School Prayer And Religious Liberty: A Constitutional Perspective     9/1/2000
By Laurel MacLeod

In 1962, the United States Supreme Court ruled that it was unconstitutional for the state of New York to allow the recitation of prayer in its public schools. The prayer that had been read daily said: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country."

Since that ruling, many facets of American cultural life have changed dramatically. Concerned Women for America (CWA) recognizes that the issue of school prayer has continued to arise because, in too many instances, religious expression has been denied to students. Prayer does, of necessity, carry religious connotations. The prayer issue has become a fundamental question of whether or not religious expression, in the form of prayer, is appropriate in the setting of a public school.

Legal rulings in the twentieth century have jeopardized free religious expression. As a result, public schools have grown increasingly hostile to the rights of students to express religious opinions. This policy analysis is intended to give clarity to the current discussion of prayer in the public schools, in relation to the Free Exercise Clause of the United States Constitution.

The First Amendment

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

Twentieth-century court decisions have placed the question of school prayer under the rubric of the First Amendment to the U.S. Constitution. The applicable part of that amendment reads:

In order to answer the question of whether or not prayer as religious expression has any place in public education, we must understand three things:

• The contextual history of the Constitution
• The textual history of the First Amendment
• The origin of the phrase "separation of church and state"

This paper addresses each of these and compares the findings to the decisions of applicable U.S. Supreme Court cases.

Historical Context of the Constitution

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

When the Constitutional Convention first met in Philadelphia in 1787, the religious landscape of the states was varied. Most states gave official recognition to one established religious denomination. The state of Virginia, for example, recognized the Episcopal Church as representative of the state. Religious belief as an integral part of colonial life was not in question. Rather, religious problems that arose among states centered on the differences among states’ established denominations.

The political landscape also bore marks of disunity. The Articles of Confederation had proved insufficient for governing, and the states were fighting over issues of taxation—namely, who should pay the costs incurred by the Revolutionary War. As the Constitutional Convention convened, observers said the idea of a Constitution, much less a nation, was fragile and quickly vanishing. Chaired by George Washington, this meeting of some of the original Founders was seen as a last attempt at unity.

During the Constitutional Convention, states squabbled and self-interest abounded, to the point that no progress was being made. It was then that an aged Ben Franklin stood and said:

"In the beginning of the contest with Britain, when we were sensible of danger, we had daily prayers in this room for Divine protection. Our prayers, Sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending providence in our favor ¼ and have we now forgotten this powerful Friend? Or do we imagine we no longer need His assistance?

I have lived, Sir, a long time, and the longer I live, the more convincing proofs I see of this truth: ‘that God governs in the affairs of man.’ And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?

I therefore beg leave to move that, henceforth, prayers imploring the assistance of Heaven and its blessings on our deliberations be held in this assembly every morning before we proceed to business [emphasis added]."¹

The 81-year-old Benjamin Franklin was not one of the more religiously-minded Founding Fathers—he actually believed more in the rational views of the French Enlightenment—yet he was willing to acknowledge the importance of prayer to the political aspirations of a nation. Not a prayer bound to a denomination, like the states already had, but prayer that acknowledged God as the Creator and Sustainer, prayer that superseded the petty factions of "officially recognized" establishments.

Historical Text of the First Amendment

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

After the Constitution was written, the first 10 amendments, known as the Bill of Rights, were added to ensure the maintenance of certain liberties not expressly stated in the Constitution. James Madison wrote the First Amendment "religion clauses," and an earlier draft made his intentions clear:

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.²

When the Antifederalists³ saw the word "national" in Madison’s earlier draft, they argued that his use of that word presupposed a powerful centralized government. That was not Madison’s intention, so his wording was changed to the present construction.⁴ Yet understanding the wording of Madison’s first draft shows that he intended to alleviate the fear that a national church, such as the Anglican Church in Great Britain, would rise to official preeminence.

Separation of Church and State

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

The phrase "separation of church and state" is not mentioned in the U.S. Constitution, because its drafters did not see a dichotomy between their religious beliefs and the document that constructed their Republic. The phrase "separation of church and state" came primarily from two sources, a letter Thomas Jefferson wrote to a group of ministers and from the U.S. Supreme Court case, Everson v. Board of Education.

