Monday, February 6, 2012 at 8:15 a.m.
Supreme Court Justice Wiley Blount Rutledge, knockin' down anti-disestablishmentarians back in the day.
Imagine you're at a high school pep rally: The football players are in their jerseys, the cheerleaders are yelling, and the students are getting ready for the school spirit contest. But first, a student is invited to the microphone to give an inspirational message.
"Let us pray," he says. Some of the students bow their heads. "Dear Lord, we thank you for the gift of another school year. Please protect these students, and these teachers, and this school, as we do our best to serve you. In Jesus' name we pray, amen."
At a private school, this wouldn't be particularly strange -- but a bill passed by the Florida Senate
last Wednesday would allow prayers like this in public schools throughout the state, from kindergarten up through the 12th grade.
The bill gets around perceived conflict by allowing students to give speeches and not allowing administrators to approve them ahead of time -- the idea being that if school officials aren't allowed to approve the message before the student says it, then prayer is totally cool.
But despite legislator attempts to use harmless, secular wording, it opens the door for what is most certainly school-sponsored prayer. While those pointing smugly to the absence of "separation of church and state" in the Constitution are correct, that separation has been thoroughly adjudicated by the Supreme Court. Here are five cases that suggest the bill, if passed, is ripe for a challenge.
1. Everson v. Board of Education (1947):
Though the court in this case affirmed a lower court's ruling that a school district could pay for student busing to private schools, a dissenting opinion from Justices Wiley Rutledge, Felix Frankfurter, Robert Jackson, and Harold Burton vehemently reinforces the need for a clear separation of church and state and knocks down the "free speech" argument frequently made to defend it:
The [First] Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion... The object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion...
Our constitutional policy... does not deny the value or the necessity for religious training, teaching or observance. Rather, it secures their free exercise. But, to that end, it does deny that the state can undertake or sustain them in any form or degree. For this reason, the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two-fold protection, and, as the state cannot forbid, neither can it perform or aid in performing, the religious function. The dual prohibition makes that function altogether private. It cannot be made a public one by legislative act.
2. Santa Fe Schools v. Doe (2000)
The court here heard a case in which parents objected to a prayer being said before high school football games. The school defended the policy because it said it held an election in which students voted to have an invocation at the games.
When it was initially challenged, a district court told the school district it could continue with the prayers if it ensured they were "nonsectarian" and "nonproselytizing" -- language that was originally in Florida's current school prayer bill but was removed. It doesn't much matter, because both the circuit court and the Supreme Court said it wasn't enough that prayers be nondenominational -- they can't exist at all: "Serious constitutional injury," the decision reads, "occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event."
3. Jager v. Douglas County Schools (1989)
OK, so it's not a Supreme Court Case, but it is a circuit court case that applies to Florida. It's another case of prayer before football games; when challenged, officials developed an "equal access plan" that made prayers nondenominational but didn't remove the religious content.
The court said that wasn't good enough, saying, "To persons of any age who do not believe in prayer, religious invocations permitted by the equal access plan convey the message that the state endorses religions believing in prayer and denigrates those religions that do not."
Though this bill puts the content of the "inspirational messages" in the hands of students, there's not much of a difference between having an organized prayer before a football game and giving students time to speak publicly and saying they can pray at their classmates if they want to. To allow anyone to lead an entire school in prayer stands to alienate not only those who pray to something (somebody?) else, but those who don't pray at all.
4. Abington Schools v. Schempp (1963)
In the case that "kicked God and prayer out of schools," the court ruled daily Bible readings in school were unconstitutional, and that the government must remain neutral on the matter of religion at large, not just neutral on picking one religion over another. The opinion includes a quote from Justice Hugo Black, from a different case: "Neither [a state nor the federal government] can constitutionally pass laws or impose requirements which aid all religions as against non-believers" -- which, it appears, is exactly what the current Florida bill's everybody-gets-to-pray time allows.
The opinion also gives a warning about accepting what seem like harmless compromises regarding the role of religion in politics: "The breach of neutrality that is today a trickling stream may all too soon become a raging torrent."
5. Engel v. Vitale (1962)
The bill came before the U.S. Supreme Court after parents challenged a school policy in New Hyde Park, NY that required students to say a prayer at the beginning of every school day.
Richard Engel, Florida's then-attorney general, signed a brief with 21 other state attorneys general urging the court to let the New Yorkers pray. It didn't work -- the court ruled the school district's adoption of the prayer was "a practice wholly inconsistent with the Establishment Clause [of the Constitution]." Though the ruling dealt mostly with the fact that officials had written the prayer and organized its daily recitation, the court's opinion deals heavily with school prayer in general.
The prayer's defenders said the policy was acceptable because the prayer was nondenominational and students were not required to recite it. Justice Hugo Black responds:
Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause. ... When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain.
Swing and a miss, religious people. Turns out the Supreme Court's phrase for "peer pressure" is "indirect coercive pressure," but the point is the same.
The concurring opinion from Justice William Douglas draws school prayer's unconstitutionality more broadly: He wrote that "The point for decision is whether the Government can constitutionally finance a religious exercise... It is an unconstitutional undertaking whatever form it takes."