Santa Fe independent school district v. Doe: Establishment clause chaos on the high school gridiron

St. John's Law Review, Winter 2001 by Chanice, Lawrence J

As stated above, discerning the Framers' intent with regard to school prayer is an arduous task because the nation did not have an extensive public education system at the creation of the Establishment Clause.77 In addition to the facts that the Bill of Rights was not intended to apply to the states, and that the states had established religions well after the ratification of the Constitution, other bits of history indicate that the Framers would have approved of such a practice.78 First, some state constitutions intertwined education with religion.79 Second, the language of the Northwest Ordinance of 1787 spoke of religion and education in the same context.80 The ordinance also set aside federal land in those territories to be used for church-sponsored schools.81 Finally, the states may not have ratified the First Amendment had they known that there would be national control over their schools.82

Earlier Supreme Court cases declared that the Framers intended the Establishment Clause to construct a "wall of

separation between church and state."83 This often quoted phrase can be attributed to the words of Thomas Jefferson in a letter commenting upon the Establishment Clause.84 When Jefferson spoke of this wall, it appears that he was referring to a wall between the church and the federal government, not between the church and the states, as evidenced by his second inaugural address.85 Furthermore, this letter cannot be afforded too much weight since it was written a significant amount of time after the ratification of the First Amendment.86 In the words of Chief Justice Rehnquist, "unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor. . . ."87

D. Santa Fe Independent School District's Disregard of Establishment Clause History

Unfortunately, Santa Fe Indep. Sch. Dist. did not address the events leading to the creation of the Establishment Clause, which exhibited an understanding that the Establishment

Clause applied only to the actions of Congress.88 The majority, perhaps, was just adhering to the precedent set by prior courts including the incorporation doctrine, which applied the First Amendment to conflicts between individuals and the states.89 How did the Court stray away from this historical framework?

The next part of this Comment endeavors to shed some light on this matter and show that the Court's decision in Santa Fe Indep. Sch. Dist. moves the Establishment Clause analysis further away from both the historical understanding of the Establishment Clause and existing precedent.

II. THE INCONGRUENCE BETWEEN PUBLIC SETTING PRAYER PRECEDENT AND SANTA FE INDEPENDENT SCHOOL DISTRICT

A. Past Controversies Involving Prayer in Public Settings

The Supreme Court has failed to articulate one clear test for general Establishment Clause analysis,90 let alone a viable mode of analysis for prayer in public setting cases. As a result, Establishment clause jurisprudence has been described as " `chaotic,' `doctrinal gridlock,' a `legal quagmire,' contradictory and unprincipled, `ad hoc,"intuitive,' and a `maze.' "91 Therefore, it seems as if the best approach is to analyze the Santa Fe Indep. Sch. Dist. decision in light of other cases involving prayer in public settings.