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The Prayer Threat
The Prayer ThreatSecular Nation, Winter 1995, pp. 4-8
Governments are expected to perform unique functions in society, such as those expressed in the Preamble of the U.S. Constitution. To enable them to accomplish those tasks, governments are empowered to engage in certain activities that are peculiar to governments and to governments alone. Only governments may levy taxes, mint legal tender, raise armies, protect international borders, incarcerate wrongdoers, pass laws, issue licenses, hold elections, zone real estate, issue building permits, conscript civilians and many other activities that profoundly limit what people may do with themselves and their property. Because of concern that the new federal government would do more than its citizens wanted it to do in their home states, the architects of our country set limits on the federal government in the same year that the U.S. Constitution was ratified.
Constitutional rights were first ensured for Americans in 1791. The Bill of Rights established rights by setting limits on what the federal government may do. Since 1925, those Emits have been applied to the states by the agency of the Fourteenth Amendment (the principle of incorporation). By specifying those individual activities with which government may not interfere, constitutional rights are carved for Americans.
Civil rights area relatively new arrival on the American legal landscape. Although Congress passed a Civil Rights Act in 1875 to ensure equal treatment for black Americans on juries and in places of public accommodation, the Supreme Court invalidated the law in 1883.
The 1954 Supreme Court finding that racial segregation of public schools was illegal kicked off rounds of legislation that were designed to eradicate institutional and individual discrimination on the basis of race, age, gender, religion, national origin and age. Enacted in 1957, the first federal civil rights act was designed to prohibit discrimination in voter registration practices. Stronger federal civil rights laws were enacted in 1960 and 1964, outlawing discrimination in places of public accommodation (by authority given en the federal government by the Interstate Commerce Clause of the U.S. Constitution), employment, unions and by registrars of voters. Civil rights protect minorities and those who are treated like minorities from unfair treatment from individuals and businesses. Ina sense, civil rights laws tell businesses that they must treat all their customers with a measure of respect and dignity, whether they have prejudice against them or not. Civil rights laws also affect governments when they conduct elections or behave like businesses, i.e., when they buy, sell, employ, lease, borrow and lend, or negotiate other contracts.
One thing that governments may not do is establish a religion, which has been interpreted to preclude even the appearance of endorsement of religion. Also, no government may restrict an individual's practice of religion, as long as those practices do not violate law that would make the conduct illegal in a secular context. For example, rituals that violate laws which prohibit prostitution have not been justified by a free exercise defense. However, in 1964, the Native American Church successfully defended a constitutional right to use peyote in its religious practice. Yet, many state courts insist on children receiving medical care in life-threatening health crises despite Christian Science parents who are opposed to medicine and surgery. During prohibition, an exception for Catholics' communion wine was written into the Volstead Act.
Mixing government and religion always presents a question of whether or not the contamination at issue passes constitutional scrutiny. Although some secularists feel that any mix of government and religion is objectionable, the history of American litigation dearly demonstrates that, in this country, some nonsecular practices are legal and some are not. The secularist tradition in American jurisprudence is tied to the Establishment Clause of the First Amendment to the U.S. Constitution. Establishment Clause litigation was virtually nonexistent prior to World War II. Thus, it has been mainly during the past 50 years that the Establishment Clause has been applied as a measurement of the propriety of government action that has religious components. In retrospect, most of these cases could not have been brought before the Supreme Court found that the Fourteenth Amendment incorporated the Bill of Rights and applied it to the states. And in most of these cases, it has been the religious purposes and effects of municipal government action, rather than federal government action, that have been issues of controversy. Many of the cases involved public schools. During the same period, suits were brought against municipal agencies, alleging violation of the free exercise clause.
At least five Supreme Court cases during the postwar period involved prayers. Engel v. Vitale, the first of these, involved a 22-word prayer drafted by the New York State Board of Regents for recitation 'in public school classrooms on every morning of the school year. In 1962, the Supreme Court found that " . . . the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government."
It wasn't until 1963 that the Supreme Court considered the legality of prayers led by public school teachers or staff as part of morning exercises. At issue were a Pennsylvania state law that required the opening of every public school day with a reading of Bible verse and a Baltimore school board rule, which required reading from the Bible or recitation of the Lord's prayer. The High Court found these practices in violation of the Establishment Clause as applied to the states by the Fourteenth Amendment.
