Why the Constitutionality of Public School Prayer is so Complicated

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." These are the first 16 words of the First Amendment. This clause is commonly known as either "Freedom of Religion" or it is called the "Establishment Clause" by Functionalists and Historical Contextualists, due to the way the clause references "an establishment of religion." This clause is perhaps the single most controversial in the entire Constitution, and has been the subject of much debate, many proposed Constitutional Amendments, and some of touchiest political issues to date. Not the least of the resulting issues is the issue of Public School Prayer.

Many older Americans today remember growing up reciting the Lord's Prayer at the start of every day, listening to a benediction at their high school graduation, and maybe even saying a prayer at the start of their high school home football games. Today, due to various Supreme Court decisions, none of these activities are permitted in public schools anymore. With the 1962 decision in Engel v. Vitale, the Supreme Court stated that it was not enough to allow non-Christians to not participate in the Lord's Prayer in the morning, but that the prayer itself could not be read due to the coercive effect it might have on young minds, as well as the right of parents to raise their children with whatever religious beliefs they wished. Since then, more and more decisions have gone against religious displays in schools. Ultimately, this has led to many myths regarding prayer in schools. I would first like to quickly address what actually is and is not allowed today, and then I will move on to the analysis of the Constitutional issues.

What Is and Is Not Allowed in Public Schools Today?

The reaction to Engel v. Vitale was swift on both sides of the issue. Church-State Separationists immediately jumped at the opportunity to expand the law and pushed to further restrict school-sponsored and school-supported religious activities. Traditionalists mobilized to fight back. The result was many victories for those supporting Church-State separation, but not all victories. These victories, however, led to many generalizations made by both sides, leading to many myths regarding religion in public schools.

God is still allowed in Public Schools. Schools are actually forbidden from interfering with students' individual, non-disruptive prayers, their formation of prayer-groups, their formation of religious student clubs, and their and other non-disruptive, entirely student-led religious activities. That "non-disruptive" component is key. Participation in and exposure to the religious activity has to be completely voluntary on the part of the other students. As long as those conditions are met, it would actually be unconstitutional for the schools to interfere (note the "or prohibiting the free exercise thereof" portion). Students who are stopped by their school from engaging in non-disruptive religious activity can sue, and in fact on numerous occasions have sued successfully to prevent the school from interfering. Many Traditionalists unfortunately ignore the work courts have done to protect students' rights to conduct non-disruptive religious activities when leveling often unfair charges of activism against modern courts. Many Church-State Separationists have also created these problems by falsely claiming to schools that they are subject to legal action if they do not take such action. Both sides are incorrect, and ultimately harmful, in these assertions.

Additionally, God is allowed in the classroom when all viewpoints are represented, the discussion fits with the classroom curriculum, the classroom curriculum has a sufficient secular purpose, and no favorites are played. This is often done in the form of Comparative Religion classes, which meet these criteria by discussing many religions, the discussion obviously fits with the curriculum, most would recognize learning, understanding, and appreciating other cultures as a very legitimate secular purpose, and no religion is treated better or worse than any other through the academics of the class. Another place where open discussion of religion is allowed is in sex education class discussions. "Religious purposes" is very much a major reason that some choose abstinence prior to marriage, and so as long as the religious perspective is not pushed on the other students, all viewpoints are welcome, discussion of religious abstinence fits with the curriculum, the curriculum purpose of preventing teen disease and pregnancy is very secularly legitimate, and no favorites are played regarding one religious view versus another.

The final myth involves violence in schools. Many do argue that violence in schools has gone up since the removal of school-sponsored prayer from public schools. While it is true that violence has gone up since that time, school violence was in fact already in an upward trend. Increases and decreases in school violence has roughly paralleled increases and decreases in the violent crime rate nationwide both before and after the prayer decision. Additionally, some of the worst school attacks to date occurred before the 1962 decision. This includes the deadliest school attack in American history, the bombing of Bath Elementary School in 1927 killing the perpetrator's wife, himself, and 43 other teachers and students. Additionally, it was not until another 12 years after the 1962 decision that any multiple killings occurred in any American public school in the post-prayer era (this being a triple-murder at Olean High School in Olean, NY during winter break in 1974). As a result, the claimed link between the elimination of school-sponsored prayer and school violence is erroneous at best.

Constitutional Issues

Now that we've hopefully cleared the air regarding some of the myths regarding school prayer, we can move on to the Constitutional issues themselves. The questions for today are, can a public school force students to engage in a school-sponsored religious activity? If not, can a public school have school-sponsored religious activities from which students and/or their parents can opt out? If not, can students lead religious activities at school-sponsored events? Finally, if not, can students engage in student led, non-school-sponsored, non-disruptive religious activities in school facilities and/or during school hours?

Like most Constitutional issues, you will quickly find that all four major interpretations are lacking when it comes to giving a concrete answer on this issue. The first question and the last question generally have universally accepted (at least from a legal standpoint) answers (unequivocally no to the first, and yes to the last, with the last actually being illegal to interfere with). The middle two questions are the source of much of today's controversy. The second question covers things like a morning prayer, some state-sponsored moments of silence, and a prayer at the start of football games led by the coach. The third question covers things like student-led benedictions at graduation, to the audience at football games, or at the start of the school day.

