Violating the First Amendment

137 comments for “Violating the First Amendment”

1. Eric,

   It’s bad enough to allow students to offer voluntary prayers, but a teacher at Columbine said a prayer with his students while the students were locked in the room. Talk about a captive, state-enforced audience of children in delicate frames of mind. Unfortunately the ACLU abandoned their principles and didn’t sue him or the school district.

   Like you, I have a hard time supporting any laws that begin, “Thou shalt not pray . . . “

2. Why can’t we just keep it at “congress shall make NO law” re. religion?

3. I do have a problem with “Baptists wanting to do the same at Baptist-majority schools, or Catholics at Catholic-majority schools, or Jews at Jewish-majority schools” because I went to such a public school. LDS prayers are fine and dandy when you’re in the majority, but try putting up with the other prayers when you are the only Mormon in a school. I’m no fancy big city lawyer, but I thought that the Constituion was there to help protect citizens from the tyranny of the majority.

4. Jack: Or perhaps it should be “CONGRESS shall make no law.” You can’t really decide these things by appeals to literal or plain meaning.

5. But is prayer tyrannical?

6. This might seem inconsistent with the labels I’ve accumulated for myself over my experience blogging here, but I don’t think that school-sponsored prayer is appropriate in public schools. If students, however, want to band together on their own for prayer circles or for spiritual thoughts, then they should be free to do so, even on school property.

7. “But I have no objection to Baptists wanting to do the same at Baptist-majority schools, or Catholics at Catholic-majority schools, or Jews at Jewish-majority schools, or Muslims at Muslim-majority schools.”

   We already have such schools — the parochial schools. Anyone is free to found his own seminary or madrasa, but the public schools should remain free from proselytism, however seemingly benign. A public prayer is cannot fail to be coercive. Let those who wish to pray offer up silent prayers, as they are already free to do, rather than make efforts to be seen (or heard) of men.

8. Godot,

   If you don’t think prayers can be tyrannical, then you have never heard a baptist prayer blasting over a football stadium speaker and asking that all the catholics, jews, and mormons acknowledge Jesus so they won’t burn in hell. When there are only 3-4 mormons in the entire high school, prayers like that cause real feelings of oppression.

   Prayer has long been an instrument wielded tyranically by majority religions to suppress minorities. It shouldn’t be used that way, but it unfortunately has been abused as an instrument of oppression. So yes- prayers can be tyrannical, they can be oppressive, and downright mean.

   Your question should be: “But SHOULD prayer be tyrannical?” Of course it shouldn’t.

9. There’s a hadith where Muhammad answers the question of how a Muslim army can know whether to attack a particular village or town. Really, the question is how to determine whether or not a community is sufficiently Muslim to escape attack or not (because Muslim warriors are prohibited from deliberately killing other Muslims). Muhammad’s answer is that the army should wait until morning and listen for the adhan or call to prayer. If the adhan sounds then the army should abstain from attacking. If the adhan is not heard then the Muslim army should proceed with the attack. I believe this hadith appears in both Sahih Bukhari and Sahih Muslim (the two most prominent ahadith collections).

   To me, this is a sign of how a particular group or individual can use its specific prayer customs to determine who their allies are or not. It’s quite possible that biases could be created by a prayer group, if someone chooses not to participate.

   My feeling is that religious majorities and minority groups need to be sensitive to each other. Sensitivity is a two-way street. Some people grow up their whole lives as part of a majority and lack sensitivity to those who are in the minority position. But a minority group can be quite narrow-minded, intolerant and hostile as well.

10. Danithew, I fully endorse the position that the minority needs to be tolerant of the majority too. I fear this position is far too infrequently articulated in our society. But school-sponsored prayer in a public school really does take things too far, in my opinion. Jordan has made an excellent point about why in his comment # 8. If Baptists had their way, a Latter-day Saint would never pray in a Baptist dominated school (e.g. in Dallas), if school-sponsored prayer were allowed. That is because Latter-day Saints are members of a cult, of course, and it would be Satanic to allow a Latter-day Saint to lead a prayer for the whole school. Conversely, nothing would stop the Baptist student who ends up offering the prayer from saying such things as Jordan expressed in # 8. A Baptist has every right to utter such prayers and to believe such things on private property. But the school shouldn’t be sponsoring it by allowing school-sponsored prayers in a public school.

11. > try putting up with the other prayers when you are the only Mormon in a school.

    Scott: Well, I wasn’t the only Mormon at Baylor Law School, and the Baptists there didn’t have all that many prayers before functions, so maybe it’s not an extreme case. But I have been in plenty of situations where people not of my faith were praying, and I managed to endure it just fine. If I were being forced to pray to a god I did not worship, that would be a different matter. But allowing others to pray as they wish, even in a public school setting, is not something I would deny them.

    > I don’t think that school-sponsored prayer is appropriate in public schools.

    john fowles: So you would have prohibited Mr. Smith and Mr. Jones from doing what they did, and punished them for doing it?

    > Let those who wish to pray offer up silent prayers, as they are already free to do, rather than
    > make efforts to be seen (or heard) of men.

    Bill: Your comment assumes a bad motive on the part of those who offer prayers in public. Is it not possible that people might truly believe, for example, that saying a prayer together before travelling to a competition or taking a test might be helpful to those involved? And it seems you would go farther than john fowles, and prohibit student-led prayers.

12. Baylor’s not a good example because you chose to go there even though you were LDS and it was a private Baptist school. If it were the University of TX, a state school, and the Baptists were offering prayers before class or whatever, then that would be inappropriate.

    As to your teachers, I would not prohibit them from doing it or punish them because I would lack any standing to do so. But I would not disparage a student seeking to enforce his or her rights against such school-sponsored prayer.

    This is no way implies that I think that Newdow has a valid complaint against the Pledge of Allegiance. That is a wholly different matter than a public school sponsoring an in-school prayer.

13. According to well-placed gossips, one of my high school teachers thought that one student would be helped most of all by sexual experience, and contributed to the collection for paying a prostitute’s usual and customary fee. The teacher was no doubt aware that what he was doing was illegal, but he felt he was helping the student, and I tend to believe that the student appreciated the effort.

    How about just following the law?

14. I have no doubt that prayer, like all other forms of speech, can be unkind, intolerant, etc.
    But are the ACLU and their friends really merely concerned about the jabs that insensitive kids may make at each other? Their objections to prayer, I believe, are independent of content.

    If people are using prayer as a forum for intolerance then the problem will not be solved by eliminating prayer because the prayer itself is not the problem. It is the attitude, and the attitude will find a way to express itself if it wants to, whether through prayer or not.

    It would seem as if, in general, prayer has the potential for tempering that attitude rather than inflaming it.

15. For my point about Baylor, it’s irrelevant whether it was a private school or a public school at which there were Baptist prayers. My point was that I was a religious minority who heard prayers offered by those in the majority, and suffered no ill effects.

16. You personally suffered no ill effects (and even if you did, you would have no recourse since by your own choice you landed in a private, Baptist environment) but some other individual might have a different reaction. Yes, there is virtue is having a thick-skin, and I think everyone, especially minorities, should take a little less offense at things a little more often, but there is no reason for the state to allow school-sponsored prayer and open the door to possible offense.

17. Godot, why in the world should prayer be sponsored by a state school at which children of numerous different faiths are present?

