Constitutional Separation of Church and State: The Quest for a Coherent Position

This clause of the First Amendment, recently applied by the Supreme Court to invalidate certain religious practices in the public schools, has called down a new storm over the Supreme Court. The storm has not consisted merely of the political bombast of predictable critics. Rather, it has included Dean Griswold of the Harvard Law School who perceived in the first school prayer case an unyielding and unwarranted absolutism in the position of the Court. It includes also highly regarded church figures, such as Episcopal Bishop Pike, who has called for a constitutional amendment to alter the Court's mandates. It has percolated within the law schools, and within the Court itself where lengthy separate opinions were composed to clarify what has and what has not been done. Yet, even within the Court, as within the larger academic and public forums, wide disagreement remains as to the applied meaning of the opaque language of the religion clause.This article cannot quiet the storm over the Supreme Court, but it can make clear which parts of the storm are entitled to be taken seriously and which are merely bluster. Beyond this, there are more significant purposes to be served. The first of these is to make sense of existing cases in terms of some coherent doctrine, responsive to the First Amendment and possessing substantial predictive value: to describe the standard of church-state separation which the Supreme Court applies in fact. The second is to demonstrate that a number of open questions remain to be answered before a more precise boundary of church-state separation can be known.