Religion, Education and the State offers a window into the complex and varied interpretations of the Establishment Clause in United States jurisprudence. It explores the tension between the likely intention of the Framers of the First Amendment to protect established state churches from the federal government, and the seminal Everson case, which extended the protections of the Establishment Clause to actions by state as well as federal government, thereby restricting the kinds of religious activities that could occur in public schools.
In the maelstrom of change which characterises our current educational landscape in England, the book makes fascinating reading. The challenge that Professor Strasser sets us is to consider the value of the intentions of the Framers as opposed to the iterative case-law process, which results in jurisprudence developing along lines neither intended nor foreseen by its originators. Jefferson is famous for describing the need for ‘a wall of separation between church and state’ but there have been many and varied interpretations of the meaning of the phrase.
The early chapters discuss in easily digestible chunks the diversity in US practice, explaining that sectarian education of elementary school pupils, which is publically funded in places, is simply at odds with the spirit of Everson. Much case law is taken up with challenges to programmes of religious education in schools and an exploration of the conditions under which prayers can be said in school; Chapter 2 hypothesises that the Supreme Court was inconsistent in its application of the Establishment Clause and its reasoning frequently flawed. Chapter 3 takes time to explore the lack of consistency in the Court's decisions over public funding of higher education institutions. We learn that government funding of bus transport is as hot a topic in the US as it is in England (and Wales) and that the decisions of the Supreme Court, even when the same justices are involved, leads to case law which is at best inconsistent and at worst confused. The book lays bare the differing, dissenting and changing positions of the justices in different cases, notably Zorach, McCollum and Everson, and wrestles clearly and thoroughly with those differences before concluding that they are fundamentally not reconcilable.
While some aspects of the book will be of specialist interest to those concerned with US jurisprudence – such as Chapter 5's detailed discussion of the Pledge of Allegiance case law – the more general reader is likely to enjoy the exploration in Chapter 6 of the tension caused by displaying the Ten Commandments in schools and to have the chance to compare the different approaches to issues of religion and education on both sides of the Atlantic.
Strasser challenges us to reconsider the intentions of the Framers of the First Amendment, rather than focusing on the intentions of the Framers of the Fourteenth Amendment, which, he does acknowledge, are not plausibly interpreted as intending to protect state religious establishments. The book provides a serious analysis of the Establishment Clause jurisprudence before concluding that the guarantees it attempts to offer ‘are by no means easy to discern in the best of circumstances’ (p 185). Compound this with what Strasser describes as the Supreme Court's consistent rejection of previous analyses while claiming to follow them, and the result is an undermining of the authority of the Court and an increase in religious divisiveness. We are asked to consider how far this is removed from Jefferson's original intentions.
