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Mark Storslee | History and the School Prayer Cases
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In this episode we speak with Dr. Mark Storslee about his work on History and the school prayer cases. Mark Storslee is an Associate Professor of Law and McDonald Distinguished Fellow at Emory Law School. He holds many degrees, including a JD from Stanford Law School and a PhD in Religious Studies from the University of Virginia. Storslee’s article, History and the School Prayer Cases was recently published in the Virginia Law Review and examines the Supreme Court’s rulings that prohibit state-sponsored prayer in public schools under the Establishment Clause, despite opt-outs for dissenters. In this episode, Whittney Barth and John Bernau join Mark to dive deeper into the history of these cases and talk about their implications for today's broader debates about government-sponsored prayer.
https://virginialawreview.org/articles/history-and-the-school-prayer-cases/
https://law.emory.edu/faculty/faculty-profiles/storslee-profile.html
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Transcript
Introduction to the Podcast and Guests
00:00:11
Speaker
Hello, and welcome to the Interactions podcast. For those that are new here, Interactions is a podcast produced by the Center for the Study of Law and Religion at Emory University. Here, we talk about all things law and religion and how they interact in the world around us. My name is Chelsea. And I'm Urvi. We are students on the digital scholarship team here at the Center.
00:00:30
Speaker
You are currently listening to the fourth and final episode of our latest interaction season on recent works in law and religion. In this episode, we brought in Dr. Mark Storsley to talk about his work on history and the school prayer cases. Mark Storsley is an associate professor of law and McDonald Distinguished Fellow at Emory Law School. He holds many degrees, including a JD from Stanford Law School and a PhD in religious studies from the University of Virginia.
Discussion on School Prayer and Legal Implications
00:00:56
Speaker
Storsley's article, History in the School Prayer Cases, was recently published in the Virginia Law Review and examines the Supreme Court's ruling that prohibits state-sponsored prayer in public schools under the Establishment Clause, despite opt-outs for dissenters. In this episode, Whitney Barth and John Bernal join Mark to dive deeper into the history of these cases and talk about their implications for today's broader debates about government-sponsored prayer. Thank you for joining us on this episode of the Interactions Podcast.
00:01:29
Speaker
Good morning. I'm Whitney Barth. I'm the executive director of the Center for the Study of Law and Religion at Emory and Charlotte McDaniel Scholar. Our center explores the intersections of law and religion through research and scholarship, teaching and training, and public programs. And I'm joined this morning by my colleague John Bernal.
00:01:44
Speaker
Hello, my name is John Bernah. I'm a sociologist working at the Center for the Study of Law and Religion at Emory University and the Director of Digital Scholarship. Today we're speaking with Professor Mark Storsley. Mark is the Associate Professor of Law and McDonald Distinguished Professor at Emory Law School. Mark, welcome to the podcast. Hey, thanks so much for having me. Great to be with you all.
00:02:07
Speaker
Your latest article um is forthcoming in the Virginia Law Review, and it's about the history and the school prayer cases. And to start, I wonder if you could tell us what are the school prayer cases? Sure. So the school prayer cases are two ah pretty well-known Supreme Court cases, both decided in the early 1960s, in which the Supreme Court held that the Establishment Clause of the First Amendment ah prohibits government-led prayer in public schools. And that's true even if the government um exempts or lets students be excused who don't want to participate.
00:02:45
Speaker
Great. So in your paper, you explained some recent developments at the Supreme Court that have some people wondering whether the school prayer cases, if they were decided today, and whether they would come out the same way. um Could you tell us a little bit more about those developments at the court? Sure, happy to. So when the school prayer cases were decided, as I mentioned, you know, in the early 1960s,
00:03:05
Speaker
ah The Supreme Court had a much different approach to constitutional law generally ah and to the Establishment Clause in particular than it does today. The court's early approach, I'd say, if you kind of had to characterize it in a single sentence, was really focused on secularism, the idea that the government speech should be secular, that government institutions should be secular, and so on.
00:03:28
Speaker
um And so the school prayer cases originally really decided on that basis, that religion has no place in public life generally and in public schools in particular.
Historical Context and Evolution of Public Prayer
00:03:39
Speaker
um Since then, things have gotten more complicated, I would say. um The main complications are twofold. One is that the court really had to nuance that view.
