On January 14, 1983, Chief Judge W. Brevard Hand announced what he knew would be widely regarded as a rather startling proposition. Believing that "[t]he first amendment in large part was a guarantee to the states which insured that the states would be able to continue whatever church-state relationship existed in 1791," Judge Hand held that the people of Alabama were perfectly free to "establish a religion," in this instance by allowing public school teachers to begin the school day with prayer. The ruling reversed an earlier decision in the same case, which characterized the statutory provision at issue as "state involvement respecting an establishment of religion" that was barred by "binding precedent which this Court is under a duty to follow[.]" On further reflection, however, Judge Hand concluded that the decisions commanding that result had, "in fact, amended the Constitution to the consternation of the republic." That, Judge Hand believed, led ineluctably to a sense of "justice [that] is myopic, obtuse, and janus-like," a jurisprudential world he no longer wished to inhabit. Predictably, those enamored of the idea of formal prayer in public school classrooms praised the decision as "historic," a ruling that "breathes new life into the Constitution of these United States." Those inclined to take seriously the Court's rulings, in turn, characterized it as "an act of anarchy," a direct assault on settled precedent declaring that "[t]he 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church." Indeed, Judge Hand himself admitted that his was "a voice crying in the wilderness[, an] attempt to right that which the Court is persuaded is a misreading of history," and predicted that his decision would likely "come to nothing more than blowing in the hurricane[.]" On that score at least, he was certainly correct. The winds of reversal arose quickly and swept away his constitutional heresies. On February 11, Justice Powell, sitting as Circuit Justice, entered an order staying the judgment, observing that there was "little doubt ... that conducting prayers as part of a school program is unconstitutional under this Court's decisions." Three months later, a panel of the Court of Appeals for the Eleventh Circuit reversed that portion of Judge Hand's ruling allowing for state establishment, stressing that "[t]he Supreme Court...has carefully considered [Judge Hand's] arguments and rejected them." And in June 1985, in a ruling focusing on the related question of whether the state could call for a moment of silence, the Court itself administered the coup de grace, stressing that "it [is] unnecessary to comment at length on the District Court's remarkable conclusion that the Federal Constitution imposes no obstacle to Alabama's establishment of a state religion," and reminding one and all "how firmly embedded in our constitutional jurisprudence is the proposition that the several States have no greater power to restrain individual freedoms protected by the First Amendment than does the Congress of the United States."
Mark R. Killenbeck,
The Qualities of Completeness: More? Or Less?,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol97/iss6/20