In Abington v. Schempp, Justice Clark observed the following on behalf of the majority: "We have come to recognize through bitter experience that it is not within the power of government to invade th[e] citadel [of religion], whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality. Though the application of that rule requires interpretation of a delicate sort, the rule itself is clearly and concisely stated in the words of the First Amendment." After this 1963 ruling, the seven states that had school prayer laws discontinued the practice. A member of the Nebraska state assembly challenged the practice of opening legislative sessions with a prayer led by a paid chaplain. A federal district court had no objection to the prayers but enjoined the use of public funds to pay the salary of the chaplain and publish collections of his prayers. The U.S. Court of Appeals for the Eighth Circuit applied the three part Lemon Test (1970) and found that the prayers, salary and printing cost all 'in violation of the Establishment Clause. Although this practice unquestionably mixes government and religion, has the appearance of putting government in the position of endorsing and promoting religion and has no secular purpose, the 1983 Supreme Court could not find that the Establishment Clause was intended to prohibit legislative prayers.
Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. That same history showed that many people had lost their respect for any religion that relied upon the support of government to spread its faith. The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand.—Justice Black, Engel v. Vitale, 1962
Chief Justice Burger wrote: the First Congress, as one of its early items of business, adopted the policy of selecting a chaplain to open each session with prayer .... A statute providing for the payment of these chaplains was enacted into law on September 22,1789.... James Madison, one of the principal advocates of religious freedom in the colonies and drafter of the Establishment Clause ... voted for the bill authorizing payment of the chaplains. On September 15, 1789, three days after Congress authorized the appointment of paid chaplains, final agreement was reached on the language of the Bill of Rights.... Clearly the men who wrote the First Amendment Religion Clause did not view paid legislative chaplains and opening prayers as a violation of that Amendment, for the practice of opening sessions with prayer has continued without interruption ever since that early session of Congress.... since Bill prayer was said by the very Congress that adopted the of Rights, the Founders] could not have intended the First Amendment to forbid legislative prayer or viewed prayer as a step toward an established church.... their actions reveal their intent .... It can hardly be thought that in the same week Members of the First Congress voted to appoint and pay a Chaplain for each House and also voted to approve the draft of the First Amendment for submission to the States, they intended the Establishment Clause of the Amendment to forbid what they had just declared acceptable."
In his polite dissent from the majority opinion, Justice Brennan observed that, "the Court holds that officially sponsored legislative prayer, primarily on account of its 'unique history,' is generally exempted from the First Amendment's prohibition against the 'establishment of religion.' if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause." He goes on to apply the Lemon test to legislative prayers and finds that they (1) have no secular purpose, (2) promote religion, and (3) entangle government in religion, any one of which would be sufficient grounds of unconstitutionality. In addition, he quotes a test he devised in his Schempp concurrence: "What the Framers meant to foreclose, and what our decisions under the Establishment Clause have forbidden, are those involvements of religious with secular institutions that (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice."
Alabamastate law, as amended, initiated a moment of silent meditation or prayer as part of the opening exercises for every public school day. Although a federal district court judge in Alabama recognized that the law tended to establish religion, in clear violation of the First Amendment, he denied the principle of incorporation and audaciously asserted that, although Congress was precluded from establishing a religion, the state of Alabama was not. Apparently, the judge did not accept the consistent precedent expressed in dozens of Supreme Court rulings, which observed that the equal protection clause of the Fourteenth Amendment applied all of the government restrictions in the Bill of Rights to every state, including Alabama. The religious intent of the moment of silence, as perceived by the judge and expressed by its legislative proponents, led a narrow five to four Supreme Court majority in 1984 to conclude it was in violation of the First Amendment. The remarks of the legislators who argued in favor of the law revealed religious intent.
But mixing religion and public schools is not always found to be unconstitutional. In 1977, the Univer sity of Missouri at Kansas City denied use of University buildings to a student group that wanted to use them for religious worship and religious teaching. As the University of Missouri is funded by taxpayers, the administration sought to keep religion and government separate on public property. Suit was brought in federal court. Observing that the University recognized more than 100 student groups, the Supreme Court opined that denial of access to the Christian group abridged their freedom of speech, guaranteed by the first and fourteenth amendments, as the University's restriction was based solely on the content of their speech. In Widmar v Vincent, the Supreme Court found that the University's "exclusionary policy violates the fundamental principle that a state regulation of speech should be content neutral. . . '
Widmar is essential jurisprudence for understanding all types of personal expression on public property that is some kind of open forum. Temporary religious displays in public parks, for example, may not be prohibited under the purview of the Establishment Clause when the public property in question is available as an open forum for the expression of all kinds of ideas and sentiments. While government restriction in these places may not be content-based, time, manner, and place restrictions often pass constitutional scrutiny. For example, a state may prohibit a nativity scene during December in a park that allows no unattended displays. However, a religious ceremony may not be prohibited in a public park that allows other kinds of speech. In an effort to express and exploit the Widmar precedent, Congress passed the Equal Access Act in 1984. This statutory law prohibits public secondary schools that receive federal financial assistance and maintain "a limited open forum" for extracurricular student groups from denying equal access to students who wish to meet within the forum on the basis of the content of the speech at such meetings. If school districts allow meetings of noncurricular student clubs, such as, the chess club, ham radio club, scuba diving club or debate society, religious clubs can not be denied comparable access.
