRACY AND THE PUBLIC SCHOO LS 43statute and the school board decision to require the prayer."** But he washardly aloneAttorneys General from eighteen other states, from Maineto Arizona and Florida to Idaho, also joined his amicus curiae briefurging the Court to uphold the Maryland Court of Appeals decisionfinding the practices constitutional."*^ The reason for this outpouringwas, of course, that these kinds of statutes and the practices they enabledwere everywhere in a country that had for decades found the publicschools appropriate places to parade Christian, usually mainlineProtestant, values.

The ensuing, virtually unanimous opinions barring such practicesmarked a clean break from this past, and came as the country wasbecoming ever more religiously and ethnically diverse. In short, theseopinions banning various methods of state-blessed, daily, mandatoryreligious activities were both in keeping with the social policies onwhich the opinions relied and instrumental in removing sectarianinfluences from the public school day. Few would wish to retum tothose days, and the Court deserves great credit for its strong move toeliminate the practices.When the other five opinions are added to the political and socialpolicy mix, however, the results become considerably less clear. Thereis neither time nor space enough to fully discuss the collective decisionsin light of all three basic, underlying Establishment policies. Theprimary purpose of this article is to analyze them in light of the"avoidance of political divisiveness" comerstone. But one should notein passing that there is substantial doubt that the "avoid the Europeanmistakes" and the "coercion" bases have been particularly well served,either. Religious wars between and within European countries are downconsiderably from the eighteenth century, and many American ancestralhomelandseven those that retain established churches^have becomeour equal as places of religious freedom and tolerance. Our political andlinguistic motherland, the United Kingdom, still requires that "eachpupil in attendance at a [public] school shall on each school day takepart in an act of collective worship,""^ and many of the countries thathave sent millions of immigrants to the U.S. either require or allow

46 . Schempp, 374 U.S. 203, at 310.47 . The states were Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Kansas, Louisiana,Maine, Mississippi, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island,South Carolina, South Dakota and Tennessee. See Brief and Appendix for Attorney General ofMaryland, Murray v. Curlett (U.S. Nov. 30 , 1963) (No. 119).

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44 JOURNAL OF LAW & RELIGION [Vol. XXVreligious instruction in the public schools.'*' This is not to say that ourcountry with its unique history should reverse itself and follow itsancestral hom elands. That would be absurd. The point, rather, is thatwhile those homelands retain some vestigial indicia of the kinds ofreligious domination that lead to widespread dissent and revolt, a fewprayers in school have not prevented them from becoming civilized,tolerant, Westem democracies.

The coercive effects of school prayer is a more realistic concem inthe modem world. And as noted above, the Court's early school prayerdecisions that freed the nation's public school children from anoppressive, ritualistic Protestant indoctrination at the beginning of everyschool day was a favor to an entire nation.'" But jus t as the clarity of thelegal analysis in those decisions moved parallel with beneficial socialpolicy, so did the highly attenuated legal analysis in the later decisionsbring less favorable social outcom es. There is a huge differencebetween' telling religiously-oriented people that they cannot requiremandatory, Christian-centric prayer before a public school day andtelling them they cannot require a moment of silence or have a once-a-year invocation before a graduation ceremony. ("Voluntary" prayerbefore a football game lies somewhere between.) There are, of course,blind-faith citizens who consider any decision that "takes God out of ourschools" to be sacrilegious. But there is no reason to conclude thatreligiously-oriented citizens cannot be as discriminating as those withmore secular outlooks. If that is so, a decision that prohibits a momentof silence because a child might use it to pray, or a decision that bans thegraduation invocation because it is "coercive," becomes evidence thatthe less-discriminating group may be rightthat it truly is the intent ofthe Court to erase all traces of religious thinking from the public schoolsystem.