18. Jonathan,

    Your suggestion is interesting (particularly in light of reports of teachers who, in the hypothetical you construct, would save the money and offer up their own bodies), but your last line simply begs the question.

    You assume that the law requires that there be no public prayer in public schools (and, for the most part, that is what the Supreme Court seems to have said that the law is), but since when did Supreme Court decisions become holy writ, not open to criticism and possible change? The text of the amendment simply says that “Congress shall make no law respecting an establishment of religion”. I suspect that current 1st Amendment jurisprudence has gone a long way from 18th century understanding of what an establishment of religion is. Allowing a student to offer a prayer is a long way from taxing the population in order to pay ministers’ salaries and the costs of building cathedrals–and it is a long way from the original school prayer case, where the prayer required by the New York Board of Regents (and written by those estimable divines, as well) was held to be an unconstitutional establishment of religion.

19. EJS:

    Are you sure? I bet one of these days you’ll up and go Baptist on us.

    ———
    I side with the brothers Fowles on this issue. But at the same time, I would like to see there be more room for the expression of (or at least discussion of) religion in public schools. The current psuedo-secular climate is very unsatisfying.

20. In the case of LDS students in Texas who sued to stop Baptists from having prayers at school events, I can understand that they might have been annoyed and frustrated by what they saw as intolerance from Baptists.

    But I really wonder whether suing to stop the prayers was a good idea. The perception of our church is bad enough among Baptists, and such a lawsuit would only be more evidence that Mormons are on the side of the Devil. Whatever nuances there may have been in any insulting language in the prayers is completely lost when the story gets boiled down to “Mormons and ACLU join together to take God out of the schools.”

21. I’m not the only one who assumes a bad motive:

    And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

    But thou, when thou prayest, enter into thy a closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly

    However, I’m sure that many people who would wish to pray in the circumstances you describe are sincere, but I’m not convinced of the propriety of such prayers, despite their good faith. I too, have “been in plenty of situations where people not of my faith were praying, and I managed to endure it just fine,” especially when I have been in their churches and homes, where I could hardly object, even if I wanted to. In many cases I have been extremely moved.

    This is why I would not cheapen the experience by countenancing the type of vainly repetitious prayers that one usually hears prior to journeys or competitions or tests. As I don’t inflict my own religiosity on others in the public sphere, I appreciate others doing the same. This is a matter of courtesy, however, and not the law. I think students are free to associate and pray together, but when it takes on the imprimatur of the institution, problems arise.

    You can probably guess that I’m not thrilled with things like White House prayer meetings either.

22. An interesting addendum to this is that, while I was at Baylor, I expressed my views on school prayer in a civil rights class, mostly by recounting the two stories above. Because my views, I was invited to be on a panel for a Law, Ethics & Morality class to discuss the issue of school prayer. The other two panelists were a Baptist minister and someone of the Church-State Studies department at Baylor.

    Of the three panelists, I was the only one supporting prayer in public schools. After the panel was over, though, many of my fellow students came up to tell me that they agreed with me.

    Let me make it clear that I don’t think students should be forced to pray. But I do think students should be tolerant of those who wish to pray, even if it’s in an organized manner.

23. But I do think students should be tolerant of those who wish to pray, even if it’s in an organized manner.

    I think people should definitely be tolerant, but why should the state sponsor prayer in public schools? What were your legal arguments on that panel in support of school-sponsored prayer in public schools? Would the school force a system by which each faith gets occasional representation in school-sponsored prayer, so that it isn’t just the Baptists praying that Latter-day Saints will convert so as to avoid hell all the time, or would the school insist on some kind of neutralized, “non-denominational” prayer that could somehow respresent the faith of Christians (including Latter-day Saints), Jews, Muslims, and atheists?

24. BS, the first Amendment provides freedom of religion, not freedom from religion.

25. Why does the state have to “sponsor” it? Why can’t they just allow students to do what they want?

    In many weekly night classes, the professor will ask if the students want to take turns bringing some sort of refreshments each week. No individual must, and the group as a whole can decide that they don’t want do it as well.

    Couldn’t such a concession be made with prayer without formal sponsorship of the school?

26. John,

    The legal argument is that holding prayer in a classroom or before a graduation ceremony or a football game, particularly in the situation where a member of the class is invited to say the prayer, is not an “establishment of religion” as contemplated by the founders.

    So far as promoting religiosity on the part of the students is concerned, such prayers seem likely to have no effect. They do, on the other hand, stand for an important principle–that faith, and expressions of that faith, are not somehow unworthy of educated people, and therefore need not be driven from the public square.

    The real problem with the supposedly religious “neutral” that public schools are required to take these days is that the complete absence of any religious expression (try singing a Christmas carol at a school assembly) is not really neutral, but suggests a hostility toward religion.

27. #21
    Uh, Bill, do you believe in public prayer at all? Do you sit in church with your lips pressed thinly while the congregational prayer is uttered? If you were with an all LDS private group who uttered a prayer before an exam, would you mutter ‘thou whited walls’ under your breath? If not, your point isn’t really on point.

    #20, #23
    I understand very well objecting to a steady diet of Jack Chick prayers, but why is the remedy so obviously to get rid of prayer all together? If we’re suing anyway, why not be novel and ask for equal time, or at least for expressions that aren’t aimed at condemning another religious group? Maybe the judge won’t grant that remedy, but then he and the SuCo’s interpretation of the Constitution are the bad guys, not us.

28. BK (Broiler?): I fully believe that too. My stance is not motivated in any way by the religion hatred that can often be found in such a position. I have nothing to do with the ACLU. The point is that there is no reason that the state should be sponsoring prayer in public schools. If students in public schools want to pray, they should be allowed to organize themselves to pray. In a mild way, that is also a state sponsorship of prayer, if it happens on campus, but it allows all students to self select into the prayer situation (or none) that they want to find themselves in. If we had state-sponsored churches, the analysis would be different and there would hardly be grounds for preventing a school from sponsoring a certain type of prayer. But the Constitution disallows the Establishment of any church by the state. So schools likewise should not be sponsoring prayer.

29. Oops. Put a “stance” in that last post after neutral.

30. The real problem with the supposedly religious “neutral” that public schools are required to take these days is that the complete absence of any religious expression (try singing a Christmas carol at a school assembly) is not really neutral, but suggests a hostility toward religion.

    Mark, I understand this and I also trumpet a posture of originalism in constitutional interpretation. But none of that leads to the conclusion that public schools should sponsor prayer to any degree more than merely allowing students to organize themselves into prayer if they choose to do so.

31. Godot # 25, this is what I’m saying except to a lesser extent. The students can pray on campus if they want to do so, but I don’t contemplate a teacher inviting them to do so if they want; rather, the rules could be set that prayer groups that don’t disrupt are allowed and students can self-select how they wish to translate that into their practical lives.

32. Here’s an interesting twist that happened to my dad while he was coaching high school wrestling:

    He had, just before each match, a few minutes of silence. This was NOT prayer, as he told the wrestlers to, in their minds, “picture themselves performing perfectly – doing every move right, and winning” – a mental imaging exercise.

    He got complaints from the Baptist students (there were three IIRC) that he was attempting to brainwash the students with satanic prayer meetings.

    I don’t know if that contributes to the discussion, but prayer is often in the mind of the beholder.