When Westside High School (Omaha, Nebraska) denied access to students who wanted to meet on school premises as a noncurriculum related student group during non-instructional time to read and discuss the Bible, have fellowship and pray, the principal and superintendent denied the request. One student appealed to the school board, which also denied the request. She then took the issue to court. The Supreme Court found that the students had the right to have a Christian club that met before or after the regular school day. Their decision was not based on either the Establishment Clause or the Free Exercise Clause of the First Amendment. Rather, the school had established a limited open forum at which students could speak on a broad range of subjects beyond the requirements of official curricula. Excluding a club from the forum because it would focus on religion abridged freedom of speech. The 1990 decision, captioned Board of Education of the Westside Community Schools v. Mergers, found that the denial of access was content-based and, thus, violated the free speech affirmation expressed in Willmar. Religious speech of students 'in public schools may not be prohibited on Establishment Clause grounds where nonreligious speech of wide variety is allowed. In order to avoid Establishment Clause violation, the Equal Access Act precludes involvement of school personnel in religious club activities. When students initiate prayers on their own, school officials are not involved, and government entanglement is absent. Under these circumstances, courts opine, the Establishment Clause does not proscribe student prayers in public schools. On the other hand, no student has the absolute right to lead a group in prayer at any time during the school day. When school personnel encourage student-led prayers, they violate the requirement of governmental neutrality toward religion.
Public schools are not an open forum for expression of any sentiment the way public; and sidewalks are. Neither students nor staff have an unrestricted right to speak about political candidates or issues, advertise products or services, or solicit donations. Individuals who are neither students nor staff have no right to express themselves without permission a public school campus while school is in session. Yet, when student groups are permitted use of facili- ties for student initiated extracurricular activities, a limited forum is created, the administration of which must be content-neutral.
Willmar clarified the dynamic tension between the establishment of religion and free speech clauses of the First Amendment. It affirmed that only those government restrictions that were content-neutral could withstand free speech clause scrutiny, even when it was religious speech involving ritual on tax-supported property. Willmarhas been the justification in some school districts for group prayers that are initiated by students before or after the school day. Establishment Clause concerns present themselves when public address systems are used as a means to communicate student prayersas part of daily morning announcements. When a school's voice amplification equipment is used, it appears that "the power, prestige and financial support of government" both conveys a message of endorsement of the prayers and creates circumstances in which everyone on the campus is forced to hear them.
In the most recent Supreme Court decision involving prayers prescribed by public school officials, a high school student sought to enjoin Classical High School in Providence, Rhode Island from opening graduation exercises with a nonsectarian invocation and closing them with a nonsectarian benediction. Writing on behalf of a bare majority in Lee V Weisman (1992), Justice Kennedy affirmed that, "It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise . . . " He found that the government decision to enforce religious ceremony on graduating students was a divisive action that " . . . supersede(s) the fundamental limitations imposed by the Establishment Clause.' The state-selected clergyman was provided with a copy of "Guidelines for Civic Occasions," and he was asked to make his prayers nonsectarian. Justice Kennedy ruled that the manipulation of the content of the prayers by a school official was also proscribed by the Establishment Clause. "Though the efforts of the school officials *in this case to find a common ground appear to have been a good-faith attempt to recognize the common aspects of religions and not the divisive ones, our precedents do not permit school officials to assist *in composing prayers . . . " he wrote, and quoted from the Engel decision as cited above.
In the following year, the Supreme Court let stand without comment an appeals court ruling that allowed students to recite a prayer during graduation exercises. Apparently, the absence of school officials or their designated clergy in the process cleared constitutional hurdles.
Not satisfied with this latitude, the country has now been threatened with amendment to the Constitution that would allow public school staff to lead students in group prayers. In May 1982, President Reagan proposed a constitutional amendment to allow individual or group prayer in public schools. In March 1984, it failed by 11 votes in the Senate.
