Abington School District v. Schempp

As in Engel v. Vitale, the vote was 8-1 against a state law authorizing public school sponsorship of activities resembling prayer. All but one of the justices clearly endorsed the First Amendment's opening passage: "Congress shall make no law respecting an establishment of religion . . . " All agreed that the Fourteenth Amendment's Due Process Clause made this prohibition binding on the states. This time, however, the opinion of the Court was written not by the First Amendment absolutist Black, who had written for the Court in Engel, but by the more moderate Clark. The Bible readings at issue here were just as unconstitutional as the state-sponsored prayer being questioned in the earlier case; the fact that the state had actually composed the nondenominational prayer in Engel made no difference. Lest there be any confusion about what constituted acceptable legislation that touched on religion, Clark spelled out a test for constitutionality:

The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.

Clark could hardly have been clearer. If added reinforcement were needed to reassure the public that the Court was not opposed to religion, the Catholic Justice Brennan wrote a 74-page concurring opinion reviewing the history of the First Amendment and the means by which the founding fathers had arrived at the Establishment Clause. And the Jewish Justice Goldberg wrote a second concurring endorsement of the opinion of the Court.

The lone dissenter, as in Engel, was Justice Stewart, who once again indicated that he found the Court's holding to be anti-religious. He felt the proper emphasis in deciding such cases should be on the First Amendment's Free Exercise Clause, which adds that "Congress shall make no law . . . prohibiting the free exercise [of religion]." Although the Schempp Court plainly thought they had put the issue of school prayer to rest, it raged on. The American public and politicians remained keenly interested in religion and the public school system. Proposals for a constitutional amendment permitting school prayer continued to surface. Toward the end of the twentieth century, the Supreme Court grew more conservative in orientation, and more justices began to share Stewart's view of religion in the public schools.