School prayer and the Establishment Clause

June 29, 2012 

In my last column, I issued a challenge to my readers to explain to me what the legal basis was for anyone to sue a public school system over that system having religious content as part of its graduation ceremony.

My point was that the First Amendment states that government should “make no law” that establishes religion and since there is no specific law covering what should or should not be said at a graduation ceremony, I didn’t see how a school system could be sued over the issue.

I did receive a few responses to that challenge, and they all boiled down to the same basic argument -- that the U.S. Supreme Court has handed down a number of decisions over the years that ruled organized prayer led or directed by school officials to be unconstitutional.

That such rulings have been made is, of course, irrefutable. But, unless we believe the Supreme Court is incapable of error, we have every right to examine those rulings and judge for ourselves whether they did or did not correctly adhere to what the Constitution has to say on the matter.

Let’s do that, shall we?

Perhaps the most important Supreme Court ruling on prayer in public schools was rendered in 1962 in the case of Engel vs. Vitale. The New York State Board of Regents had in 1951 composed a short nondenominational school prayer and proposed it as an optional, start-of-the-day prayer, for New York schoolchildren to recite if schools choose to do so. One of the schools in the system that elected to have students recite the prayer aloud at the beginning of each day ended up getting sued, and at length, the case made it to the highest court in the land.

The court ruled 6-1 that the school system’s encouragement of the recitation of a prayer to be “wholly inconsistent with the Establishment Clause” of the First Amendment. Prayer and other overtly religious activities in public schools have been largely forbidden ever since.

So, case closed? Well, let’s look closely at the specific wording of the Establishment Clause this judgment refers to:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...”

Now, if you would, please read those first four words to yourself again. “Congress,” it says, “shall make no law ...” As I interpret that, it is saying the United States Congress, composed of the Senate and the House of Representatives, is prohibited from making a law that has the effect of establishing a religion.

What then, I must ask, does this amendment have to do with a school policy set by the New York Board of Regents? To begin with, they didn’t actually pass a law. And perhaps more importantly, the New York Board of Regents is not part of the U.S. Congress, so (read those first four words of the First Amendment again if you need to) their actions had nothing whatsoever to do with the First Amendment. And therefore the Supreme Court had no jurisdiction to rule on this case. In fact, they probably shouldn’t have even reviewed it.

Note that I did not say that I think the government-composed generic prayer idea was ever a good one. I don’t. It was a well-intentioned but completely misguided notion, in my opinion. Prayer should never be something anyone should be “directed” to do by their government, with the words of said prayer composed by a government committee, no less. There are so many things that are wrong with that idea I’d need a whole other column to list them all. (I think Matthew 6:5-6 addresses it better than I ever could, anyway.)

But that is not the point. State and local governments do a lot of things that I don’t think are wise, but the great majority of those things have nothing to do with the Constitution. The school prayer thing is just one example among many that shows we are not really a constitutional republic any longer, and haven’t been for a long time.

Bill Ferguson is a resident of Centerville. Readers can write him at fergcolumn@hotmail.com or visit his blog at nscsense.blogspot.com.

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