Textualism

Textualism is a little challenging here. What exactly does "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." mean? Well, first, I would remind the reader that while it says "Congress" this now applies to state governments as well, due to Fourteenth Amendment incorporation. Since public schools are an instrument of state government, this applies to schools.

The second part of this phrase, "or prohibiting the free exercise thereof" gives us a pretty clear answer to the first question (schools cannot force someone to engage in a religious activity they do not believe in) and the last question (schools cannot interfere with a student's religious activity that does not disrupt the school or other students). The second and third questions, however, are where we reach difficulties.

First, the answer to this question depends on if you believe exposing students to religious statements and ideas that they or their parents do not believe in is improperly coercive of young minds. If you do, these things are a restriction of free exercise, and are not proper. But even in those cases, surely this reason runs out by the time students are high school aged. So, if you are only looking at the so-called "Free Exercise" clause, Textualists would say that once a student is old enough not to be coerced by expression of other religious beliefs, the school-sponsored expression of those beliefs is acceptable. The only room for debate is regarding at what age these things stop being coercive, if they are ever coercive to begin with. The only counter-argument to this would be that even in high school, if a Jewish student hears their school sponsoring Christian prayer, Jewish student might not be coerced, but still have reason to fear that he will not be treated equally by his peers and teachers because of his non-participation. In those situations, it could be argued that the "Free Exercise" clause is also violated.

However, the "Establishment Clause" adds a whole new mess. What, exactly, does it mean to say that no laws can be made "respecting an establishment of religion"? Does it mean simply that the government cannot create an official state church (thus "establishing a religion")? Does it mean the government cannot make any laws directly impacting established religions? Does it mean the government cannot sanction or support ("establish") any religious activity? The word establishment in this sense has multiple meanings, and the dictionary definition you choose affects this.

If you believe "respecting an establishment of religion" only means the government cannot set up an official church, then the "Establishment Clause" is irrelevant to the school prayer issue, and the "Free Exercise Clause" is all that matters. If you believe the second, then likely this means that schools must respect all religious beliefs (except, actually, atheism), and would likely mean the answer to question two is "no" but the answer to question three is "yes." Finally, if you believe "establish" means sanction, support, or create in this context, so the schools cannot sanction, support, or create religious activities, then the answers to both questions two and three would be "no." Which definition is the right one is something I will leave to you.

Original Intentionalism

Original Intentionalism largely follows the Textualist path on this issue. However, as usual, Original Intentionalists draw from the founders for this issue. Unfortunately, liberal Original Intentionalists (yes, some do exist) and conservative Original Intentionalists are both often guilty of picking and choosing statements and ideas of founding fathers.

For example, George Washington was quite open in his belief that religion was an important foundation towards society, and spoke approvingly when Congress decided to start each session with a benediction. John Adams considered religion so important to public life that he openly accused Thomas Jefferson of being an atheist as a campaign point. Jefferson, on the other hand, a deist by practice, was the first person to even coin the phrase "wall of separation between Church and State." James Madison protested when Congress decided to begin each session with a benediction (a tradition carried out to this day), declaring it was an unconstitutional encroachment by religion on the actions of the secular government.

It seems, then, that had there been public schools at the time, George Washington and John Adams would have answered questions two and three with a "yes" and Thomas Jefferson and James Madison would have answered them with a "no."

As for whose opinion we should listen to, well, the Bill of Rights, which includes the First Amendment of course, was largely written by George Mason. We unfortunately have very little evidence of his opinion on Church-State separation in either direction. James Madison was heavily involved in the Bill of Rights as well, but it is not known what role, if any, he played in writing the First Amendment.

Ultimately, then, we do not know whose opinions Original Intentionalists should take into account. Obviously if you want to listen to Washington, the President of the Constitutional Convention, and the President of the United States during the writing of the Bill of Rights, then the answer to questions two and three is probably "yes." If you believe James Madison, the "Father of the Constitution," and a member of the Congress that wrote the Bill of Rights, is the man that should be listened to, then the answers to questions two and three is probably "no." As for which man is the right one, that I leave up to you.

Historical Contextualism

The history on this issue is actually shockingly short. Remember the Bill of Rights was not incorporated to the states until the 20^th Century. Additionally, public schools did not come into being until the 20^th Century. Additionally, religion and the public square on a federal level is not really helpful to our analysis here, because none of this involved institutions so fundamental to the development of citizens as schools.

Many early public schools were partially supported by churches with leaders believing all children needed a good education. Moral education was considered critical to the curriculum. Prayers at the start of the day were a central part of schooling right from the beginning, along with the recitation of the Pledge of Allegiance, and also often the singing of the Star-Spangled Banner. In 1925, however, the first incorporation of any part of the Bill of Rights occurred when Gitlow v. New York incorporated Freedom of Speech. As this was part of the First Amendment, many Catholics, Christians not aligned with Catholicism or Protestantism and non-Christians who felt discriminated against by the Protestant majorities at the state level began campaigns to get the religious clauses incorporated. Schools were an immediate target.