00:03:49
Speaker
you know Even though official public school prayer um you know has been consistently something that the Supreme Court has rejected as being constitutional, so various forms of prayer led by students, say, you know in after-school clubs and stuff in in public schools, this court has acknowledged that those are protected under the Free Speech Clause. um The other thing that's really changed, I think, is the court's approach to thinking about the Establishment Clause. And there, the court has really shifted from kind of generalized principles about secularism or separation of church and state to an approach that's more focused on history. you know How would the founders have understood what an establishment of religion is? um How does this current problem kind of relate to that original understanding and kind of the practices surrounding it?
00:04:37
Speaker
so So if the court were to reanalyze the issues at the heart of these school prayer cases, you argue that it's not certain that it would come out a different way, even under the court's recent you know historical practices and understandings approach. Why is that?
00:04:53
Speaker
Sure. Well, I mean, I think the the the main reason why it raises questions for people is that when the school prayer cases were decided originally, um as I said, the court was just asking very different questions. um you know And obviously, certain forms of public prayer have been very common in America since the founding, say, you know, prayers before sessions of Congress. The very first Congress began its sessions with prayers. um You can see prayers in other areas of kind of early American public life.
00:05:23
Speaker
So I think people wondered well if we care if history is what the court really cares about now um And we had a lot of public prayer at the founding um You know what about school prayer then is that now permissible?
00:05:39
Speaker
And so can you tell us a little bit more about why you think that it's not necessarily a given that it would come out. um Oh yeah. Yeah. So that's the interesting thing about this is the court has said we want to look at history and historical practices and understandings um to think about what the Constitution means.
00:05:55
Speaker
um But it might surprise people to know that the history is actually pretty complicated. And there's more there, I think, than people thought, especially as it relates to topics ah like school prayer or other kinds of sort of compulsory prayer led by the government.
00:06:12
Speaker
um And basically the story there is, if you look back to founding-era history, one of the main things that characterized religious establishments, right, that made the English, original English established church what it was, um you know, established churches in the colonies like Virginia, what they were, ah was about requiring people to attend worship in the established church. You know, you must attend church on Sundays ah in the state's favorite church or face fines or jail time or other kinds of things like this. um So you might think right there there's a relationship between kind of some early founding our history and some modern questions that we have about when and if the government can actually require people um to engage in prayer. Is there a way in which taking this historical kind of founders approach might actually affirm the original ruling in the school prayer case?
00:07:03
Speaker
Yeah, I think unexpectedly, yes. um And it has to do with kind of some additional details about how these compulsory church attendance laws worked at the founding. The real puzzle with the school prayer cases has always been this puzzle. Why is it unconstitutional for the government um to basically require students to participate in public school prayer if the government exempts students who don't want to participate?
00:07:29
Speaker
Right? And to just take a kind of side example, think about the Pledge of Allegiance. Many, many public schools in the United States require students to say the Pledge of Allegiance, um but the court held that there's a free speech right to opt out of saying the pledge if you don't want to, if you don't believe it. So I think the puzzle of the school prayer cases is, why are they different? Why isn't it just you have a right to opt out of saying them, but the government has no right to actually you know, create a regime where the default is that kids say prayer in school. um And to answer that puzzle, it turns out history can help us quite a bit, ah because one of the interesting things about these original church attendance laws is they all contained exemptions of different kinds for dissenters, um for different Protestants who didn't want to worship in this particular kind of Protestant Christian church,
00:08:20
Speaker
Some of them even much wider exemptions basically for anybody who according to their conscience couldn't worship at kind of the locally established church. um The law said you didn't have to go and yet the founders still kind of across the board rejected these laws as impermissible as a kind of establishment.
00:08:38
Speaker
um So we actually have right there a pretty close analogy to kind of the problem that we want to know the answer to in school prayer um and thinking about that and why the founders thought that might shed some light on some of these modern questions that we have.