That has happened, and the toll these later cases have taken hashardly reduced "political divisiveness." Without doubt, Engle andSchempp set off a firestorm in the country, some of it from such non-49 . Se e the United States Department of State's Annual Report on Intemational ReligiousFreedom (2007), available at www.state.gov/g/drl/rls/irf/2007.50. Even that attempt to make all children "better" through the Bible, the Lord's Prayer, andadding "under God" to the daily Pledge failed more often than the Court suspected. I was raisedCatholic in a small Protestant-dominated town where we "did it all" every morning. At first I wasa bit confused about whether to say the extra words that someone added to the Lord's Prayer I

knew, but soon enough I worked that outI don't remember howand just went with the flow.And as far as 1 knew, so did the few other Catholics, Jehovah's Witnesses, Assembly of God kids,

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33] RELIGION, DEMOCRAC Y AND THE PUBLIC SCHOOLS 45fundamentalist sources as the Dean of the Union Theological Seminaryand Francis Cardinal Spellm an.'' The generated heat took political formas a variety of proposed amendments to the Constitution that wouldallow "voluntary" school prayer. Congress held hearings onvariousproposals in 1964, 1966, 1971 and four different years during the laterReagan administration.^^ In the end, nothing was ever passed, and onlythe 1971 version ever reached one fioor of Congress.^^This quarter-century battle may not have resulted in legislation, butit unleashed a new political force. The so-called Religious Right founda rallying point in supporting the rise of the Reagan administration andits promised support for the both the school prayer amendment and anewer cause, anti-abortion legislation.''* During that eight-year periodthe Court decided Wallace and Aguillard, and these decisions continuedto convince the Right that the Court was the enemy of any form ofreligiously inspired attempts to work with the public schools.^'Since the 1980s, the Religious Right has added gay rights toabortion and school prayer as itsprimary points of interest.'* It hasremained an important force in national politics, and is often given creditfor both of George W. Bush's presidential victories.'^ The developm entof a political movement is not a harm in its own right. Indeed, it is theessence of democracy. The irony, though, is that Supreme Courtdecisions strictly separating prayer and the public schools, in partbecause of their potential for dividing the country politically alongreligious lines, has played an important role in dividing the countrypolitically along religious lines. On the way, the movem ent formedcohorts of single-issue voters whose ballot box support becamedependent solely on a candidate's position on one, or a very few,religiously-based tests. As a result, more serious issues of public policywere fi-equently pushed to the background while elections turned oncontrived, or at least less important, public issues.'

51 . ROBERT S. ALLEY, SCHOOL PRAYER: THE COURT, THE CONGRESS, AND THE FIRSTAMENDMENT 118-20 (Prometheus Books 1994).52. Id at127-56 (1964), 157-68 (1966), 169-86 (1971) & 187-219 (Reagan years).53. Id at 169-80.54. W. at 220-33.55. W. at 187-214.56. Thomas W. Merrill, The Making ofthe Second Rehnquist Court: A Preliminary Analysis,47 ST. LOUIS U. L.J. 569, 580 (2003); Peter Applebome, Religious Right Intensifies Cam paign for

Bush, N.Y. TIMES, Oct. 31, 1992, at 1.57. Special Report: The Triumph of the Religious RightAmerican Values, ECONOMIST,Nov. 13, 2004, at 29.58. Keeping it local, one good exposition of this phenomenon is Thomas Frank's popular

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46 JOURNAL OF LAW & RELIGION [Vol. XXVThe growth of the Religious Right as both a religious and a

