IFAS | Freedom Writer | April 1994 | prayer.html

School prayer and
America's deeply rooted traditions

By Barbara A. Simon, Esq.

Over the years we have heard many people ask, "Since the Congress and Supreme Court open with prayer, why can't public school classes open with prayer?" Others tell us that they had prayer and bible reading in school when they were growing up, and it "didn't do me any harm." Some of those individuals are members of majority religions, who lack sensitivity to the rights of others. Some, who believe that it didn't do them any harm, were harmed by failing to develop sensitivity to the rights of others. And some, perhaps the majority, were able to attach no religious significance whatsoever to the utterances they heard and spewed as part of their morning ritual. Those who care deeply about the protection of religion should be greatly offended by the secula rization of religion.

Some are upset that ever since Engel v. Vitale (1962), "God has been kicked out of the classroom," when the Court ruled that public school officials could not require pupils to recite a state-composed prayer at the start of each school day, even if the prayer was non-denominational and pupils who so desired could be excused from reciting it, because such official state sanction of religious utterances was an unconstitutional attempt to establish religion. The "God has been kicked out of the classroom" argument is specious. After all, what kind of weakling God do they believe in? If they truly believe in an Almighty, it would take more than a series of Supreme Court decisions to "kick God out of the classroom."

Just because the Supreme Court invokes a deity,"God Save The United States and This Honorable Court," and Congress opens its legislative sessions with prayer, does not mean that these practices are consistent with the First Amendment's Establishment Clause. The Supreme Court, in Marsh v. Chambers (1983), found that legislative prayer did not violate the Establishment Clause. Although the Court's decisions are not always correct, they are the law of the land until the Court reverses itself.

In Marsh v. Chambers, the Supreme Court departed from its tradition of applying the Lemon Test to Establishment Clause cases, when it addressed the issue of whether the Nebraska Legislature's practice of opening each legislative day with a prayer by a chaplain paid by the State violates the Establishment Clause of the First Amendment. The Court, in finding this practice was not violative of the Establishment Clause, based its decision on the historical acceptance of the practice and stated, "The opening of sessions of legislative and other deliberative bodies with prayer is deeply embedded in the history and tradition of this country." After tracing the history of state-sponsored prayer from colonial times to the present, the Court concluded: "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society."

Time and time again, we have seen the Court utilize the phrase "deeply embedded in the history and tradition of this country" or "deeply rooted in the fabric of our society" to justify an unjust result. One example of such a decision is Bowers v. Hardwick (1986), in which the Court found no fundamental right to privacy for homosexuals, relying upon the argument that proscriptions against that conduct [consensual sodomy] have ancient roots.

In Minor v. Happersett (1875), the Court refused to grant women the right to vote stating: "There is no doubt that women may be citizens.... For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. That all-male Court, relying upon a ninety-year history, voted unanimously that women had no right to vote. Forty-five years later (1920), the Nineteenth Amendment, which granted women the right to vote, was finally ratified.

In Plessy v. Ferguson (1896), the Court ruled that "separate but equal" (i.e. segregation) was consistent with our Constitution. Fifty-eight years later "separate but equal" was reversed by same body that condoned it, (albeit different justices), finding in Brown v. Board of Education of Topeka (1954) that "separate" is "inherently unequal."

These are but a few examples of the Court's change of perspective on the Constitution. In his dissenting opinion in Marsh v. Chambers, Justice Brennan, joined by Justice Marshall, accused the majority of "carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer." Justice Brennan proceeded to apply the three-pronged Lemon test and demonstrated how the practice of legislative prayer satisfies each of the prongs, and therefore is multiply violative of the Establishment Clause. Justice Brennan then discussed the important principles of "separation" and "neutrality," which are implicit in the Establishment Clause. Justice Brennan's discussion of separation and neutrality goes directly to the heart of the issue. Implicit in the First Amendment is to guarantee the individual right to conscience. Justice Brennan stated: "The right to conscience, in the religious sphere, in not only implicated when the government engages in direct or indirect coercion. It is also implicated when the government requires individuals to support the practices of a faith with which they do not agree..." The Establishment Clause was intended to prevent citizens from being forced to support a religion or religious exercise that may be contrary to their own beliefs. In "Bill for Religious Freedom" (1777), Thomas Jefferson wrote: "No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever."

Justice Brennan continued: "The second purpose of separation and neutrality is to keep the state from interfering in the essential autonomy of religious life. The third purpose of separation and neutrality is to prevent the trivialization and degradation of religion by too close an attachment to the organs of religion.... Finally, the principles of separation and neutrality help assure that essentially religious issues, precisely because of their importance and sensitivity, not become the occasion for battle in the political arena.... no American should at any point feel alienated from his government because that government has declared or acted upon some "official" or "authorized" point of view on a matter of religion.

Justice Brennan continued his dissent stating that "the argument tendered by the Court is misguided because the Constitution is not a static document whose meaning on every detail is fixed for all time by the life experience of the Framers. We have recognized in a wide variety of constitutional contexts that the practices that were in place at the time any particular guarantee was enacted into the Constitution do not necessarily fix forever the meaning of that guarantee."

Even if we were to assume that the Court's practice of invoking a deity and the legislature's practice of state sponsored prayer were constitutionally acceptable, there are several major differences between public schools and our courts and legislative bodies. Student attendance in public schools is compulsory. Truancy is against the law. Legislators voluntarily seek election. They are not required to attend sessions or appear in time to hear prayers at the start of the legislative day.

There is also a major difference in the mindset of the two audiences. Some studies, utilized by the Court, have shown that adults are not susceptible to religious indoctrination, but children are subject to peer pressure. In McCollum v. Board of Education (1948), Justice Felix Frankfurter wrote: "The law of imitation operates, and non-conformity is not an outstanding characteristic of children."

Additionally, the public schools are incubators for democracy. Instead of focusing on the differences among the students through divisive activities such as prayer, where religious minorities are political outsiders, public schools should instill democratic values of equality and all students should feel equally welcome - regardless of their race, creed or color. State-sponsored religion brings about the type of divisiveness that our First Amendment was intended to protect against.

In sum, just because in 1983 state-sponsored prayer in a legislative context was found to be constitutionally acceptable, does not mean that it will always be constitutionally acceptable. Additionally, much of what is constitutionally acceptable for adults is not necessarily constitutionally acceptable for children.

© 1998 Institute for First Amendment Studies, Inc.