In his March 27 "Rule of Law" column "Supreme Court Tackles School Prayer at Football Games," law professor Douglas Kmiec argues that the Establishment Clause of the First Amendment has been given such an expansive reading by the Supreme Court that it now is seen to be in conflict with the Free Exercise and Free Speech clauses of the same amendment: In order to prevent an establishment of religion, we must restrict the speech of citizens (such as prayers delivered at high school graduations and, perhaps, football games as well). Prof. Kmiec thinks this reading of the First Amendment is wrong, and so do I.
But he goes on to demonstrate that his understanding (or misunderstanding) of the meaning of the First Amendment is fundamentally the same as that which led the court to its current position. He writes, "If speech advancing religion is attributable to the government, the Establishment Clause requires the government to stop." It is difficult to imagine an opinion further removed from the original meaning of the First Amendment, which is why the court finds it challenging if not impossible to reconcile the Establishment Clause with Free Exercise and Free Speech.
First is the massive fact that the First Amendment was meant to place restrictions on the actions of Congress only, not states, counties or cities. Thus, on its face, it does not require local governments to stop advancing religion. But even if one accepts the dubious doctrine of incorporation, Prof. Kmiec's opinion is unsubstantiated.
Under pressure from groups such as the ACLU, the courts have decided that government, at all levels, must remain neutral toward religion and "irreligion." In this, the ACLU would agree with Prof. Kmiec's assertion that government must not advance religion at all. But the Establishment Clause of the First Amendment was never intended to prohibit government from advancing religion and morality. On the contrary, the men who framed and ratified the Constitution, as well as the Bill of Rights, believed only a moral people capable of self-restraint can be free, and thus they thought it essential that government take an active role in promoting the moral character of the American people.
For example, the first Congress (which adopted the First Amendment) passed the Northwest Ordinance, which stated, "Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." And George Washington, in his first speech as president, appealed to the "Almighty Being who rules the universe" for the success of the government of the United States.
The Establishment Clause was meant to do one thing: prevent the establishment of an official religion, so that sectarian differences could be taken out of the political realm, thus securing the possibility of a free government that operates by majority rule, while protecting minority rights. In principle the Establishment Clause does no more than the Article VI prohibition of religious tests for national office.
If the "laws of nature and of nature's God" are the source of our rights, then public recognition of God, religion and morality is in the service of the rights of all men, including atheists. If the purpose of government is to "secure these rights," then promotion of such recognition is the duty of government.