political force has also come primarily at the expense of the mainlineProtestant denominations that had traditionally treated Fundamentalistsas poor relations. Again, school prayer was the tipping point.^' Thenumbers of adherents of mainline and conservative denominations havereversed fairly rapidly, and the political clout has followed thenumbers. " The root causes for this major shift go well beyond schoolprayer, of course. On the raw political fron t, though, the changes markthe substitution of a less-compromising, sometimes intolerant politicalforce for one that has traditionally governed from the middle and heldfew issues on which it refused to seek common ground. Tone is animportant part of divisiveness, and many Americans seem to agree thatthe tone of today's political rhetoric is markedly harsher than it oncewas. The change in the Protestant landscape is by no means the solecause ofthat change, but it is undeniably a factor.A third significant, negative result of the school prayer decisionson American political and social life is their effect on the rise of homeschooling. Once the province of disenchanted 1960s liberals,*' the homeschool movement has become closely linked to a conservative antipathyto the Court's having "taken God out ofthe [public] schools."The numbers are striking. The National Center for EducationStatistics' (NCES) last survey of homeschooling w as conducted in 2007.It found 1.5 million students being homeschooled in the U.S., a seventy-four percent increase from 1999 and thirty-six percent since 2003.^^Other estimates of students now schooled at home run as high as 2.4

59.These Protestant erosscurrents collided with . . . the Engel decision. Denominational andNational Council [of Churches] leaders firmly supported the Court and so testified.Simultaneously, there was a strong grass roots resistance that found a voice in BillyGraham and Norman Vincent Peale. But uncompromising Protestantfundamentalism . . . would find more dependable leadership among a eadre of televisionpreachers who loathed accommodation w ith the mainstream Protestants.ALLEY, supra note 50, at 222.60. Conservative Churches Grew Fastest in 1990s, Report Says, N.Y . TIMES, Sept. 18, 2002 ,available at http://www .nytimes.com/2002/09/1 S/us/conservative-churches-grew-fastest-in-1990-s-report-says.html?scp=l&sq=conservative+churches+grew+fastest&st=nyt. The story reports ona decennial study, "Religious Congregations and Membership: 2000," considered by scholars asthe most comprehensive assessment of denominational populations and shifts. The 2000 Reportshowed an 18% increase in two principal conservative Protestant sects during the 1990s anddouble-digit diminutions in such mainline sects as Presbyterian and United Church of Christ.And, of course, many fundamentalist churches are non-denominational.

61 . Autumn Burke, Why Homeschooling is on the Rise, AB0UT.COM, http://homeschooling.

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33] RELIGION, DEMOCRACY AND THE PUBLIC SCHOOLS 47million. ^ In contrast, the estimated num ber for 1985 was 50,000.^''

So why is this happening? The survey reveals a number of causes,but one of the most significant is "to provide religious or m oralinstruction." to children. Approximately thirty-six percent of thosesurveyed gave this as their chief or sole reason for homeschooling in the2007 survey, and another twenty-one percent offered a more ambiguous"concem about the school environment" as their primary motivation.^^Less statistically-based evidence is clearer: "Homeschooling originsbegan in the 1960s with a counter-culture movement that soon fizzledout and was replaced in the 1970s after the Supreme Court upheld thedecision that removing school prayer was not unconstitutional."**Whatever the exact numbers, the loss of several hundred thousandchildren from the public schools each year apparently is attributable toparental views that schools are places hostile to people of faith. Thatjudgment may be crude or sophisticated depending on the information towhich the parents have access. But the view is there, and it acts as asubstantial impediment to the socializing role the public schools havehistorically played as, in the words of Justice Frankfurter, "the mostpowerful agency for promoting cohesion among a heterogeneousdemocratic people."*' More plainly, it means that every day thousandsof public school and homeschooled children of different or no religionslose the opportunity to leam mutual respect and tolerance for each other.It is a great loss for them, and for the future of their country.

IV. A LESS-TRAVELED ROAD : DEMOCRACY AND SCHOOL PRAYERIf my argument in the previous two Parts is correct, most of theCourt's school prayer decisions over the last quarter century are suspectboth as constitutional doctrine and instruments of social or political

policy. It also seems that the Court's interest in the topic is waning notcounting the Pledge case it ducked,*^ it has given us only one (veryweak) school prayer decision since 1992, two since 1987.*' Though itsearly decisions have, thankfully, done away forever with the most63. Amanda Geer , Home-Scho oling Special: Preach You r Children Well, NEW SCIENTIST,Nov. 9, 2006, available at http://r icharddawkins.net/article,297,Hoine-schooling-special-Preach-your-children-well,Araanda-GefterNewScientis tcom.64. Patricia M. Lines, Homeschoo ling: An Overview for Educational Policymakers (U.S .De p ' t of Ed uc , W orking Paper No. 4 , Jan . 2007) .65. Na tion al Ce nter for Ed uca tion Statist ics, THE CONDITION OF EDUCATION 14 (20 09) ,

available at http://nces.ed.gov/pubs2009/2009081.pdf.66. B UR KE, supra note 60.