33. BS, the first Amendment provides freedom of religion, not freedom from religion.

    This may seem like a stupid question, but what is the difference? Specifically, what is the difference for someone who subscribes to no particular religious belief? Even if we could accomodate in the public arena a prayer that is sufficent for all believers, wouldn’t the very prayer be a state-sponsored imposition of religion on the nonbeliever?

34. The phrase “a moment of silence” conjures thoughts of prayer or meditation. But I remember being told by basketball coaches that I would be a better basketball player if I visualized myself making shots. maybe the problem (in the wrestling example) is the terminology that was used. At the same time it seems to me that some evangelicals will go an extra (and in my mind unnecessary) step of condemning things that are quite harmless or even positive — making issues out of matters that have little to do with serious religion.

35. Would the school force a system by which each faith gets occasional representation in school-sponsored prayer, so that it isn’t just the Baptists praying that Latter-day Saints will convert so as to avoid hell all the time, or would the school insist on some kind of neutralized, “non-denominational” prayer that could somehow respresent the faith of Christians (including Latter-day Saints), Jews, Muslims, and atheists?

    I don’t think either of those is a good solution.

    Take a high school graduation. What’s wrong with having a prayer offered at a high school graduation? If the majority of the school is Baptist, I see no problem with having a Baptist give the prayer every year. (I’m sorry, but you can’t object on the grounds that it might offend someone in the audience, because other speakers who are not praying are allowed to do so.)

    I don’t want some sort of bureaucratic determination of who can say what type of prayer — that’s what really sounds like the beginnings of an establishment of religion. In general, I’d like to see prayer treated as form of speech, and accorded as much protection as we give speech that is not a prayer.

36. I’d like to see prayer treated as form of speech, and accorded as much protection as we give speech that is not a prayer

    But this doesn’t answer the complication of the state sponsoring such a prayer to the exclusion of others.

    I’m sorry, but you can’t object on the grounds that it might offend someone in the audience, because other speakers who are not praying are allowed to do so.

    I don’t understand what you mean with this sentence.

37. diebold,

    The great majority of public prayers I have heard have not been very meaningful, but there is certainly a place for them, especially in the churches which are built for this very purpose. And despite Nephi’s exhortation “that ye must not perform any thing unto the Lord save in the first place ye shall pray unto the Father in the name of Christ, that he will consecrate thy performance unto thee, that thy performance may be for the welfare of thy soul,” I have always thought that praying before an exam was a little ridiculous. Perhaps because I don’t think I’m taking the exam “for the Lord.” In any case, I don’t think the scriptural injuction requires a public prayer.

    On the other hand, schools should be the place for singing all kinds of Christmas Carols, as well as the great classics of religious and holiday music of all traditions. They should teach the Bible as literature and investigate other sacred texts as well as long as there is no advocacy. Certainly one can hardly teach history without going into the background of the great world religions. Just don’t let creationism into the science classes, please.

38. > But the Constitution disallows the Establishment of any church by the state.

    You mean by the Congress. The First Amendment prohibits the federal government from establishing a religion. In fact, several of the original states had established churches at the time the Bill of Rights was ratified, and they continued that way for decades.

    (Of course, there’s the Fourteenth Amendment’s magical “due process” clause, which incorporates whatever parts of the Bill of Rights the Supreme Court says it does. But does an originalist really want to go down that path?)

39. > I’m sorry, but you can’t object on the grounds that it might offend someone in the audience,
    > because other speakers who are not praying are allowed to do so.

    What I mean by this is that you can’t object to a prayer being given on the grounds that it might offend someone in the audience, unless you would also have grounds to object to a non-prayer speech on that basis. If you believe that the principle of free speech allows a speech to be given at a graduation even if it might offend someone in the audience, then the mere fact that the speech is in the form of a prayer should not make the speech taboo.

40. EJS, give me some credit here, please. I meant “State” with a capital “S” and, yes, there is no reason for an originalist to avoid the Fourteenth Amendment’s incorporation of the Bill of Rights as against the states.

41. A Note from Georgia

    I live down here in the South and work for a local government agency. We pretty much ignore the likes of the ACLU and those kind of meddlers. A few years ago another allied Govt agency that I worked with (that will go unnamed) had unofficial Bible study from 9:00 to 9:30 am every morning. They even made announcements over the intercom system and indicated which chapters were under general consideration that day. If you called or otherwise disturbed these Bible students, which included 95% of the employees during their “morning break,” there was hell to pay.

    I have been asked to pray at our office Christmas party several times and gladly did it. We had working for us a part time evangelical minister who specialized in Summer revivals and he gave us many a fervent prayer at various celebrations. He also had a beautiful voice and often sang these old African-American spiritualistic Christian hymns so beautifully while working. Among his many duties one might argue that he was the office chaplan. We had a retirement party recently for a greatly beloved administrator including a regular little program that resembled a funeral more than anything else. Her minister came to pray and he must have gone on for 20 minutes.This was while everyone was on the time clock.

    When my boss was first brought aboard, he had a pig roast and his assistant who really wanted the top job is Jewish. The Jewish guy came, made a few humorous cracks and then sneaked a couple pieces of the pork. When I teased him about it he asked me not to tell anyone so that it didn’t get back to his wife or his Rabbi. I thought he handled it well, what good would it do to get hostile? Half the AM radio stations are playing church services or Christian music of every genre continually and on Sunday morning you really have to hunt around on the AM dial to not be listening to churchy stuff. Its what people around here want to hear on Sunday morning. If you have ever been around large numbers of Black folks you will know that they are a deeply religious people and they are not afraid to express it.

    The left and right coasts of this country are becoming more and more secular, as are most institutions of higher education. Religion plays less of a role in these places, especially openly expressed religions. This is reflected in the laws people pass and the way they are enforced and it also influences how sensitive people are to various religous practices. In the South and across the heartland, many people are still openly religious and they do not understand why the rest of the country has forgotten God. Mormons in Utah I think are partially in the cultural shadow of California which seems to be the most secularized place on earth.

    People think Mormons have so much influence on every aspect of life in Utah. Nonsense! The many Mormons who leave or are more recently converted tend to live in large cities with lots of other people who have moved in from the coasts. So we Mormons do not often see the depth and extend of the religious feelings of folks across America. We also are told by some of our leaders that we are the only church that stands for anything anymore and this is simply not true. Christianity is by nature evangelical, or in-your-face. It is part of the “go ye into all the world and preach the gospel to every people” idea. Paradoxically it runs counter to the “do unto others as you would have them do unto you” idea.To just live the Christian religion privately and not let other people around you know that you are a devoted Christian goes against one of the basic principles of the religion. If you are feeling uncomfortable about the religious practices of Christians around you, then they are just living their religion.

42. I actually agree with you, EJS, if the speaker just spontaneously gives a prayer as part of her speech. Then it truly is just private speech, which cannot be infringed by the State under the First Amendment. But if it is part of the program, where the state school is saying, “okay, first we’re going to have this prayer by this [Baptist, LDS, Muslim, whatever] graduating student, then that is the state sponsoring prayer. It is not an instance of private free speech.

    As to your originalism and incorporation argument with regards to the Fourteenth Amendment, that cuts to speech too. So if you somehow want to ignore the XIVth and insist on Congress as the only one whose powers are abridged by the First Amendment, then there is nothing (outside of states’ constitutions) that would or should prohibit a state from infringing on First Amendment free speech rights. So prayer as free speech is an incoherent argument under that view.