00:08:53
Speaker
That's really interesting. And you've been you've been highlighting these compulsory religious observance laws during the founding era. And I'm wondering if can you give us some some kind of let's let's go a little bit deeper. Can you give us some examples of somehow what some of these have looked like and in different states? Yes. So as you may know, um religious establishments in early America differ depending on which kind of part of America and which of the colonies you were in. in a colony like Virginia that had very close ties to England, had very close ties to the established church in England, it basically worked the same way as it did in England. Everybody was required in the colony to go to the established Anglican Church, the Church of England, ah in the colony, or be fined um for not attending. And as I mentioned, later on, as the 18th century progressed,
00:09:39
Speaker
There were exemptions. There were exemptions for other kinds of Protestants who didn't want to go to the Church of England but wanted to go to their own church. The law still said, hey, you don't have to go to the Church of England as long as you go to another state-approved church. um In other colonies like New England, the laws worked a little bit differently, but sort of the same basic framework. In Massachusetts, they didn't have an established Church of England. Instead, what they had were mini establishments, town by town. The town would vote.
00:10:08
Speaker
what the kind of official town church was going to be, and that became the kind of localized establishment. ah But really the same pattern there. Once we had an established local church, there were laws requiring you to attend worship at that local church. Later on, more exemptions, exemptions for people who wanted to attend different Christian churches, and in some places like Massachusetts, eventually exemptions for anybody who, as a matter of conscience, couldn't attend the kind of local town church. So different models, but kind of that same basic pattern across the colonies really interesting
00:10:44
Speaker
We've been talking about worship attendance and how those laws have kind of evolved. I'm kind of interested in how the compulsory prayer and devotional Bible readings that were common at the time fell by the wayside and you you talked about these different state models evolving. Can you just tell us a bit more about the evolution of these different models and how they either converged or went separate ways? Yes, so this is the most interesting part of the story. I mentioned earlier to Whitney that we kind of had different models of religious establishment in different colonies in the in the United States um and these compulsory church attendance laws that grew kind of more permissive over time, right? More exemptions for people who didn't want to participate. But you might wonder, well, what's the problem?
00:11:31
Speaker
with having a law requiring you to attend church, say, if you can attend whatever church you want to, or even in places like Massachusetts, if you didn't even have to attend a church at all under
Religious Diversity and Public Schooling
00:11:43
Speaker
the law. um Why would people object to a regime like that? Well, the Founders did object to a regime like that, and it had to do with kind of some core convictions that they had about the limits of government power.
00:11:55
Speaker
you know The way that they saw it, the right that people had to judge for themselves in matters of religion was an inalienable right. It was something that each of us possessed and something that couldn't be delegated to the government. And because of that, they thought that even the presumed power on the part of the government To think that the government had authority to tell you that you had to go to church, even if it gave you tons of choice over where you could go, was impermissible. The government just didn't have that power in the first place. We the people never gave the government that power.
00:12:29
Speaker
um So really that kind of core, I would say really radical revolutionary insight, there had been nothing like that in the world before, not in England, not in early America, was really at the heart of it and really created a sort of mini revolution, ah ending all these church attendance laws in many places in the United States.
00:12:50
Speaker
In the article, you also explore the development of public schools in the US and the somewhat paradoxical reality that as compulsory worship attendance laws fell by the wayside, um compulsory prayer and devotional Bible readings were so common for a time um in in public schools. And how did how and why did that come to be?
00:13:07
Speaker
Yes. So this is another very interesting part of the historical story. And I hope we circle all the way back to thinking about the implications for the school prayer cases later. But right now, just follow the story. So we have the kind of end of compulsory church attendance laws in the early to mid 19th century in America dying out.
00:13:25
Speaker
At the same time, we have a kind of revolution in public schooling in America. um Basically, at the founding, most public schooling was private. I mean, we didn't have public schools, in other words. We had local neighborhoods that organized schools in their neighborhood and sometimes sought limited government funds for that. We had church schools. We had some kind of what we would just now call private schools, what they called subscription schools. um So that was the universe of really public education at the founding.
00:13:55
Speaker
But in the 19th century, people started to move towards, you know, more government roll run, government kind of organized ah public schools. um So with that movement, there were a lot of say in New York City, for instance, ah the New York City School Association was a private association that then was basically taken over by the New York City, ah you know, Board of Education and became the New York City public schools. So a lot of that happening around the country in the 19th century. And that creates this interesting dynamic.
00:14:25
Speaker
Many of those schools, you know formerly what we would consider to be private, had prayer and Bible reading in the schools. um you know They're just organized by neighborhoods, organized by families, and so on. When those schools became public, they still kept prayer and Bible reading in those schools. um So there was kind of you know just a gradual assimilation into government entities, still with prayer and Bible reading. um And now add let me just add briefly one more complexity.
