The Supreme Court of the United States is once again visiting the issue of prayer in public schools. On Wednesday of this week, the high Court will hear argument in Santa Fe Independent School District v. Doe, a case challenging the Santa Fe, Texas school district's policy of allowing voluntary, student-initiated prayer at graduations and other significant school functions such as football games.
The 5th U.S. Circuit Court of Appeals upheld the prayer policy with respect to graduation ceremonies, holding that solemnizing that occasion was a secular purpose and thus permissible under the prevailing Establishment Clause test articulated by the Supreme Court in Lemon v. Kurtzman. But because no such purpose existed with respect to the football game prayer, the Court of Appeals held that aspect of the school's policy to be unconstitutional.
In Texas, of course — where the opening atop Texas Stadium is said to have been designed so that God could watch the Dallas Cowboys play football — a high school football game is every bit as solemn an occasion as graduation, perhaps more so. But quite apart from that fact, treating such student-initiated prayer as an unconstitutional establishment of religion improperly expands upon an Establishment Clause jurisprudence that already bears little resemblance to what the First Amendment originally was designed to prevent and puts the clause into even greater conflict with the Free Exercise Clause of the same Amendment.
The Establishment Clause was designed simply to disallow the federal government from establishing a national church — that is, to prevent federal law from giving any preference to one religious sect over others with tax funds or otherwise, or from compelling attendance at such a church. It was not meant to prevent non-sectarian prayer in public schools or aid to religion generally, an error in interpretation made by the Supreme Court more than 150 years after the Amendment was ratified.
The first Congress saw no conflict between the Establishment Clause and the Northwest Ordinance, which provided: "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." George Washington, in his first official act as president, prayed that the "Almighty Being who rules over the universe" would consecrate the government formed by the people of the United States. Even Thomas Jefferson, the patron saint of the separation of church and state movement, began the Virginia Statute for Religious Freedom by invoking Almighty God, "the Holy author of our religion" and the "Lord of body and mind."
Although uttered by the people who drafted and ratified the actual Establishment Clause, under today's expanded interpretation of the Clause, all of these references to God would constitute an unconstitutional establishment of religion.
Moreover, the Establishment Clause, like the rest of the Bill of Rights, did not apply to the States at all. In fact, the clause forbade the federal government from interfering with existing state established churches.
The initial language proposed by James Madison during the first Congress would merely have prohibited the federal government from establishing a national religion. After several members of Congress expressed concern that the proposed language did not do enough to protect existing state-established religions, the language was changed to prohibit the federal government from making any law "respecting" an establishment of religion, thus accomplishing the twin purposes of prohibiting the establishment of a national religion and of preventing federal interference with the existing state churches.
The actual text of the First Amendment — "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — raises the question of how an amendment that speaks only of Congress applies to the Texas school board. The short answer is that the Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment, which does apply to state and local governments, as incorporating some of the liberties protected by the Bill of Rights.
This interpretation was not "discovered" by the high court until half a century after the Fourteenth Amendment was adopted, however, and it was flatly rejected by the court upon reviewing the issue shortly after the Amendment was passed.
Although it may be too late in the day to contest this Incorporation Doctrine, honest scholars must nevertheless concede that the Incorporation Doctrine is at its weakest in the Establishment Clause context. By applying the Establishment Clause to the states, the courts have found implicit in the Fourteenth Amendment the very power to interfere with religion in the states that was explicitly prohibited to the federal government by the First Amendment. A strained reading, at the very least.
To the Founding Fathers, this expansive reading of the Establishment Clause would have been troubling. The Founders viewed a virtuous citizenry as a necessary prerequisite for republican government, and for them it was axiomatic that national morality could not prevail absent religious principle.
George Washington, for example, noted in his Farewell Address: "Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports." The Founders designed the federal system for the states to exercise the bulk of governmental powers, including the important police power to regulate the health, safety and morals of the people.
Supreme Court Justice William O. Douglas acknowledged the Founders' views when, in the 1952 case of Zorach v. Clauson, he wrote: "We are a religious people, whose institutions presuppose a Supreme Being." The very legitimacy of government by consent is based on the self-evident truth articulated in the Declaration of Independence (by Thomas Jefferson, no less) that all men, all human beings, are equally created by God. And the very idea that we have any rights is based on the claim in the Declaration of Independence that human beings are endowed by their Creator with certain inalienable rights, including the rights to life, liberty, and the pursuit of happiness.
This understanding of God as the source of the rights of mankind is more than merely of historical interest. Every one of the original states and every one of the current fifty acknowledges God in its constitution. The preamble to California's constitution is typical: "We, the people of California, grateful to Almighty God for our freedom, in order to secure and perpetuate its blessings, do establish this Constitution." The Massachusetts Constitution of 1780, still in effect, provides for "public instructions in piety, religion and morality" because "the happiness of a people, and the good order and preservation of civil government, essentially depend upon . . . the public Worship of God."
Indeed, many of the state constitutions recognize that the public worship of God is a duty of mankind, even while they expressly protect against formal sectarian establishments and provide for the free exercise of religion.
In Santa Fe, Texas, the overwhelming majority of students voted to have prayer at graduation and at football games because, in their view, the proper exercise of religion requires a public acknowledgement of, and thanksgiving to, God. No one was compelled to join the prayer. Non-believers were not taxed to erect a church or pay a minister's salary.
Even if non-believers attended and therefore listened because of the importance of the graduation ceremony or the football game, silent toleration of the religious exercise of others would never have been viewed by our Founders as an establishment problem.
Quite the contrary, a government restriction on the teaching of religion would have been viewed by the Founders as both an infringement on the free exercise of religion and as a dangerous undermining of the virtue necessary to the republic.
It is thus strange to interpret the Establishment Clause of the First Amendment in a way that not only severely abridges the free exercise of religion but actually prohibits acknowledgement of the very source of the rights claimed by those who oppose the student-led prayer. The Supreme Court has already traversed too far down this path. A renewed respect for the original mandate of the First Amendment should prevent it from proceeding further.