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This is, by the way, one of those decisions that would seem completely absurd to the founders of the country. They very much did not believe that US constitution demanded separation of church and state (even if they personally believed it would be desirable). For example, when the US Constitution was passed, Massachusetts literally had state religion. From Massachusetts constitution of 1780:
Not only requiring prayer in school was allowed in Massachusetts, in fact in 1791 Massachusetts passed a law that literally required Sunday church attendance (to be fair, this was never enforced). There was really no question about the constitutionality of this: at the time, the bill of rights was understood to apply mostly to federal, not state governments. The current jurisprudence is very much dependent on 14th amendment, and the incorporation doctrine.
Well, yeah. Add it to the long list of reasons why I'm not an originalist.
The decision would only seem absurd to the founders because they didn't have the 14th. Given that we added it, incorporation is legally sound. I'm sure some founders would object to it as federal overreach, but that's a values disagreement, not a sign of incoherence.
Yes, I did not mean to imply that the current doctrine is incoherent or is standing on the shaky basis (as did, for example, Roe v Wade decision, or still does most of the federal regulatory apparatus based on the unintended interpretation of interstate commerce clause). My point was simply that separation of church and state, contrary to what many people seem to believe, has not been one of the founding principle of this country, and in many states, quite the contrary.
I'd say current Establishment Clause doctrine is approximately as foundationless as RvW and other misadventures, though at least Lemon is now actually dead rather than zombie-doctrine. Properly speaking, the Establishment Clause ought to be a dead letter in practical terms, though technically existing in a legal sense. It's also one of the clauses that makes no coherent sense to apply to the states via 14th Amendment incorporation (unlike much of the rest of the Bill of Rights).
Per the original sense of the phrase and, you know, its actual words, the Establishment Clause stood for two things: first, the federal government was specifically barred from recognizing an established national church; and second, the federal government was barred from interfering--pro or con--in the decision of any state to recognize an established state church, or de-recognizing an established state church. Everything else hung on the Establishment Clause is without a legitimate foundation. Yes, the Supreme Court disagrees with me; it is wrong.
It's practically speaking a dead letter now because the state practice of recognizing a state church--though widespread at the Founding--fell out of favor over the next few decades. No state has had an established church for about 200 years, and the practice is well well outside the Overton Window everywhere in America (and properly so, sorry British people).
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