With graduation season upon us, the question if commencement exercises can begin or end with prayer has, once again, come to the fore.
Perhaps few issues are argued more keenly in America and elsewhere than those involving religion: the constitutionality of creches on Christmas, Sunday closing laws, religious symbols on city property and, particularly these days, prayer in public schools.
The United States Supreme Court has just handed a big win to a former Washington state high school football coach (see Page 13) who was fired for having routinely recited a post-game prayer on the 50-yard line. At issue was whether in so doing, he had violated the First Amendment’s Establishment Clause. The court ruled, in a spirited 6-3 decision, that he had not.
“Here,” said the court, “a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment... The Constitution neither mandates nor tolerates that kind of discrimination.”
This of course is not the first time school prayer has been in the headlines. The earliest case to confront the issue came almost 60 years ago, and to this day remains a considerable source of controversy. Over the years there have been numerous executive, legislative and judicial efforts to make school prayer constitutional.
History of Teacher-led worship
Teacher-led worship or meditation has been prohibited since 1962, when the Supreme Court ruled that it violated the constitutional separation of church and state (Engel v. Vitale). Then came a pair of cases that directly challenged legislative attempts to require daily prayer or a moment of silence (Abington Township v. Schempp and Murray v. Curlett, 1963).
A Pennsylvania law mandated the reading of 10 Bible verses each day, whether from the Old or New Testament. Just to the south in Maryland, Baltimore city school commissioners adopted a rule requiring daily prayer.
The plaintiff was the already notorious Madalyn Murray, founder of American Atheists, whose son William attended public school. Incensed that he had to recite daily prayers, she sued the school district for failing to adhere to the separation of church and state. The case quickly wended its way up to the Supreme Court, where she argued that Americans had “an unalienable right to freedom from religion, as well as freedom of religion.”
In 1963, the court found (8-1) that mandatory prayer in public schools violated both the First and Fourteenth Amendments, especially the rights of atheists. Justice Tom Clark was the lone dissenter, pointing out that atheism itself is a religion, whose adherents believe there is no God.
IT WAS Thomas Jefferson, author of the sweeping Virginia Statute of Religious Freedom (“no citizen shall be compelled to frequent or support any religious worship, place, or ministry whatsoever”), who in an 1802 letter to the Baptists of Danbury, Connecticut, wrote: “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.”
Legislative efforts to make school prayer constitutional have thus far failed, as have those by private groups, such as the Gideons International, to place bibles in schools, (Tudor v. Rutherford, 1953) and state school systems to require religious tests, and so on (Chamberlain v. Dade County, 1964). Laws that required daily morning devotions had begun even earlier at both federal and state levels.
The School Prayer Amendment
The School Prayer Amendment, first proposed in 1962 by Democratic senator Robert Byrd of West Virginia - and reintroduced in 1973 and a number of times over several years since - still sits in abeyance.
So does the School Prayer Amendment, formerly proposed almost exactly 40 years ago (in May of 1982) by president Ronald Reagan to permit public-school prayer or meditation: “Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any state to participate in prayer.”
Mr. Reagan went on to remark that the nation’s liberty stemmed from “an abiding faith in God [which] has been clear from the time of George Washington, who stated in his farewell address: ‘Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports.’”
He was joined by Reverend Jerry Falwell and senator Jesse Helms, who subsequently launched a nationwide campaign in support of the amendment, which fell short of the two thirds’ approval of the Senate.
Opponents of the measure included the American Civil Liberties Union, the Family Research Council, the Freedom from Religion Foundation, and Americans United for Separation of Church and State, as well as leaders of Methodist, Presbyterian, Episcopalian, Lutheran, Unitarian and Jewish groups.
But many states have long had laws on their books that require or permit a daily school prayer or moment of silence: Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Maine, Michigan, Mississippi, Montana, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah and Virginia.
Maryland’s might be the most notable. Long before the First Amendment was adopted, the Assembly of the Province passed “An Act Concerning Religion,” also called the Maryland Toleration Act of 1649. It was intended “to ensure freedom of religion for Christian settlers of diverse persuasions in the colony.”
In 1978, Maryland passed a law permitting a daily period of silent meditation: “Principals and teachers in each public elementary and secondary school in this State may require all students to be present and participate in opening exercises on each morning of a school day and to meditate silently for approximately one minute... During this period, a student or teacher may read the Holy Scripture or pray.” (Maryland Annotated Code Educ. 7-104. Daily Period of Silent Meditation.)
Meanwhile on the judicial front, a slew of other prayer cases have wended their way along the circuitous path to the Supreme Court.
IN 1980, a Kentucky law was struck down that had required posting a copy of the Ten Commandments in every public-school classroom. As if to justify its constitutionality, the small print on the signs read, “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” The court held (5-4) that the law was unconstitutional, finding “no secular legislative purpose and no non-religious educational function.”
In 1981, the justices were faced with a University of Missouri policy that refused access to its facilities by a student religious group planning to conduct services on campus because of its perceived “compelling interest” to keep church and state separate. The court disagreed, finding that the university had established an open forum by allowing other student groups use of the facilities and that “any religious benefits of an open forum would be merely ‘incidental.’”
In 1985, the court struck down an Alabama statute that authorized a one-minute period of silence in all schools for teacher-led prayer or meditation. (In so doing, it said that it was “unnecessary to comment at length on the district court’s ‘remarkable’ conclusion that the Constitution allows states greater power to restrict individuals’ First Amendment freedoms than does Congress.”)
In 1992, at issue were the commencement prayers at a public high school in Providence, R.I. led by a clergyman. The Court ruled (5-4) that the religion clauses had been violated: “When public school officials, armed with the State’s authority, convey an endorsement of religion to their students, they strike at the core of the Establishment Clause, however ceremonial their messages may be, they are flatly unconstitutional,” (Engel v. Vitale).
In 2000, the court ruled that student-led prayers before high school football games in Texas violated the Establishment Clause because they amounted to public speech authorized by a government policy and took place on government property at a government-sponsored school-related event; the realities of the school practice involved both perceived and actual government endorsement of the delivery of prayer at an important school event (Sante Fe School District v. Doe).
In June 1954, a Joint Resolution of Congress added the words “under God” to the Pledge of Allegiance recited in public-school classrooms across the country.
This caused some controversy, especially among those who felt that church and state should forever remain separate. Public schools exist to educate, they said, not to proselytize. Children in public schools are a captive audience, making prayer an official part of the school day is coercive and invasive.
On the other hand, proponents of strict separation of church and state argued that government neutrality toward religion should not be regarded as hostility. The record shows that religious beliefs have flourished in this country not in spite of but because of the constitutional separation of church and state.
Horace Mann, an early social reformer widely regarded as a father of the American public-school system, championed the elimination of sectarianism.
Catholics and minority-religion immigrants likewise objected to Protestant bias in the schools. By the end of the 19th century Bible-reading and hymn-singing were virtually nowhere to be heard in opening exercises.
In fact, though, silent or personal prayer has never been outlawed in public schools. The courts have consistently held that only government-fostered prayer – that is, services led or sanctioned by teachers or administrators – are unconstitutional.
Until the 20th century, only Massachusetts required bible-reading in the schools. By 1913 eleven other states had begun to make prayers or Bible-reading compulsory. A number of other states outlawed daily devotionals in public schools.
In today’s climate of political correctness it’s hard to determine how many schools consciously conduct or permit daily prayer sessions – just as in the modern world of tension and terror it wouldn’t be surprising if many actually do so.
The writer, an emeritus professor of law at the University of Baltimore, writes widely on matters of civil liberties and international human rights.