Although Newsweek may say otherwise, an act of Congress does not overrule a Supreme Court decision. Congressional legislation is subject to judicial review by the Supreme Court in the same way that any government action may be. Supreme Court decisions may be and have been overruled by subsequent Supreme Court decisions. For example, the Plessy v. Ferguson decision of 1896 found no constitutional difficulty with the practice that segregated railroad passengers on the basis of race. Yet, the Brown v. (Topeka, Kansas) Board of Education decision of 1954 saw that separate public schools for black children were inherently unequal and that the Equal Protection Clause of the Fourteenth Amendment (1868) outlawed any public school system that separated children on the basis of their race, no matter how conscientious an attempt had been made to make racially exclusive facilities equal in quality. Similarly, in 1940, the Supreme Court, ruling in Minersville v. Gobitis affirmed the right ofd states to require public school students to participate in flail flag salutes, even though the exercise may have been in gray- conflict with the religion of their parents. A Jehovah's Witness family living in West Virginia found this oppressive and bro ght suit *in federal court. In 1943, the Supreme Court overruled itself in a case involving a state law that required public chool students to pledge allegiance to the American flag. In Barnette, Justice Jackson eloquently clarified the value of constitutional protections from majority preference and found no compelling state interest to enforce performance of ritual that was at odds with religionist conviction.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.—Justice Jackson, West VirginiaBoard of Education v. Barnette, 1943
The other means for overruling a Supreme Court decision is by the process of constitutional amendment. If a constitutional provision allows the government to tax individual income, as it does, no lawsuit will succeed that attempts to discontinue the income tax by claiming that this practice is unconstitutional. Likewise, if two thirds of each house of Congress and three quarters of the state legislatures slatures decide to ratify a constitutional amendment which provides something like "Nothing in this Constitution shall be construed as prohibiting individual or group prayer in public schools during opening exercises, as long as participation is voluntary," then no court can find a "voluntary" school prayer practice or law unconstitutional. Such an amendment would blast a gaping hole in the wall of separation that has been maintained by strict interpretation of the Establishment Clause since World War U. None of the Supreme Court decisions after the Schempp ruling of 1963 weakened its explicit prohibition of school prayers, although the voting has often been close.
Understanding the current state of legal tension in these matters, a constitutional amendment that would permit school prayers has now been proposed. Arguments in support of such a change are simple, facile and misleading.
Students should receive instruction about the spiritual heritage of our country. (President Clinton)
Maybe, but while repeating or listening to the same words of prayer every day may help students memorize those words, repetition does not educate students about any American tradition—historical, legal, spiritual or otherwise. Prayer, by definition, is not educational.
Government is required to accommodate religion; school children have "freedom of religion."
Government may not interfere with the rights of citizens to express themselves in print, for example, but nothing in our laws requires governments to give people access to printing presses. Government accommodates religious instruction by allowing "released time" from public schools, but no student has the right to pray when it disrupts order. No religion requires that he or she join with other students in public school buildings to pray during morning exercises. Such a ritual is part of the liturgy of no one's religion. Thus, to do so "accommodates" no religion. Many religions don't allow their adherents to participate in that kind of prayer.
The school establishment has refused to make any reasonable and constitutional accommodation to the feelings of religious parents. (John Leo, contributing editor, U. S. News & World Report)
What are the feelings of religious parents? If they are sincere and dedicated to their religions, they can conduct rituals of choice at home before school. Public school personnel cannot reasonably be expected to lead students in prayer that satisfies the requirements of every religious par ent. If children wish to pray during school hours, nothing stops them from doing so, silently or under circumstances that avoid disturbing others. However, there is no law that requires school districts to make accommodation to the feel ings of religious parents, but they often accommodate their religions by allowing, for example, children to be absent on religious holidays, wear prescribed ritual garments and abstain from flag salutes or other popular exercises, such as Halloween parties, that are forbid en by their religions.
Since prayer was excluded from public schools in 1963, the moral climate of our country has declined and the crime rate has increased.
Since "In God We Trust" became the national motto in 1956, crime and teenage pregnancy rates have increased. While both statements may be accurate, neither demonstrates that the undesirable social change (increased crime rate, etc.) is a consequence of the cited event (Schempp decision; change in national motto). No causal relationship is shown by either of these statements.
School prayer is voluntary; those who don't like it need not participate.
" . . . laws officially prescribing a particular form of religious worship  involve coercion of [nonobserving] individuals. When the power, prestige I and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain." — Justice Black, writing for the majority in Engel.