43. Wow Mike H. … I really enjoyed reading your comment. Sounds to me like someone down-south who says it like it is.

    This line especially grabbed my attention:

    If you have ever been around large numbers of Black folks you will know that they are a deeply religious people and they are not afraid to express it.

    All the talk about values in our country and that Republicans have somehow snagged the religious people. One of my first knee-jerk reactions to this was that African-American Democrats are not afraid to wear their religious feelings, identities etc. on their sleeves — it seems more to me that it is the foremost (non-Jewish) caucasian Democrats who are scared to death of being seen as too religious (though people are noticing Hillary Clinton’s sudden public declarations of religion). Anyway… it seems to me that if Democrats want to go the values/religious route and still be liberal, the obvious thing to do is to give more support to the black Democratic candidates.

44. Anyway… it seems to me that if Democrats want to go the values/religious route and still be liberal, the obvious thing to do is to give more support to the black Democratic candidates.

    This is very intriguing. . . .

45. Mike H.,

    Hello fellow Georgian! Nice to know I’m not the only one in Georgia (or even in our Stake) here at T&S!

    I think the answer to your general point is summed up by John F. in #42. I have no problem with people speaking (or singing) their mind when it comes to religion. The issue is government entanglement. Sounds like I’ll need to make sure to pay my dues to the Atlanta chapter of the ACLU so they can check up on y’all.

    Now who would have thought that John and I would actually agree on something like school prayer?

46. Mark B. brings up a reasonable point, namely, that the current legal situation may not be the best one. Whether one agrees or not, I think that “but it will help the high school students!” is a really bad standard to apply when a teacher decides whether or not to follow the law. What seems reasonable to one teacher may be considered an abomination elsewhere.

    Eric, you keep talking about your experience at Baylor. It’s not relevant, for reasons already noted: it’s a private college, not a public high school. You were an adult, free to take your tuition dollars elsewhere. School children are not, and do not have that freedom. Of the two teachers in your example, how do you know, or how could the teachers know, that all of the students were active, orthodox LDS who were not undergoing spiritual crises and whose parents were not undergoing spiritual crises at the moment? How could either teacher know that the reaction to a teacher-sponsored prayer wouldn’t be confusion, agitation, and reduced exam or contest performance?

    One of the really moving moments I had as a high school student was when the other runners on my cross country team told each other one afternoon how each would seek divine aid for the team in preparation for a big race. Since everyone belonged to different churches, everyone was going to do something different. It was simple and authentic, and it would have been utterly ruined if some coach had tried to organize it. What’s wrong with the examples you cite is the teachers’ presence in them. (The other team also had a Mormon runner. We lost, barely.)

    Also, Eric, in #38 and #39 you seem to refer to a reading of the Constitution according to which the 50 states could choose to establish a state religion. I’ll save the legal arguments for the lawyers and note instead that Mormons have far more to lose in such a situation than we would gain. The same is true of allowing sponsored prayer in public schools. Wir sind alle irgendwo Ausländer.

47. John Fowles, Comment 40. According to an originalist interpretation, which rights are incorporated against the states in the Fourteenth Amendment?

48. EJS: What’s wrong with having a prayer offered at a high school graduation?

    Because the general consensus is that high school graduation is a compulsory setting, and that the compelled attendance thus makes opting out of a state-imposed prayer not a feasible possibility. (at least that’s what the Supreme Court thought in Lee v. Weisman.)

    Nobody here is saying that prayer should be altogether eradicated from public life- only that the STATE should not sponsor it. That automatically makes any experiences shared about PRIVATE schools or universities irrelevant to this discussion, since PRIVATE universities and schools do not represent the state.

    When I was in PUBLIC high school, I prayed every morning before school privately. I had family prayer too before I left. I had family prayer every evening after returning home, and private prayer again before bed. Why in the world would I need to have a state-sponsored prayer at school too- especially when not everyone prayed to the same God or even believed in God? I said private prayers in my heart.

    Not only that, but while EJS may have remained unaffected as a very mature law student by the things around him at a PRIVATE university, less mature and developed high school students in PUBLIC schools may legitimately feel ostracized after such scathingly condemnatory public prayers, or even public prayers not condemnatory. I often felt like an outsider unworthy of fellowship from my classmates after a few baptist led prayers blasted over football stadium loudspeakers in Richardson, Texas. I remember saying amen one time, and having a classmate shake their head and cluck their tongue at me for agreeing with a “true Christian” prayer- I felt like an idiot. I know that non-mormon students in Utah often feel the same because I have talked to several “non-members” who grew up there about this very topic. (obviously, this was pre-Santa Fe v. Doe (the Texas mormon/catholic case)).

    In a perfect world, where Christ Himself reigned, then I would consider state-sanctioned prayer, since the author and finisher of the faith would be the government. But this is not a perfect world.

    To be blunt about it, I think the high school instructors first mentioned here ought to have been disciplined in some way by the school district, even if it was through nothing more than an informal reprimand. It sounds heartless and cruel, perhaps, but there is no reason why people should be forced to listen to prayers in a compulsory public school setting- like a library before an AP test. As calming as the prayer might have been to believers, it may have been just as unsettling to unbelievers. There is no reason why the State should appear to endorse christianity or religion in general.

    That said, we can and should endorse it as much and as loudly as possible in our private lives. As long as it does not look like the State is the one preaching, then preach LOUDLY and often. And for heavens sake- pray always. Just don’t let the public school lead the prayer or sanction it until we actually do someday live in a theocracy.

49. Eric James Stone, Comment 35. I think I have to part ways on the permissibility of the state determining which religion gets to say the prayers. The state should allow anyone who volunteers to offer the prayer.

50. Can someone explain why this is such a huge issue to Americans? In Canada we go to school, then come home to pray if we want to. No one would even think of praying in school. That’s not why you go to school.

51. All this talk about tolerance of publicly-given school prayers might suddenly vanish if Wiccans and the like want to participate. What if atheists wanted to be included too somehow — perhaps by making some kind of public statement of unbelief? And what if some especially cynical person declares his/her belief in Satanism and wishes to offer up his/her prayer? My understanding is that the courts feel obligated to recognize these people on level ground with more traditionally accepted groups. Even if those opposed to school prayers lose in the courts, they might succeed in driving out public prayers by demanding inclusion. If not, I imagine things could get pretty interesting.

    Also, I have to wonder how some evangelicals are going to feel if a Jewish or Muslim person wants to give a prayer that doesn’t mention the name of Jesus Christ? I think most evangelicals would be ok with this but some would no doubt be grumbling.

    BTW, I kind of like the way Jewish people sometimes address God as the “King of the Universe.” At least that’s what I heard many times in a Salt Lake City synagogue’s services I visited more than once.

52. > EJS, give me some credit here, please.

    john fowles: If you’re going to take things extremely literally (see your comment #12), don’t complain when others return the favor.

    > But if it is part of the program, where the state school is saying, “okay, first we’re going to have
    > this prayer by this [Baptist, LDS, Muslim, whatever] graduating student, then that is the state
    > sponsoring prayer. It is not an instance of private free speech.

    And I fail to see why it is perfectly fine for the state school to say, “We’re going to have a commencement speech by this radical feminist lesbian author,” but not to say “We’re going to have a prayer by this Baptist student.”