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48 JOURNAL OF LAW & RELIGION [Vol. XXVegregious of the forced, daily religious activities, the remaininglandscape looks reasonably bleak. We have difficult public questionspending, including but not limited to the Pledge issue, "holiday"programs, moments of silence, graduation invocations, prayers atsporting events, and the ever-present "science" issues. But we have onlythe crude tools the Court has left us to deal with these weighty matters.It is a daunting set of tasks, whether those crafting solutions are a schoolboard, its attorneys, civil libertarians, parents, religious organizations, orfederal or state judges . It is always easy to guess that the answer to mostreligious activities in public schools is "no," but it is both difficult andconfounding to explain why.

Over the past decade, the author has had a ring-side seat to adifferent approach to one of these issues. While it is a faithftjl "red"state in Presidential elections,^" Kansas has generally been moderate onmost social issues. It came late to capital punishm ent, has always had areasonable abortion law, and has continuously offered decent support forpublic education. Its moderate-to-liberal two-term Dem ocraticGovernor was recently confirmed as President Obama's Secretary ofHealth and Human Services. Her place was taken by a moderate-to-liberal Lieutenant Governor who used to be the moderate-to-conservative Chair of the state Republican Party. For decades the Statewas run primarily by middle-of-the-road "Eisenhower" Republicanswith little taste for what have become known as "social issues."

So imagine Kansans' surprise in August of 1999 when wediscovered that our State Board of Education ("Board") had voted six-four to adopt statewide science testing standards for K-12 thateliminated all references to macro-evolution .'' It turns out that while themoderates and liberals in the State were paying attention to othermatters, anti-evolutionists had run and elected three members to theBoard, giving it a majority.'^ This was their coming-out party.In some ways, this tum of events should not have become a bigdeal. The Board has no authority to dictate either curricular choices oraccompanying textbooks at the district level.' Its only influence, whichit was exerting here, is to announce the standards it will use inadministering statewide assessment tests.''*

70 . Lyndon Johnson was the last Democrat to win Kansas's electoral votes.71 . Pam Belluck, Board for Kansas Deletes Evolution from Curriculum, N.Y. TIMES, Aug.12, 1999, at 1.72. In fact, one member supporting the changes was supposedly a "moderate" who decided

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33] RELIGION, DEMOCRAC Y AND THE PUBLIC SCHOOLS 49Yet by some stroke of bad luck, Kansas's venture into the

evolution/ID issue was discovered by the national media. The NewYork Times and NPR particularly found us intriguing, as did the latenight comedians. People for the American Way hurried to Lawrence,where they organized a televised, double-barreled program featuringnative Kansan Ed Asner as Bryan and James Cromwell as Darrow in are-creation of the showdown at the Scopes trial, followed by a paneldiscussion (which I moderated) consisting of two evolutionists, aCreation scientist, an Intelligent Design advocate and a legal historian.^'Suddenly and unhappily, we Kansans became the poster children forwhat the mainline press saw as Ignorance on Parade. Painful groansarose from all over the State, none louder than from (moderateRepublican) Governor Bill Graves: "This is a terrible, tragic,embarrassing solution to a problem that did not exist."^^There was some immediate thought of a lawsuit. Though it wasnever disclosed publicly, the Kansas City ACLU asked a major KansasCity firm to take a look at the possibility of bringing an EstablishmentClause action.^' But as no school district in the State had changed eitherits curriculum or its textbooks in response to the Board's amended"Standards," the decision was that there was not yet standing for such achallenge.In the meantime, Kansans who opposed the changes began thinkingabout the next Board election. Though few voters knew it previously,half of the ten-person Board seats came open every two years, and fourof the five seats up for contention in 2000 were occupied by anti-evolutionists ("AE").^^ So for the first time in history, the 2000everyday election conversations focused on not just the Presidential,congressional and local races, but the State Board of Education as ^