00:14:54
Speaker
As the 19th century went on, um that became more and more contentious. And the reason why is because early in the founding in America and in the period after, it was almost exclusively made up of Protestant Christians. Some Jewish minorities in various parts of the colonies, but that was pretty much it. A few Roman Catholics.
00:15:16
Speaker
But in the 19th century, a huge wave of ah Catholic immigration comes to the United States. And some of the differences between how Protestants and Catholics pray, how Protestants and Catholics read the Bible, um really come to light and come to light in a really kind of explosive way in these newly formed public schools.
00:15:37
Speaker
So we've covered a lot of historical ground. And just to kind of review, so we had the initial schools um as private or subscription-based. Their religious affiliation wasn't necessarily a problem because they were private. And as those schools became public in the 1800s, those religious practices became more problematic because now there's the Establishment Clause tension.
00:16:02
Speaker
I'm interested in that last piece that you said, which is that the actual religious diversity was also kind of an explosive impetus for that kind of reevaluation of of schools and and religion and government. and Yes, yes. Well, let me say two things in response to that. First, it's important to remember an additional kind of complication here that we haven't discussed so far.
00:16:24
Speaker
At this point, the Establishment Clause did not apply to the states. The Supreme Court held that in the 20th century, but at that time, the Establishment Clause ah controlled the federal government and what it could do, but not the states. So that's one complication. The additional thing that you mentioned though ah is about this dynamic between Protestants and Catholics. um As the public schools are filled with more and more Protestant kids and Catholic kids, they start noticing that There's objections to the way that prayers are done, the ways that Bible readings are done. Let me just give you a few examples. So for many Protestants, the kind of core conviction is we don't need additional commentary from church authorities or other people to read the Bible. Every Protestant can read the Bible for themselves. right But for many Catholics, and especially Catholics in the 19th century,
00:17:14
Speaker
That was not what they thought. um They used what's called the Douay Bible, which actually had commentary from church officials um in the margins of the text, right? So right away we have a controversy between whose Bible we're going to read and sort of what that's going to look like.
00:17:30
Speaker
Let me give you another example. you know A famous case in Massachusetts ah involved requiring a Catholic student to recite the Ten Commandments. ah We might think today, like, all Christians believe the Ten Commandments, that's common ground. But actually, no, it isn't, ah because Catholics and Protestants had, and in some so cases still have, different versions of the Ten Commandments. The Protestant version phrases things like, you know, no worshiping of graven images.
00:17:59
Speaker
And for many Catholics, that was objectionable as a translation. It was basically a Protestant attack on some Catholic practices involving, you know, veneration of saints and so forth. um So we had these kind of rifts and no one noticed those at the beginning, but as we have people of increasingly different religious views, those become really salient um and become, you know, very, very contentious.
00:18:24
Speaker
It's not a problem if everyone is Protestant. Everyone agrees, right? It's when there's that difference that people they start to rub and the tensions emerge. That's right. Fascinating. But that's one of the great things about our Constitution, I think, and about ah the establishment clause. And it's kind of pairing the free exercise clause and the Constitution together. They're really at their heart clauses that are designed for people who can't really agree.
00:18:49
Speaker
about matters of religion. Can't really agree about these very important things. um What kind of rules are we going to set for the government so that we can live cooperatively with our differences?
00:19:03
Speaker
Well, and you alluded to looping back to the school prayer cases and the implications. So tell us more about that, the implications of all this for the school prayer case. Sure. yeah So um I'll tell you kind of we have two different lines now, right? We have the kind of line of compulsory church attendance at the founding. Objections to that, based on the idea the government didn't have the power to command that, to control your religious
Constitutional Interpretation of School Prayer Cases
00:19:24
Speaker
life.
00:19:24
Speaker
even it even if it provided exemptions. And on the other hand, we have this kind of lingering and then later developing practice of prayer in public schools in the 19th century. Well, basically in the school prayer cases, I think these two things really end up on a collision course with each other. And the court ends up choosing the first one, ends up choosing the kind of principle that you know the government doesn't have the power to require kids to pray in public schools, even if the government is excusing students who don't want to participate. But the court doesn't say it in that way, because the court either isn't aware of all of this founding era history, or they're just thinking about the Constitution in a much different mode. um But if you think about it in those historical terms, the decisions really make a lot of sense. Essentially, they're decisions about saying whether or not the government chooses to exempt students who don't want to pray or not,
00:20:18
Speaker
The government doesn't have the power to require students to pray ah under threat of penalty in public school. That assumes a power over your religious life that the government does not have. um That's really, I think, the kind of more historically oriented way to think about the school prayer cases.