    Now, you will say that the state is sponsoring prayer in the latter case, while it is sponsoring speech in the first. But since they are both speech, that means prayer is a less protected form of speech than non-prayer speech.

    Do you really believe that prayer should be less protected? Do you believe that was the original intention or meaning of the First Amendment?

    What does an originalist like you think about the tradition of having prayers in Congress? There’s a State-sponsored prayer, and yet I think it’s fairly obvious that those who passed the amendment in Congress did not think such prayers constituted an establishment of religion, as they did not stop having them when the amendment was ratified.

53. Matt # 40: An originalist interpretation of the Fourteenth Amendment (i.e. how the architects of that provision would have understood its meaning, not the Founders) does not need to preclude jurisprudence that incorporates the amendment as against the states, given the amibuity of the language of the Amendment. I assume that you are implying with your question that any true originalist would not find incorporation justified?

54. EJS, I don’t want to have a fight with you or anything, but I was serious with my comment that Baylor is not a good example here since it is not a state school.

55. EJS- re: prayer in Congress, two words:

    “ceremonial deism”

56. Oops, Matt, I was addressing your comment # 47 in my # 52.

57. Jordan wroteL I often felt like an outsider unworthy of fellowship from my classmates after a few baptist led prayers blasted over football stadium loudspeakers in Richardson, Texas. I remember saying amen one time, and having a classmate shake their head and cluck their tongue at me for agreeing with a “true Christian” prayer- I felt like an idiot.

    Very well said. I cannot imagine what pro-school-prayer people can say in opposition to this. As kids we react to things differently than as adults. Like Jordan, I felt like an idiot many times as, e.g., an evangelical junior high history teacher in a pubic school made a mockery of the horrific experiences of my very own ancestors as he “taught” the story of the nineteenth-century goddamn mormons.

58. Mike Heninger: “California which seems to be the most secularized place on earth.”

    What do you base this on? Census figures? “Access Hollywood”? “The O.C”?

    According to the American Religion Data Archive, Utah has the most religious adherents per 1000 population. Then it’s the Dakotas, then Massachusetts. California is down there at #30, but then your great Peach state comes in at #33.

    Here’s the link to the statistics: http://www.thearda.com/

59. John Fowles: I actually agree with you, EJS, if the speaker just spontaneously gives a prayer as part of her speech. Then it truly is just private speech, which cannot be infringed by the State under the First Amendment. But if it is part of the program, where the state school is saying, “okay, first we’re going to have this prayer by this [Baptist, LDS, Muslim, whatever] graduating student, then that is the state sponsoring prayer. It is not an instance of private free speech.

    What if the school put, I don’t know, a “meditation” or “brief thought” on the program, and most of the time the students chose to offer a prayer?

60. “and having a classmate shake their head and cluck their tongue at me for agreeing with a “true Christian” prayer”

    That should be “having a classmate shake HER head and cluck HER tongue at me…”

61. > Eric, you keep talking about your experience at Baylor. It’s not relevant, for reasons already
    > noted: it’s a private college, not a public high school. You were an adult, free to take your
    > tuition dollars elsewhere. School children are not, and do not have that freedom.

    Jonathan Green: I have mentioned my experiences at Baylor three times. (This makes four.)

    My first reference to being at Baylor (comment #11) was in response to a comment which said, “but try putting up with the other prayers when you are the only Mormon in a school.” The implication of the comment was that I did not know what it was like being in the religious minority, when the fact is that I do. It is completely relevant to that issue.

    My second reference to Baylor (comment #15) was in response to someone who said my first reference to my experience at Baylor was irrelevant for similar reasons that you give, and I tried to show how it was relevent as an experience of being in a religious minority.

    My third reference to Baylor (comment #22) was not regarding experience as a religious minority, but rather had to do with the reaction of Baylor students to my position on school prayer, based on the stories I related in my post. None of your objections are relevant to that comment.

    As for your hypotheticals about possible crises of faith among the other students present during the events I related in my post, do you have the same concerns about the effects of non-prayer speech? If not, why not? What is so uniquely bad about prayer that we should ban it while allowing non-prayer speech with similar effects?

62. # 58: Christian- SCOTUS would probably find it OK if the program called only for a brief “Moment of Silence”. But if it said “Moment of Silence or prayer,” as the state of Alabama tried to do to sneak in school prayer again, then that would be unconstitutional. (Wallace v. Jaffree).

63. #60: EJS: do you have the same concerns about the effects of non-prayer speech? If not, why not? What is so uniquely bad about prayer that we should ban it while allowing non-prayer speech with similar effects?

    I know this was directed to Dr. Greene, but I personally am not as concerned about the effects of non-prayer speech. This is because religion can be more divisive than just about anything else- and it becomes a lot more personal when you feel like everyone around you condemns you to your core, since you are a devilish person for not believing (or because they THINK you don’t believe) in the same Deity who they happen to pray to. Religion is a much more handy tool for oppression and divisiveness than most other speech. Hence, the less protected status in PUBLIC school, in my opinion.

64. john fowles: Re your comment #53, what brought that on? When you posted that, it had been two hours and 44 minutes (and 38 comments) since I had mentioned my experiences at Baylor as being relevant to the experiences of a religious minority.

65. > Very well said. I cannot imagine what pro-school-prayer people can say in opposition to this.
    > As kids we react to things differently than as adults. Like Jordan, I felt like an idiot many times
    > as, e.g., an evangelical junior high history teacher in a pubic school made a mockery of the
    > horrific experiences of my very own ancestors as he “taught” the story of the nineteenth-
    > century [explitive deleted] mormons.

    john fowles: Well, I don’t want to make you feel like an idiot, but is it your position that anything that might make kids feel like idiots should be banned from public schools? Or just prayers?

66. I’ve not read through all of the posts, but want to comment on the original.

    1. The first teacher, Mr. Smith, apparently made it completely optional for those who wished to join in prayer five minutes earlier. Thus, it was not a compulsory prayer, and in my humble opinion therefore not a violation of the First Ammendment.

    2. Mr. Jones may have been pushing the law a bit, but I remember being faced with similar situations where pastors were called upon to offer a prayer at the beginning of the football games. They were from one denomination or another, but never the same every time. Personally, I felt no compulsion to even listen, let alone say amen at the end; I didn’t believe they had the proper authority anyway (Not to say they couldn’t or shouldn’t be able to pray, mind you). Those in the library in case 2 were completely free not to listen, not to say amen, and not to participate.

    The First Amendment reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…”.

    Point one: There was no establishment of religion when either of these teachers allowed or suggested prayer. No new church was formed, no one forced to join a church.

    Point two: No one was prohibited from exercising their own religion. First case, those who did not want to join in prayer had that option. Second case, those who did not want to hear the prayer were free to ignore it or even offer their own.

    Point three: In both cases, the individuals in attendance did not have their freedom to speak abridged.

    Point four: I can only assume that the assemblies were peaceable.

    We often overlook the four other parts of the First Ammendment when discussing religion, yet all of them have a bearing on religion.

67. Jordan (#61): I’m not talking about a `moment of silence,’ but a situation where a student is on the program to give a `meditation’ or `brief thought’ over the sound system. I’m interested in understanding John Fowles’ claimed distinction between public speech announced as prayer and public speech announced as something else.