7 5 . Erwin Sera, Acting Out on Behalf of Evolution, LAWRENCE J.-WORLD, July 13, 2000, at1.7 6 . Kate Beem, New Plan Softens Evolution Standards, KAN. CITY STAR, Aug. 9, 1999, atA l . Scott Rothschild, Evolution hearings show scope of cultural divisions, LAWRENCE J.-WORLD, May 4, 2005 , available at http://www2.ljworld.com/new s/2005/ma y/04/evolution_hearings_show/.7 7 . The discussion took place between the ACLU and Stinson, Mag & Fizzell during thesumm er of 2000. I was Of Counsel to the firm at the time and would have been the lead attom ey.7 8 . There is no obvious group nomenclature for those supporting the amended Standards.Terms such as "religious right" or "social conservative" are far too broad, and "pro-intelligentDesig n" or "pro-Crea tionism" may or may not be accurate. The group would probably object to"anti-evolutionists" as well because of their alleged "support" for micro-evolution. But it seems

the fairest of several bad choices.79. Much of the following description of the back and forth of the decade-long battle over thestatewide testing standards co me s from .my own observa tions, notes, file, and (dec lining)

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50 JOURNAL OF LAW & RELIGION [Vol. XXVCandidates were recruited and underwritten. Local and regional newsstories were frequent, as were editorials. The hard science comm unityin the state organized to support a retum to evolution-based Standards.Voters informed themselves of who was running and what "side" theysupported. In the end, one AE candidate was re-elected, one did notseek re-election and her seat was taken by a moderate, and two AEsupporters were defeated by moderates in the August Republicanprimary. So while Bush v. Gore was still being adjudicated in theUnited States Supreme Court, the new seven-three moderate majority onthe Board moved quickly to replace the previous Standards with onesbased on objective scientific standards. Macro-evolution returned to theStandards, as did testing on evolutionary subjects.

And so it ended, or so the moderate voters thought. As quietly asthey had in the 1996 and 1998 elections, the AE supporters slipped backto the polls in August, 2002 to nominate two more Republicancandidates, both of whom won the general election that November. Andwhile the resultant five-five split on the Board produced nothing newover the next two years, the additional success of a third AE candidate inthe 2004 election had those favoring change again in control. This timethey were not dependent on a wavering moderate for their sixth vote,and the difference showed itself quickly.

Depending on one's point of view, the first six months of 2005were the acme or nadir of Kansas's experiment with democraticsolutions to possible First Amendment problems. Prior to the 2004election, the Board had created a twenty-five-member committee torevise the science standards, giving eight seats to AE supporters. InDecember, 2004 the majority of the committee recommendedtraditional, science-based criteria, but the eight AE supporters submitteda minority report calling for more limits on evolutionary standards. InJanuary the writing committee rejected all but one of the minority'srecommendations. There followed a series of public forums heldthroughout the State, offering ordinary Kansans the opportunity to givetwo-minute comments to the comm ittee. Nearly a thousand peopleattended, and more than two hundred gave comments that were fairlyevenly divided between pro- and anti-evolutionary views. Many of the"antis" proved somewhat of an embarrassment to the minority reportadvocates, however, as they emphasized a religious-based perspectivesourees for additional information inelude the arehives of the Topeka Capital, the Kansas City

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33] RELIGION, DEMO CRACY AND THE PUBLIC SCHOOLS 51on the issues that AE supporters had been contending were all aboutscience. The eventual upshot was a propo sal from A E . supporters,adopted by the new Board, that there would be "hearings focused on theareas of disagreement in the majority and minority positions of theScience W riting Com mittee."^" A three-m em ber, all AE suppo rtercommittee was appointed to hold a quasi-legal set of hearings, offeringeach side three days to present their views.