In the early days of public schooling, most prayer was optional. Students were typically permitted without harassment to opt out of all activities which they felt violated their religious beliefs. In the mid-1930's, however, as World War II was looming on the horizon, a national unity craze pushed for schools to make recitation of the Pledge of Allegiance mandatory. Most did not originally consider this to be a religious issue since the Pledge did not include the words "under God" at the time (the phrase "under God" was added to the Pledge in 1954). Jehovah's Witnesses, however, felt that their religion forbade them from pledging allegiance to anyone or anything except God. As a result, Jehovah's Witnesses refused to say the Pledge of Allegiance.

In 1940, the Supreme Court ruled in Minersville School District v. Gobitis that schools should be permitted to force Jehovah's Witness students to say the Pledge. By an 8-1 decision, the Court first expressed its discomfort with getting involved with school policies (the idea of incorporation was still very new), and felt that the interest which a state holds in national "cohesion" is "inferior to none in the hierarchy of legal values." Because the flag was an important symbol of national unity, the Court argued that refusal to say the Pledge could undermine national unity, and ultimately harm national security.

There was a major backlash to this decision, resulting in hundreds of Jehovah's Witnesses across the country being beaten and killed in riots, and thousands more being terrified and attacked. Many denounced the religion as "unpatriotic," despite the large number of Witnesses serving in the military and fighting in the War, and discrimination against the religion became common-place. This could not stand. Just three years later, in the 1943 case of West Virginia State Board of Education v. Barnette, with many of the same justices on the Court, the Supreme Court overruled Gobitis, and declared that students must be given a religious exemption. Justice Robert Jackson, one of the 8 in Gobitis, wrote the majority opinion in Barnette. His most memorable quote from that opinion was: "The very purpose of the 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."

Since this time, the Court has slowly become more restrictive of school-sponsored religious activities. With Engel v. Vitale, the Court answered "no" to question two above. With 1992's Lee v. Weisman, the Court answered "no" to question three. The Lee v. Weisman case, however, is still an open issue for Historical Contextualists, as it is recent, was a 5-4 decision, and the author of the majority opinion, Justice Kennedy, had originally voted the other way and actually switched sides while writing the majority opinion for the other side.

Finally, in 1990, the Supreme Court addressed question four in Westside School District v. Mergens. In that case, a high school refused to permit an after school prayer club to form because all after school clubs were required to have a faculty sponsor, and school faculty could not sponsor a prayer club. The Supreme Court ruled by an 8-1 decision (meaning most liberal justices agreed as well) that the school either must allow a faculty sponsor who does not get paid for the extra time spent because of the sponsorship, or the school must make an exception to its "sponsor rule" for religious groups.

Because there is very little history of what has been seen as acceptable practice in public schools, largely because courts got involved from very early on, the court cases are often the best tools to analyze the Historical Context of these issues. Engel v. Vitale is widely accepted by most Historical Contextualists. This means most Historical Contextualists assume the answers to questions one and two are "no" and the answer to question four is "yes." The large debate is simply over how seriously to take Lee v. Weisman in regards to question three. That I will leave to you.

Functionalism

Functionalists tend to be fairly unified on questions two and three, believing the answers to be "no" to both. However, this is not uniform amongst Functionalists.

Functionalists tend to believe that in modern American, and global society, cultural understanding, tolerance, and acceptance is critical to success and survival. With increased multiculturalism in the United States, Functionalists tend to believe that no undue pressures should be placed on non-majority religions. Reference to "God" excludes polytheists like Hindus and Buddhists, while reference to "the Heavens" excludes atheists. Ultimately, then, Functionalists believe that if the Founders were alive today, they would likely say that religion is for Sunday School, not public school. As a result, schools should not be sponsoring prayers, nor should students be interrupting school events with prayers. However, part of tolerance and acceptance is allowing students to express their religion without disrupting others. As a result, most Functionalists also argue the answer to question four is "yes," and that the schools cannot restrict this.

There are some Functionalists, however, that disagree. To them, the modern world is one becoming rapidly more depraved and morally bankrupt. There is no better source of moral education in the world than religion. As a result, these Functionalists argue that religion is needed in schools now more than ever, and that if the Founders saw the country as it is today, they surely would answer "yes" to questions two and three, even at the expense of alienating some children who do not believe the same way as most of their classmates. Even these Functionalists, however, accept that religious liberty is fundamental as well, and would say "no" to question one.

Which Functionalists are correct? That is up to you.

Conclusion

School prayer is a very controversial Constitutional issue today. The debate is very heated, when it really shouldn't be. There are logical and coherent arguments to make that school prayer should be accepted as Constitutional. There are also logical and coherent arguments to make that it shouldn't. My hope, like always, is that I have not necessarily changed your mind, but you now understand why this issue may not be as simple as you originally thought.