Religion is always constitutionally problematic in a liberal democracy because its centrality to the life of the individual (and its assertion of an alternative and higher source of loyalty and obligation) create the potential for competition with the demands of loyalty and obligation attached to our Constitution and political system. The public schools are a key intersection of these two domains; as Joseph Viteritti writes in The Last Freedom, “The public school is a unique institution in the way that it brings the public and the private lives of citizens together” (43). On the one hand, we say that society has the right and the need to socialize children into prevailing norms and values, but we say on the other hand that parents have the right to raise their children as they see fit. The school, according to Viteritti, “is the institution through which society passes on values from one generation to the next. But the question has always been, whose values?” (12).

A particular manifestation of this conflict is the subject of Bruce Dierenfield's The Battle Over School Prayer. One in a series entitled Landmark Law Cases and American Society, this book written for the general reader and perhaps for undergraduates, but not for the specialist in the field. Focusing on Engel v. Vitale, it traces the history of modern Establishment Clause jurisprudence without making any significant addition to the various theoretical debates. Chapter titles are quotations rather than analytically topical, and instead of footnotes or even endnotes, it appends a bibliographic essay. Nevertheless, Dierenfield makes an important non-theoretical contribution. Those of us who teach constitutional law usually focus on judicial reasoning and interpretation, on doctrine and principle, as relatively abstract and bloodless examples of legal argument. Dierenfield shows how the politics and constitutional issue of school prayer appear in the lives of real, flesh-and-blood human beings. He documents the ways the principals in Engel v. Vitale paid a high personal and social price for their litigation.

In particular, Dierenfield brings to life examples of intimidation and threats only hinted at when the Court talks abstractly about the coercion factor in Establishment Clause jurisprudence. According to Justice Douglas, concurring in Engel, “there is no element of compulsion or coercion” involved in reciting the Regents' prayer:

Legal compulsion is distinct from social compulsion, but legal compulsion can structure circumstances that allow for or even encourage social compulsion. Regarding the McCollum release-time case, for example, Dierenfield notes: “To reach her goal of 100 percent participation, Terry McCollum's fifth-grade teacher pressured him to join. When he refused, the teacher banished him to a tiny room next to the teacher's toilet and then to the hall, where he was teased and given a steady diet of “black eyes, bloody noses, and welts”” (53). Referring to one of the Engel litigants, Dierenfield writes, “In school the Lyons children endured continual taunts and threats because they remained silent during the prayer” (138–139). As late as 1993, in the Santa Fe case about prayer before high-school football games, according to Dierenfield, “The Santa Fe School District had crossed the church-state line numerous times before this latest dust-up. Fourth graders who refused to recite a Protestant prayer were denied lunch. Teachers had pressured their students to attend evangelical revival meetings” (209). So much of the Court's discussion of coercion in religion cases misses this human side of the matter, and Dierenfield is to be commended for detailing this important dimension even if he does not pursue in depth the theoretical issues at stake.

From that theoretical perspective, however, Viteritti's The Last Freedom is more interesting but, unfortunately, more disappointing. His principal concern is the religious freedom of devoutly religious minorities in a society dominated by what he calls the hollow middle:

The Establishment Clause, according to Viteritti, has come to overpower the Free Exercise Clause, producing a situation in which the freedom from religion has priority over freedom of religion: “the balance has been, and will continue to be, weighed against those who are deeply religious, whose day-to-day existence is shaped by their faith” (8). The generally secular character of American culture, he claims, reflected in our politics and constitutional jurisprudence, tends to disrespect and make life difficult for devoutly religious people.

We can be sympathetic to this claim, however, and still raise important criticisms of Viteritti's argument. First, he seems to consider the principal conflict over religion in American society to be one between the more religious and the less religious, but he ignores the not-infrequent conflict between one “more religious” and another “more religious.” For example, recall the police chaplain in the Lukumi case:

This was a matter of a religious group being persecuted not by secularists, but by another religious group. Second, and more fundamentally, Viteritti seems not to grapple seriously with the problem of a universalistic religion in a pluralist society. “We now seem to feel,” he writes, “that public life is unsuitable for the moral purist. But this seems to be the democratic way, and there is a point to it. In a pluralistic society, politics is about the clash of convictions — mine versus yours — not moral absolutism” (30). It is easy to talk about a pluralistic society, but consider what this means: difference is legitimate. Viteritti fails to engage the problem of a religious group that takes pluralism to be a case of approving error and falsehood and thus illegitimate.

Consider his discussion of the 1986 Mozert case involving religious objections to public school readings. Viteritti writes, “The parents did not want their children assigned readings that contradicted their religious views, or even materials suggesting that one form of religious teaching was as good as another. They sought an alternative to the required text” (56). Further, “For these fundamentalist parents, not all religions were the same. Nor was secularism a form of governmental neutrality. As they saw it, secularism was a particular worldview. This is a not altogether unreasonable interpretation of the secularist perspective” (60). Aside from his unjustified conflation of “secular” with “secular humanism,” Viteritti's point depends on how we frame the issue. Consider these three options: (1) the public school inculcates your own religious values; (2) the public school strives for neutrality, however difficult that task is and imperfectly it can be accomplished — regarding any religious values; or (3) the public school inculcates values contrary or even hostile to your own religious values.

It is one thing to accept (2) because we cannot allow (1), but it is something entirely different to argue that (2) is essentially (3) and thus we must revert to (1). That move is simply unacceptable in a pluralist society, and those who make that argument are necessarily out of luck. Viteritti does not grapple with such difficult questions. Any opposition to the universalistic claims of a religious group in the name of pluralism is going to constitute a rejection of those universalistic claims.

That is the central theoretical issue that Viteritti fails to engage, despite his commendable concern for the devoutly religious among us. He asks, “Is it possible to accommodate the faith-based beliefs of religious fundamentalism without allowing them to impose their beliefs on others?” (52), but he provides nothing in the way of a real answer. More broadly, he states:

Who would disagree with this? It is a nice sentiment, but it does not get us very far. As a plea to remember the devoutly religious among us, Viteritti makes a worthwhile contribution, but as an analysis of the political and constitutional problem posed by the devoutly religious among us, and as a sketch of a possible solution to that problem, his book disappoints.