But the Kansas hard science community, which had been well-organized since 1999, reise d to play by the B oa rd 's rules. Specifically,on March 8, the Kansas Citizens for Science Resolution Regarding theState Board Science Hearing Committee resolved, in part, that:The specific proposals in the minority report have been rejected bythe writing com mittee and by the science comm unity at large. Thescience community should not put itself in the position ofparticipating in a rigged hearing where non-scientists will appearto sit in judg ment and fmd science lacking. Science should notgive the anti-evolution members of the board the veneer ofrespectability when they take their predictable action.^'

Thus was a boycott bom.The committee held its hearings on May 5-12 in Topeka, the statecapital. Cou nsel for the AE perspe ctive the same Kan sas City lawfirm partner who had represented the ID position in the People of theAmerican Way panel back in 2000offered twenty-four witnesses,including members of the Intelligent Design Network and the DiscoveryInstitute to suppo rt their position.^^ In kee ping w ith the resolution , themajority called no witnesses, but a high-profile Topeka attorney didcross-examine the minority 's witnesses, and eventually gave a two-hourclosing argument. The national press was back , of cou rse, and gave itall a full airing.^^ Ab out the sam e tim e, the Ka nsa s Legislatu re de cide dthat it needed to enter the issue, though its proposed "objectivity inscience educ ation" resolution died quietly in com mittee. In June , theBoard committee approved proposed standards containing language

80. Jack Krebs, Kansas Evolutioti Hearings: Summary of the Background to the Kansas"Science Hearings" at May, 2005, July 1, 2005, www.talkorigins.org/faqs/Kansas/evolutionhearings.html.81. Kansas Citizens for Science, Resolution C oncerning The "Science Hearings," Mar. 8,2005, www.kcfs.org/standards05/KCFS.resolution.html.82. The Talk Origins Archive: Exploring the Creation/Evolution Controversy, Summary ofthe Background to the Kansas Science Hearings of May, 2005, July 1, 2005,http://talkorigins.org/faqs/kansas/evolutionhearings.html.

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52 JOURNAL OF LAW & RELIGION [Vol. XXVsought by the AE advocates, and in Nov emb er, the full Board concurred.This version of the Board's official Standards expected "students tostudy doubts about modem Darwinian theory... ."^' 'The last act in the drama was both predictable and relatively quiet.In March 2006, an AE member announced she would not seek re-election, and that summer a moderate won the Republican primary forher seat. Ano ther AE memb er was defeated head -to-head by a mod eratein the same primary, and both moderates won election in November.The defeated AE member let her guard down in the bitterness of herdefeat, noting that "[i]t's a shame, and I feel bad for them when theyface God on Judgment Day," adding that the new Standards wouldpermit "go vem m ent schools [to] teach children that we are no more thanchao tic, random mutants."^^ On February 13, 200 7 the Board passed itsfourth set of Standards in eight years, which "reflect mainstreamscientific view s of evolution."^* Un like after the 200 0 election,however, the 2008 elections brought no change in the moderatemajority, and the current composition of the Board would seem to givethem control for at least through the 2010 election.^^V. REFLECTIONS ON THE KANSAS EXPERIENCE AND THE ISSUE O F W H O

DECIDES

The obvious question emerging from the Kansas experience iswhether we are better off for having resolved the legal problem as wedid through the dem ocratic process . The first answer, of cou rse, is thatbecause of the nature of the problem, there was no choiceassumingthe lawyers (and I was one) were correct that there was no standing tochallenge the School Board until something happened at the local levelin response to the changes in the Standards, the judicial option simplywa s not available. W hich is a lesson in its own right. Som e issues mayhave to be decided dem ocratically.But the more intriguing issue, of course, is whether the Kansassolution had merits beyond its necessity. M ost Kan sans, dismayed by