00:20:37
Speaker
um But there's a competing set of considerations here too, obviously, right? Because we do have some history of 19th century prayer ah in public schools. um I think the court was right in the school prayer cases to kind of go with what's essentially founding era principle. I don't see how, once you have these gradual developments, how kind of the practice of 19th century prayer in public schools really is consistent with the Constitution, at least the values that the Constitution purports to protect.
00:21:08
Speaker
um But, you know, these are a complicated set of questions. But yeah, you might you can easily draw lines now that we understand what the varying kind of lines of the story are. um It's very easy to see the connection between this kind of early founding era debate about church attendance and things like mandatory school prayer.
00:21:26
Speaker
The complications of this story also kind of reveal the difficulty of relying on precedent. Which part of the history are you going to emphasize or which which century of school prayer is the one that you're going back to? It's not not as simple as just we're going to do what we did last time because there were many last times, right? Precisely, quite right. It does raise all of these really difficult questions.
00:21:51
Speaker
um And I think it really raises some questions about how you think about the authority of the Constitution and the text of the Constitution um and how the meaning of the Constitution might relate to um you know kind of other kinds of practices that exist, historical practices that exist later. um My own view on this is that the practices of public school prayer in the 19th century developed in a much different context. People didn't really think about it the kind of relationship between some of these early founding era convictions because it just, it looked like a much different situation to them, right? Education had always had a religious component to it that was very important to many people, most people, and you know,
00:22:35
Speaker
When the government gradually took over education, they weren't willing to let that go. right um But I don't think that's a good reason, at least not a good constitutional reason, as to why we should continue that practice today. um The other major complication here, again, I'll just say, it is about incorporation, applying the establishment clause to the states.
Concluding Thoughts and Historical Insights
00:22:56
Speaker
That was something that happened later. um And so, you know, another reason why people didn't really think about this in the kind of mid to late 19th century that wasn't on their radar screen back then, but it very much is on ours now. And I think, you know, again, suggests that for me anyway, thinking about the Constitution in light of founding era principle is the right way to think about it.
00:23:21
Speaker
Mark, is there anything else that we haven't talked about that you think is important for our listeners to know about your paper and about the work you're doing? I think one thing that I might just want to encourage listeners to do is to investigate some of these topics for yourself. I mean, I think one of the things that I found as a scholar um learning about 18th century history, learning about what founding era Americans thought about topics like compulsory church attendance, um is their ideas are really surprising to us now and in some ways kind of much more radical maybe than we give them credit for.
00:23:57
Speaker
um I mean, it's just a different way of thinking about the world to think that there are certain things that the people have given to the government to decide, and there are certain things that the people can never give to the government to decide. And I think that you know putting yourself in that different frame of mind, whatever you think it means for constitutional interpretation, can be a really helpful exercise. It just raises new questions. um It raises new possibilities. It really opens up a kind of new world.
00:24:25
Speaker
So I hope that whatever people take from this conversation, you know, one thing to take away is just the founding era world is really in some ways a foreign world from ours, but it can be a really interesting one and raise all kinds of new questions.
00:24:40
Speaker
That's a really interesting um perspective because I think, you know, with the focus on the historical practices in our setting, there's sort of a sense that there's a continuity that this is our history. This is our like, you know, this is something that's cohesive and coherent. But what you're saying is there's actually I think ah there's a depth and a diversity here that we've yet, you know, we're sort of beginning to kind of uncover and through work like yours, which is like great to kind of get into that and to get into those nuances that's really, really rich. Yeah, it's learning a part of our history that um we maybe thought we knew, but we didn't know as well as we think. I mean, we're Americans, so the thing that binds us together actually is the Constitution. It's not party. It's not caste. It's not religion. It's not these various other things.
00:25:23
Speaker
um So in that sense, yes, it is very much our shared um history together. But it turns out there are a lot of things about our history ah that are more complicated than they might appear at first. um And there are a lot more things to learn um than we might have thought at first. At least that's the experience that I've had. Well, thank you so much for this conversation. oh Thank you all. This is wonderful to be with you. I really enjoyed it. Thank you for joining us.