68. “I don’t think that school-sponsored prayer is appropriate in public schools. If students, however, want to band together on their own for prayer circles or for spiritual thoughts, then they should be free to do so, even on school property.”

    John Fowles:

    I’ll have to put on my parka when I’m most certainly sent to hell – It’ll be snowing since we actually agree :)

    How did we get so hypersensitive about prayer and religion (and I include myself in that). Being a teenager is tough work, and if students find a group that helps them fit in and feel good about themselves, why would we stop it – be it a prayer club or a gay and lesbian club. If students take the initiative to form these clubs, they should be supported.

69. As the only Mormon who attended an Episcopal School in high school, I went to the school Chapel once a week with everybody else, and said the Lord’s Prayer with everybody else. I didn’t have a problem with it.

70. Michael-

    You were at an EPISCOPALEAN PRIVATE school, so it has no bearing on whether PUBLIC schools should sanction religion. I also have no problem with attending religious ceremonies of other schools. But if the STATE were to give the impression that it supported only episcopalians and thumbed its nose at people of any other religion, then I would have a problem with it.

    Going to school chapel at a private school where attendance is voluntary and you pay to have the privilege of being there, and where nobody gets the impression that the State is requiring chapel attendance is quite a different matter. This is not a discussion about what we can tolerate personally in our own private decisions, but about what we should have to tolerate at the hands of the STATE.

    John H.- the last time I checked it was not unconstitutional for the school to support a prayer club with state funds. In fact, if the state has opened a public forum and supported other clubs, then it must also support religious ones. (Rosenberger v. Univ. of Va.)

    As far as being hypersensitive about prayer- that is the cost of living in a secular society with supposed separation of Church and State.

71. “Or perhaps it should be “CONGRESS shall make no law.” You can’t really decide these things by appeals to literal or plain meaning.”

    You’re not insinuating that laws a being enacted by other branches of the government are you? ;)

72. Kelly- (#65): It seems conclusory to simply state that what the teacher did was “not an establishment of religion”- the test has never been whether or not the institution implicated has been trying to “establish” a church. The essence of the test is “endorsement” not “church-building”.

73. Jordon,

    I’m sorry, the amendment actually does say “establishment”, and says nothing even remotely close to “endorsement”. If we are going to accept the First Amendment for what it actually says, then that is the way we must read it.

    In either case, neither Mr. Smith or Mr. Jones endorsed a particular religion. Again, Mr. Smith made prayer completely optional, and Mr. Jones could have as likely called on a non-LDS student to pray as not, except for proportionality. Again, Mr. Jones did not endorse the LDS religion or form of prayer, but he did allow freedom of speech.

74. “As far as being hypersensitive about prayer- that is the cost of living in a secular society with supposed separation of Church and State.”

    But the sensitivity is on both sides. Plenty of Christians wouldn’t tolerate prayers to Allah, and most Muslims wouldn’t be thrilled with prayers through Christ. It seems oversimplified to just blame it on the secular Godless heathens who demand separation of Church and State. There’s plenty of blame to go around, IMO.

75. Kelly,

    One of the other lynchpins of establishment clause jurisprudence is coercion. Here is the scenario. You are in a room to take an AP test that you MUST take to get the credit you have been working for all year long. Due to your upbringing, you are not religious, and due to things that happened to you you are actually quite uncomfortable about any kind of religion. Just as you are finally getting in a mode of concentrated relaxation, the teacher (admittedly not of the majority religion) calls on a student to pray. You feel completely out of sorts and uncomfortable, but you can’t just leave. You are coerced to listen. Sure, nobody is pinning you down, but if you left then you would look REALLY bad and may even be ridiculed and harassed by hordes of believers later on. So you stay. That is coercion! It’s certainly more coercive than the situation in Lee v. Weisman, where a rabbi’s prayer in a graduation ceremony was held unconstitutional because of coercion.

    Point: If the government, through the mouth of one of its teachers, forces students to listen to a prayer, how is that not an endorsement of religion?

76. EJS # 63: what brought on my comment 53 was your comment about my taking your comment # 12 literally. In # 53 I was explaining why. Elapse of time had nothing to do with it.

    As to your point about banning everything that might make a kid feel like an idiot, I think that the public schools should generally try to avoid making kids feel like idiots. In the case of school prayer, it is a built-in method of exclusion.

77. Christian # 58: What if the school put, I don’t know, a “meditation” or “brief thought” on the program, and most of the time the students chose to offer a prayer?

    That would be better since the students choose what to do during the time. In other words, the public school is not organizing a prayer of one stripe that will exclude any and all believers of a different stripe, including atheists. There is no reason for the public school to make it a positive agenda to organize school prayer for its students, who have no option to avoid the prayer that is not of their faith and that may even condemn their faith (especially if the prayer is an evangelical prayer).

78. Note that my comments have nothing to do with being unreligious. I think everyone (except our secular government) should be true to whatever religious beliefs they have.

    Everyone should work within their sphere of influence to preach and rejoice of Christ. But that has nothing to do at all with whether or not the government should force its citizens to feel like outsiders through state-mandated school prayer.

79. To add to what Jordan said, which I fully endorse, nothing I have said should be construed as taking a French secular humanist position that would prohibit e.g. a Muslim public school teacher from wearing a headscarf while teaching or a Muslim schoolgirl from wearing one while attending a public school. France has a relatively new law that bans both. Germany’s highest court decided in September 2003 that a state regulation prohibitting a teacher in a state school from wearing a headscarf was invalid because it wasn’t based in constitutional and administrative law grounds. It reserved the right to the states in the German federal system to adopt headscarf bans as they pleased as long as the bans were properly founded in constitutional and administrative law. The German states have done this and public school teachers can no longer wear headscarfs while teaching. This is absurd, in my opinion, because the public school teacher does not need to abandon her own private religious convictions, as long as she is not directing her students to pray or organizing prayers for them or proselytizing to them about the benefits of one religion over another. So let the Muslim school teacher wear her headscarf, but don’t let her proselytize to the kids. The important thing is not to put children into a position where they cannot avoid a state endorsement of a religion that they do not share and that implies, by its very nature, that any other religion isn’t the right religion.

80. To clarify, not all German states have enacted a ban–but many have.

81. Down here in Oklahoma where football is king and Jesus is everybodies homeboy, prayer is a normal part most school activities. I remember saying the Lord’s prayer before every football game while putting my hands on the pads of my teammates. I really enjoyed and felt it brought it us together. We even had a muslim guy on the team that would join in with us. He would lead prayer sometimes. I thought that was pretty cool. The prayer was encouraged by the coach, but no one ever was offened because we would have done it with or with out his appoval.

    Another thing I remember about football is that at the beginning of the year the coach (a chatholic) would give us a talk about the team rules and standards. He gave us a list of priorities that we were to adopt, namely: God (faith), family, school, football, friends, girlfriend. Whether this was actualy internalized and applied is up for debate, but the point is that the coach encouraged us to put God or our faith first. Did anybody get bent out of shape by it? No! Not even the muslim guy. Along with my parents, bishop, and church leaders, it was nice having people out side of a church encouraging such behavior. As teachers, they never enforced their set of beliefs on students, just encouraged to find and live their own.

    Speaking of Oklahoma and football… here at OU were still lamenting the bashing the Sooners took. Some say OU lost because of the arm of Matt Leinhart, others the tenecious D of the trojans, but the real reason is Norm Chow. USC has a temple endowed priesthood holder recieving revelation. Even Adrian Peterson is no match to “dews of heaven”that fall on Chow’s mind. Dang.