84. John Hanna, Education Board to Revisit Debate over Evolution, LAWRENCE J.-WORLD,Feb. 11, 2007, at 1, http:/www .washingtonpost.co:n/wp-dyn/content/article/2005/ll/08/AR 2005110801211.html.85 . Jim Brown, Official Cries Foul as Liberals Take Over Kansas Board, Aug. 14, 2006,http://www.gopusa.com/news/2006/august/0814_kansaseducationp.shtml.86. Associated Press, Kansas Board Boosts Evolution Education: Guidelines Backed byConserva tives Skeptical of Darwin Repealed, Feb. 14, 2007, http://www .msnbcxo m/id/l 7132925.

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33] RELIGION, DEMOCRACY AN D THE PUBLIC SCHOOLS 53the trauma of persistent, negative attention from the national press,would undoubtedly say the game has not been worth the candle. Thatconclusion would encompass adherents of both sides, as AE supporterswere often portrayed as atavistic buffoons and evolution supportersoften found the continuing exercise annoying, tedious and disheartening.Indeed, there was enough negative feeling generated over the eight- ornine-year story that it is difficult to view what occurred outside thatlight.Yet, even in these worst of circumstances there were enoughhopeful and positive outcomes to encourage a more thoughtftil analysis.On the prevailing side, the Kansas "hard science" community organizeditself quickly, and communicated frequently and effectively with thevoters. Because of that, a much higher percentage of Kansas voterstoday understand why that community is so dedicated to evolution as abaseline for several areas of scientific learning. Moderates from bothmajor parties, including both a Republican and Democrat Governor, areunited in the political effort to win back control on the Board forsupporters of evolution. Voters and contributors discovered the Boardand took time to inform themselves of candidates' positions beforegoing to the polls. Ultimately, evolution supporters leamed that theyneeded to be as persistent as AE supporters if they were to keep controlof the Board after they had won it back. And, in the end, evolutionsupporters proved that if all voters had their eyes on the ball, there was astrong majority supporting the teaching of evolution model in what isusually seen as a conservative state.

The positives were no doubt fewer for the AE supporters, but theywere there whether recognized or not. First and most important, the AEproponents had a chance to tell their story and put their position to thevoters. And, with some positive resultsw hile their 1998 and 2002victories were probably of the "stealth" variety, the AE community hadindividual candidates prevail in 2000, 2004 and 2006 while the wholeworld was watching. Occasional national characterizationsnotwithstanding, they also had the opportunity to explain their positionsto their fellow Kansans in a relatively objective atmosphere. Presscoverage within the state was generally respectful and balanced. Whilesome AE fanatics hurt their own cause with "young earth" and otherBiblically-based positions, there were articulate AE supporters whoearned a grudging respect from their opponents for an obvious effort toblend science and faith. And at the very least, AEers lost solely becausea majority of their neighbors did not agree with their positions, rather

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54 JOURNAL OF LAW & RELIGION [Vol. XXVunconstitutional. A decade from the beginning of their crusade, manyKansans in the AE camp have to feel they had a fair shot.Tho se are the positives for the each "side s." But there are non -partisan benefits as well. The mo st impo rtant for this article is thatdespite the awful circumstances, Kansas seems to stand for theproposition that the "political divisiveness" such a hot-button issuenaturally creates for a political body is more favorably resolved byallowing the matter to play out through the democratic process than bybombing one side with a quick and often perplexing judicial opinion.First, of course, such opinions lead the AE leadership and membershipto draw the kind of conclusions about the courts, the legal system andthe public schools that simply breed more divisivene ss. Also , theopinions, specific as they must be, encourage those seeking change tomodify the request and try again. After a judic ial decision, evolutionmorphs to Creation Science which morphs to ID. Bans morph tostickers which morph to pre-course "statem ents." And so it goes. Atleast in Kansas, those promoting the A E agenda know that 1) their ideashave been rejected at the ballot box by their neighbors, and 2) the sameresult is likely regardless of how the "issue " is shaped. Finality isunquestionably hard to find in these controversies, but the democraticprocess offers at least the possibility of finality through either retreat orcompromise.

