A federal district court judge in Alabama, saying that the U.S. Supreme Court “erred in its reading of history” when it struck down prayer in public schools 21 years ago, has ruled that the state’s school-prayer laws are legal.
In an opinion issued Jan. 14, Judge W. Brevard Hand said the Establishment Clause of the U.S. Constitution was intended by the framers to prohibit only the federal government, and not the states, from establishing religion.
The ruling dismisses a suit brought by a Mobile attorney named Ishmael Jaffree on behalf of his two sons and daughter against three Mobile teachers, their principals, and the local school board for allowing school prayer and other religious activities.
Alabama has a law allowing a “period of silence” for meditation or voluntary prayer in its public schools.
The suit also a challenged another Alabama law, passed during the administration of former Gov. Forrest H. (Fob) James Jr., which contains a “suggested prayer” written by Mr. James’s son, Fob James III.
Judge Hand dismissed both challenges.
Mr. Jaffree said of the ruling: “The judge in rendering this decision acted as a loose cannon that shot in our direction; he ruled basically that the federal courts do not have jurisdiction to hear any Bill of Rights claims against a state.”
The decision will be challenged in the 11th Circuit Court of Appeals in Atlanta.
Framers’ Intent
The intent of the framers of the Constitution, Judge Hand said, was to allow the states the freedom to establish religion within their own boundaries.
Judge Hand said that the Supreme Court’s guiding principle in cases involving school prayer and religion in schools--that such activities breach “the constitutional wall of separation between church and state"--is historically incorrect.
The judge also said: "... the framers of the First Amendment never intended the Establishment Clause to erect an absolute wall of separation between the federal gov-ernment and religion.” The intent, he said, was only to prohibit the government from establishing a national religion like the Church of England.
Judge Hand also said “the historical record” presented in the case demonstrates that Congress did not intend the 14th Amendment, ratified in 1868, to extend the Bill of Rights to the states.
Citing legislative debate surrounding the proposed amendment, “popular understanding” at the time, state legislative debates during the ratification process, and contemporary Supreme Court decisions, Judge Hand said the adopters of the 14th Amendment never intended to “incorporate the Establishment Clause of the First Amendment against the states.”
The judge drew heavily in his opinion on books by Robert L. Cord (Separation of Church and State: Historical Fact and Current Fiction), and James McClellan (Joseph Soty and the American Reforms).
Judge Hand concluded: “Perhaps this opinion will be no more than a voice crying in the wilderness and this attempt to right that which this Court is persuaded is a misreading of history will come to nothing more than blowing in the hurricane ...”
Thomas S. Brandon Jr., general counsel for the Christian Legal Society in Oak Park, Ill., said of the opinion: “These arguments are ill-advised at this point. They are probably correct as far as the interpretation of original intent, but that’s almost irrelevant at this point, because the court has not and will not apply that.”
Lee Boothby, general counsel for Americans United for Separation for Church and State, said the arguments used by Judge Hand are not new and run counter to concepts “fixed in cement as far as the Supreme Court is concerned.”
Mr. Boothby said the Supreme Court first used the 14th Amendment to apply the First Amendment to states in a 1943 case, Murdock v. Commonwealth of Pennsylvania. The Court then applied the Establishment Clause to states in a 1947 case, Everson v. Board of Education, a decision in which the Court first spoke of “a wall between church and state” that “must be kept high and impregnable.”