The Danbury Letter. Thomas Jefferson wrote the famous phrase "separation of church and state" in a letter to the Committee of the Danbury Baptist Association in Connecticut. He was responding to the letter they had written, part of which said:⁵

"Our Sentiments are uniformly on the side of Religious Liberty—That Religion is at all times and places a Matter between God and Individuals—That no man ought to suffer in Name, person or effects on account of his religious Opinions—That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbor."

Jefferson’s response to their letter was amicable. He said,⁶

"Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions [emphasis added], I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."

Jefferson’s declaration of "a wall of separation between Church and State" expressed his opinion that the federal government did not have the authority to "prescribe even occasional performances of [religious] devotion."⁷ He did not question the validity of religious belief, but he constructed his "wall" to protect religious freedom of conscience from the potential of one federally recognized religion. His fears were well founded. In his Inaugural Address of the previous year, Jefferson had noted that America had "banished from our land that religious intolerance under which mankind so long bled and suffered."⁸ Clearly, Jefferson decried the federal domination of religious freedom through one established church.

In addition, when Jefferson founded the University of Virginia, the Pamphlet of University Regulations included two sections that read:

• No compulsory attendance on prayers or services.
• Each denomination to send a clergyman to conduct daily prayers and Sunday service for two weeks.⁹

Was this a man who would have sanctioned the complete removal of any form of prayer from the public schools of America? Obviously, Thomas Jefferson’s views on church and state have been grossly distorted.

Everson v. Board of Education. The second notable mention of the phrase "separation of church and state" came in the 1947 U.S. Supreme Court case, Everson v. Board of Education. The plaintiff argued the New Jersey law that reimbursed parents for the cost of bus transportation—to public and religious schools—violated the Establishment Clause of the First Amendment. The Supreme Court said that it did not. In the majority opinion, however, Justice Hugo Black used language to set the stage for damaging rulings in the future. He wrote that the Establishment Clause created a "complete separation between the state and religion." Jefferson’s letter was written 10 years after the ratification of the First Amendment, yet Black relied upon his own interpretation of Jefferson’s words, rather than on the text of the First Amendment, to set the Everson precedent for future rulings.

Twentieth-Century Cases

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

Twentieth-century courts, based predominately on Jefferson’s letter and on the precedent Justice Black created in Everson, have argued that the Constitution intended to separate all religious expression from public life. Yet that ignores the textual history and the original intent of James Madison, the author of these religion clauses. It also ignores the broad, historical context. The men who hammered out each section of the Constitution also believed in the importance of daily prayer.

The Establishment Clause has often been misinterpreted to mean that any link to religion is "establishing" religion. One of the causes of this is a simple alteration of the wording in the First Amendment. The clause reads, "Congress shall make no law respecting an establishment of religion." It does not read, "Congress shall make no law respecting the establishment of religion," as it is often misquoted. If the article is read as "the," then it refers to establishment of all religion in general. If the article is "an," then it clearly refers to a specific religion or denomination—an interpretation backed up by historical records. Realizing that the amendment uses the word "an" helps clarify the meaning of the Framers. So, rather than attempting to separate themselves from religious belief and expression, the Framers were trying to keep one denomination from being favored over another.

The twentieth-century cases pertinent to the issue of school prayer do not recognize those differences. They have clearly been built upon the framework created by Everson, as summaries of key cases demonstrate:¹⁰

• McCollum v. Board of Education (1948). It is a violation of the Establishment Clause for Jewish, Catholic or Protestant religious leaders to lead optional/voluntary religious instruction in public school buildings.
• Engel v. Vitale (1962). The daily recitation of prayer in public schools is unconstitutional.
• Abington School District v. Schempp (1963). Daily school-directed reading of the Bible (without comment), and daily recitation of the Lord’s Prayer, violates the Establishment Clause when performed in public schools.
• Lemon v. Kurtzman (1971). This ruling created the three-part "Lemon test" for determining violations of the Establishment Clause. To avoid a violation, an activity must meet the following criteria: 1) have a secular purpose; 2) not advance or inhibit religion (in principle or primary effect); 3) not foster excessive entanglement between the government and religion.
• Stone v. Graham (1980). The Court struck down a state law requiring public schools to post the Ten Commandments (with a notice of "secular application").
• Wallace v. Jaffree (1985). A state law requiring a moment of "meditation or voluntary prayer" was struck down as an establishment of religion because the intent of the legislature was deemed to be religious rather than secular.
• Lee v. Weisman (1992). A private, nongovernmental individual (in this case a rabbi) at a public school graduation cannot offer prayer. Student rights were infringed upon, according to the Court, because the important nature of the event in effect compelled them to attend graduation. That, in effect, compelled students to bow their heads and be respectful during the prayer, which the Court ruled was a constitutional violation.
• Santa Fe Independent School District v. Jane Doe (2000). The Court struck down a school district’s policy that allowed an elected student chaplain to open football games with a public prayer. Even though high school football games are purely voluntary activities, the Court concluded that the policy "establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events."