The political divisiveness lesson is an important one that can bedrawn from the Kansas experience. Are there others? It depend s. Thisarticle attempts to demonstrate that the United States Supreme Court hasstruggled to find a rational analysis for adjudicating school prayerissues, and that those struggles have spawned unfortunate socialconse que nces. It also identified at least four different kinds of thoseissues: 1) old fashioned frequent (daily), often sectarian prayer;^^ 2)moments of silence; 3) science v. religion; and 4) occasional, usuallynon -sectarian prayer at gradu ations, sporting even ts, etc. The paper alsosuggested that controversies regarding recurring prayer and moments ofsilence are typically ready for judicial resolution the moment the issue israised. There is little need for a record in those cases, and, m oreimportant, there are fairly obvious answers to whether the practicesviolate the Establishm ent Clause (yes and no). It wo uld make littlesense to have democratic battles over whether to allow daily recitation

88 . Whether this classification includes the Pledge of Allegiance will determine the outcome

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33] RELIGION, DEMOC RACY AND THE PUBLIC SCHOOLS 55of the Lord's Prayer, or whether an instructor could require a dailymoment of silence. The answers should be constitutionally clear.But such is not the case with either science versus religion or"occasional prayer" controversies. Some more recent District Courtcases deciding curriculum issues have suffered from the samejurisprudential problems as Epperson and Aguillard because of theabsence of a sound record that might reveal either the purpose or effectofthe alleged offending act.^' And the now-famous Dover PennsylvaniaIntelligent D esign case refiects the difficulty of creating such a recordTom scratch Judge Jones ' opinion is sixty pages long. So at the veryleast, one good reason to permit some democratic discussion of this kindof issue is to develop a reasonable predicate for adjudication. Moreimportant, though, both the Kansas and the Dover experiences suggestthat the voters in most places will eventually "get it right," with all theattendant benefits of deciding important social and political issues byopen process and free debate.'' No longer would it be the courts whotake, or keep, "God out of our schools." It would be the voters after afull and fair outing of the arguments pro and con. And for places wherethe majority would persistently substitute what appears to be religiousbelief for hard science, a far fuller record would be available when theissue finally came to the courthouse.A similar set of benefits would seem applicable to the "occasionalprayer" issues. Those vary so much in nature and frequency, it is moredifficult to generalize. Surely the kind of high school graduationinvocation at issue in Lee would be an appropriate topic for democraticresolution at the local level. Issues of whether, when, who, or how long,these exercises can occur, whether standing or sitting is coercive, etc.cry out for deliberation and compromise. Less solemn occasions such as"holiday programs" or sporting events present more fundamentalproblems. But even there, local boards of good will and reasonablecounsel will best understand their own culture, diversity, history andsensitivities. They will, consequently, formulate a far better solution fortheir community than an individual federal judge with a limited recordand a single "incident" could possibly create.And as the controversies in both Kansas and Dover, Pa.demonstrate, even if a rogue group takes the issue to a narrow, sectarian

89. These are chronicled in an excellent new article by Paul Carrington, Freeedom to Err:The Idea of Natural Selection in Politics, Sc hools a nd Cou rts, 17 WM. & MARY BILL RTS. J 131 -35 (2008 ) .90. A:;7zw;7/e/-, 400 F.Supp.2d 707.

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56 JOURNAL OF LAW & RELIGION [Vol. XXVextreme, there will quite likely be voters in the community to set thingsright again. Failing that, the court will have a greatly improved basis onwhich to render an opinion that fair-minded citizens will bothunderstand and accept.

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