82. EJS # 64: sorry to have done this to you but you fell into my trap. By deleting the expletive in my paraphrasal of my junior high public school history teacher’s description of the Mormons, you have added support to my point. You were able to delete the offending words. A child in a public school classroom does not have that liberty and, it is true, perhaps could make a valiant stand against the bigot in front of the class, but why should that burden lie on the child when it is perfectly reasonable to prohibit such religious bigotry both in classroom instruction and in school-sponsored prayers? What a teacher says in the classroom, the state is saying. Essentially, in junior high, the state of Texas told me, through a bigoted evangelical history teacher, that mormons were [expletive] and [expletive] and they weren’t really victims in Nauvoo, or Missouri or anywhere else but it was their own fault b/c JS started a new religion just so he could have sex with under-aged girls. The child in a public school classroom cannot bleep the offensive content like you were able to select the word to be deleted out of the description I provided.

83. Brett-

    It does not matter if nobody “gets bent out of shape.” It only matters that the state is appearing to favor one brand of religion over another. Roughly speaking, that is enough for an establishment clause violation under current jurisprudence in the context of school prayer.

    That is great that you footballers would have offered the prayer even without the coach. You should do that! That is not state-sponsored religion- nothing wrong with that. Only when the coach, as the representative of the school, comes in and leads it.

    I do not dispute the value of putting religion first or anything associated with it- indeed, it is one of the main commitments of my life to put faith first. But the PUBLIC SCHOOL should not be telling the students to do it. Even if it doesn’t do so in every instance, it can create great divisiveness.

84. john fowles: I should have been more specific as to what I was referring to when I said you were taking things extremely literally. I was complaining about your interpretation of my question “So you would have prohibited Mr. Smith and Mr. Jones from doing what they did, and punished them for doing it?” You replied, “…I would not prohibit them from doing it or punish them because I would lack any standing to do so. But I would not disparage a student seeking to enforce his or her rights against such school-sponsored prayer.” I think it was fairly obvious that I was asking about your policy recommendations, not whether you personally would have filed an actual lawsuit over incidents at which you were not present.

85. John, your experiences are like my wife’s where she was the only mormon and sat next to the only jew and each day’s prayers always included “please bless the damned mormons and jews who are going to hell” …

    Or a Catholic client of mine whose child was sent in for counsel for disagreeing with a school teacher about Mormons being evil cultists and being subjected to a couple hours of deprogramming.

    Note that in the South Texas case is was a combination of Mormon and Catholic students complaining about the prayers.

    I miss prayers as a part of public life, but I also appreciate the ways that they are so often abused.

86. Jordan,

    I have been out of High School now for nearly 30 years, but I assure you I remember quite well my ability to tune in, or out, what the teachers had to say. If I did not want to listen, I did not listen.

    As the father of 4 teens, I can assure you that selective hearing is alive and well in our youth. Any teen sitting in a library waiting to take a test has the ability to tune out what is being said. Coersion can only exist if you have no other options. Teens have options, and all too frequently they use those options to tune out anytime what is being said crosses what they choose to hear.

87. > sorry to have done this to you but you fell into my trap.

    john fowles: Oh, how clever of you. If only I hadn’t quoted your comment, but had merely referred to it by number, all this could have been avoided! I am undone! Your argument devastates mine. I bow before your superior intellect, because you have the guts to use profanity on Times and Seasons and I don’t.

    Please, take a few minutes to gloat over your victory. Do the Snoopy dance, if that makes you happy. The rest of my comment will still be here when you get back.

    Look, I’m sorry you had a bad experience with a bigoted teacher. That has obviously colored your perceptions with regard to this issue. I happen to have had some good experiences that have colored my perceptions on this issue.

    Your policy seems to be that because some prayers can be bad, any organized prayers in public schools must be banned. My policy is that since some prayers can be good, some organized prayers should be allowed in public schools. Since the U.S. Supreme Court didn’t rule school prayer to be unconstitutional until 170 years after the establishment clause was written, it seems to me that you have allowed your emotional reaction to your experiences to override your philosophy of originalism in Constitutional interpretation.

    I consider myself an originalist, too. One of the reasons I am an originalist is because I believe the meaning of the Constitution should not change due to my personal policy preferences, or anyone else’s, for that matter.

    But maybe I’m wrong. Is it your position that school prayer is bad policy, but that it should not have been ruled unconstitutional? Or do you have some evidence that state-sponsored prayer was against the original meaning and/or intent of the establishment clause?

88. Since others have brought up school prayer and sports, here’s my story:

    During my sophmore year, a group of evangelically-inclined varsity athletes began leading pre-meet onfield prayers. Perfectly legal, as it was all student initiated. The students leading the prayers weren’t my close friends, and I didn’t feel entirely comfortable with the prayer meeting, but I didn’t get too concerned with it.

    After one meet, our coach blew a gasket at the prayer leaders. As a Christian, he was ashamed and disgusted: after they had made a big show of their Christianity, they had gone about mocking and ostracizing the lesser JV athletes as usual. Who knew how long the slowest JV 2-miler had taken to finish the race? Where had they been when he crossed the finish line? (Actually, I knew his time, but the coach then directed the question at everyone who wasn’t a distance runner.) If they were going to proclaim themselves Christians, he demanded that they take it seriously. Before the meet the next week, the coach offered the team prayer himself. Completely illegal, but, I believe, very educational. The practice of team prayer fizzled out shortly after that.

89. I suspect most of us outside of Utah have had experiences which color our views. I can recall a history teacher announcing in class that Mormons worshipped Joseph Smith. She was quite embarrassed when I raised my hand, told her I was a Mormon and then corrected her. There’s always that sort of thing Mormons are going to experience when there are few Mormons. In my view it builds better Mormons. But I’m a tad biased towards the “mission field” in some ways. (Indeed I’ll confess to worrying at times about raising my son in Utah)

    It seems to me that one could easily come up with a way of having prayers that wasn’t offensive. I think the problem is that a certain subgroup of very conservative Christians isn’t really concerned about prayer, but on making themselves noticed and only their views made acceptable. While I think a lot of the recent fervor over Evangelicalism is wildly exaggerated and misplaced, there is a minority of that community that is more than a little absolutist. That movement (of the extremists, not Evangelicals in general) has to be a worry. And that’s the real issue, as I see it. Not whether there is a kind of prayer that ought not hurt anyone’s feelings.

    By the same measure there are some studies coming out suggesting that especially in areas with very conservative fundamentalist Christians that many teachers won’t even teach anything about evolution.

    The fact of the matter is that these fundamentalists of this absolutist stripe are in radical opposition to the spirit of the country. And it is a big worry. I think that the left in particular overexaggerates it. But the fact is that many of their actions are hurtful and do impose religious beliefs in state environments.

90. From the perspective of a homeschooling parent who thinks that teacher-led school prayer is a bad idea, I think that from a policy standpoint, allowing teachers and other authority figures to initiate prayer in the classroom is a surefire way to weaken the public schools. If I felt my kids were being proselytized in the classroom, I’d pull them out, and I don’t think I’m alone in that feeling. And I don’t think allowing school-sanctioned prayer alone is enough to bring back the evangelicals who have fled the evil secular government schools. It’s a lose-lose situation.