Notice that each of those cases focused on the Establishment Clause to the detriment of the Free Exercise Clause. That has been the trend of the twentieth century. The courts have too quickly forgotten that the Constitution explicitly protects the free exercise of religion.

Arguments Against School Prayer

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

While the Founding Fathers encouraged prayer during the Constitutional Convention and in ordinances governing education, the U.S. Supreme Court has dramatically shifted their original premises. Some legal scholars and special interest groups have built upon those precedents, creating other rationalizations for limiting religious expression in America’s public schools.

The most prevalent argument of such individuals is that the government has a responsibility to be neutral, so that no child is offended by the religious speech of another. This is erroneous because the issue cannot be neutral. Elimination of religious expression for the atheist will offend the child who believes in God. So, the schools must choose. Since 1962, they have sided with the small, nonreligious minority of atheists which, as recent Newsweek poll shows, consists of only 4 percent of the population.¹¹ By contrast, 94 percent of respondents to that same survey professed a religious faith, and 61 percent said that they agreed with the statement that "religion is very important" in their lives.¹²

If free religious expression in the form of prayer is prohibited, school officials are, at the very least, teaching children that public acknowledgment of God is not as important as the things the schools can discuss. It seems unreasonable that public schools allow open discussion about sex but do not allow open discussion about God. The courts have forgotten that schools can allow free religious expression without embracing any particular type of religious thought.

Another argument used against religious expression is that prayer "polarizes citizens around a religious axis."¹³ Yet the First Amendment was written to avoid the squabbles that might result among denominations. Not allowing prayer has done more to polarize citizens than almost any other issue in American history.¹⁴ Allowing prayer would put decision-making back in the hands of parents and local school boards, where it once rested. Those local boards could set guidelines that would allow students who object to all prayer or some prayers not to participate, just as many religious students have opted out of sex education classes. That would clearly respect the rights of the minority, without infringing upon the rights of the majority. Local school boards would also be protected by the constitutional "time/place/manner" restrictions that apply equally to religious and nonreligious speech.¹⁵ Ultimately, a restoration of free expression to local public schools would unite, not polarize, citizens.

Freedom of Religion: An Inalienable Right

The First Amendment Historical Context Historical Text Church, State Separation Twentieth-Century Cases Arguments Against An Inalienable Right

The Constitution grants the free exercise of religion to every American, and that right should not vanish at the doors of a public school. Although the Constitution does not overtly mention God, it does imply dependence upon a Creator through its last words, called the Subscription Clause. It says:

Done in convention, by the unanimous consent of the states present, the Seventeenth day of September, in the Year of our Lord One Thousand Seven Hundred and Eighty-Seven, and of the independence of the United States of America the twelfth. In witness whereof we have hereunto subscribed our names.¹⁶

The fact that the Founding Fathers recognized the Constitution as written in the 12th year of independence, shows the Declaration of Independence to be America’s founding document. The Declaration clearly acknowledges the Creator God.¹⁷

The Founders did not codify religion in the Constitution because Congress did not have the authority to govern religious thought. As James Madison so aptly put it, "Religion is the duty man owes to his Creator."¹⁸ The members of Congress did not desire to create a theocratic form of government, because religious belief is not under the jurisdiction of civil government.

Yet just as government does not have the right to impose religion, government also does not have the authority to constrain free religious expression. The Declaration of Independence did not infringe upon the multiplicity of modes of worship in the states, yet it acknowledged God and unchangeable universal principles, as inalienable rights.

That balance is still possible today. Congress must now meet the challenge presented to them. Americans overwhelmingly favor a remedy for the jurisprudence of error that has suppressed their rights of free exercise for too many years.¹⁹ Let us return to our heritage as a free nation, unencumbered by the bonds that have too easily entangled us.

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