91. Eric, Kelly, word to the wise here: your life experience gives you a huge amount of credibility on a lot of topics, but constitutional law isn’t one of them. On those issues, there are a good number of people here who actually know what they’re talking about; john&jordan are only two of them. They aren’t just quoting cases that they pulled off Wikipedia. Go ahead and argue on the basis of your personal experience, but I’d steer clear of legal matters.

92. Bryce, agreed. That is one of the few situations where I would consider homeschooling.

93. At what point does non-prayer speech become prayer speech? If non-prayer speech is okay, but prayer speech is not, what is the line that someone cannot cross?

94. > Eric, Kelly, word to the wise here: your life experience gives you a huge amount of credibility on a lot of topics, but
    > constitutional law isn’t one of them. On those issues, there are a good number of people here who actually know what
    > they’re talking about; john&jordan are only two of them. They aren’t just quoting cases that they pulled off Wikipedia.
    > Go ahead and argue on the basis of your personal experience, but I’d steer clear of legal matters.

    Jonathan Green: Perhaps you may not grant me a huge amount of credibility on Constitutional law, but I believe my law degree from Baylor and the reading that I have done over the years allow me to at least comment competently on such matters.

    I have expressed opinions about how I believe the establishment clause should be interpreted differently from the way the Supreme Court is interpreting it, but as far as I can tell, I have not misinterpreted that interpretation.

    If you (or anyone else, for that matter) can point to any statement I have made regarding the law (or anything else, for that matter) that is factually incorrect, I will retract it.

    OK, OK. You caught me. The due process clause of the Fourteenth Amendment does not, in fact, have magical properties. I apologize to those who read that statement literally and were hoping to use it to cure warts or some such.

    > I think that from a policy standpoint, allowing teachers and other authority figures to initiate prayer in the classroom is
    > a surefire way to weaken the public schools.

    Bryce I: That’s an interesting theory, but I don’t think history supports it. The status quo prior to the Supreme Court’s decision outlawing school prayer was the very situation that you claim would weaken the public schools and cause a rash of homeschooling. If your theory is correct, then there would have been a large homeschooling movement prior to the Supreme Court’s decision, that then faded as parents realized public schools were safe from religion. Maybe I’m wrong, but I believe that’s counterfactual.

95. Great, Eric, thanks for pointing out the law degree. I’ll scurry away with the rest of the primitive mammals while you dinosaurs duke it out. Be sure to count all the eggs in the nest when you get back, though.

96. Okay so maybe I am a dim-witted college student that has no place tangling herself in a blog that I have no history in, but this is something that just boggles my mind.

    So the first amendment was put into place in order to give people the right to free speech as long as it did not present a clear and present danger.

    Also, the part about freedom of religion states that people are allowed to worship however they wish. Okay, so I do not believe that it says freedom FROM religion. Some people may think that it is just a fairly asinine difference in rhetoric, but in a country that is so anal on wording, blah blah blah, the difference is clearly there.

    Now if a prayer is offered in school and one would have to sit there and participate in it, it would be somewhat like going to a cafeteria to eat a vegetarian meal because they want to accomodate those who wish to not eat meat. Okay, I am not a vegetarian, so thus vegetarians are pushing their beliefs onto me, as one who offers a public prayer is pushing their beliefs onto others. So why is it that society upholds one and views the other as outright illegal?

    Grant it as members of the church, we are asked to support our government and their laws, even if they seem contrary ideologically, as seen in East Germany, for even in extreme cases as that, a greater good eventually surfaced, i.e., the temple. But also isn’t opposition intended as a means of bringing about change? As my example earlier, why is it wrong to expose people to religion through the means of prayer?

97. Jonathan- Correct me if I am wrong, but this blog is an opportunity for individuals to come and hash out ideas, advance thought and opinion, and throw their vegetables into the pot.

    What I have advanced has been exactly that. My opinion based on my understanding of the First Amendment. I realize that the Supreme Court has advanced opinions and interpretations of what they believe the First Amendment means, but they were wrong on Roe v. Wade, and perhaps they are wrong here as well.

    I take the First Amendment at face value, considering the words that were used by our founding fathers, and exacting a meaning from each. When the first amendment says “shall not establish”, and I find the word establish to mean something along the lines of “make, set up, construct, build, etc., then I don’t think I am off track when I say the a teacher offering a prayer in a classroom setting, or calling on a student to do so, “establishes” a religion.

    Bryce, prayer was “eliminated” from the school system in the 60’s if memory serves me right. From that point in time till today, there are few that would argue that the education of our youth has gone right down the perverbial toilet. Hence the influx of private, charter, and home-schooled youth.

    Anytime we remove God from any institution, be it school, congress, the inaguration of a president, we only hurt ourselves and deminish the help we so desparately need in this world.

98. Pardon me if someone has already said this, but stories like Eric James Stone’s are still happening all over the country. I have teacher friends who says some teachers in the South begin class with prayer and she sees “Jesus Lives” posters hung in gyms and hallways, etc. Court cases have restricted some of this expression but it goes on anyway in majority communities.

    Before we married my wife taught in the Chicago Public Schools, in an all-black West Chicago high school in 2002-3, and she says school assemblies began with prayer. When she asked one of the teachers about it, this teacher (a very articulate African American), morphed into ebonics, saying, “Honey, don’t know you Blacks never followed no rules?”

99. John Fowles, Comment 52. My argument is that an originalist interpretation of the Fourteenth Amendment would be the same in 1870 as it is today. The rights to be incorporated against the states would be the same in 1870 as it is today. The best way to know what the Fourteenth Amendment meant when it was drafted is to see how it was interpreted shortly after it was adopted. Nothing in the Court’s subsequent use of the Fourteenth Amendment, I don’t believe, affirms that view. (I believe originalism to be very static. “Enlightened interpretations of the original meaning” are merely originalist’s language for the same impulse driving the realist, dynamic Constitution.)

100. Jonathan Green: I wasn’t the one questioning people’s credentials for discussing legal issues. You were. In discussions like this, I tend to place more emphasis on what a comment says than on who made it.

101. I don’t think that there should be teacher led prayer in public schools, but not because that is the original intent of the amendment or because I worry about coercion.

     First, it is pretty clear to that the original intent of the establishment clause was jurisdictional. The words say “Congress shall make no law respecting yadda yadda yadda.” The most important word in the phrase originally was “Congresss.” The point was that the federal government couldn’t establish religion. It was just fine for the states to do so. State establishments eventually died a natural political death during the Jacksonian period, largely as a result of the rise of evangelical movements, which saw the state sponsored churches as moribund spiritual failures. In other words, establish religion in the state was killed off by Baptists, Methodists, and (to a very very small extent) Mormons, who basically were from the same political and religious demographic. (Mormons were Jacksonian Democrats in Ohio and elsewhere and it was the Democrats who killed off the established churches.) This means that solving the question by reference to the original intent or original meaning (different concepts — I prefer meaning to intent, although I tend to be a soft originalist rather than a hard one) of the Fourteenth Amendment are difficult. It was a sleeping issue at the time, so I doubt that you can find any real evidence as to the intent or meaning of “due process” in this time. Finally, although I think that contemporary practice can be useful guide to meaning, I don’t think it is dispositive. Laws are often primarily about changing practices and they do so slowly.

     Second, a lot of establishment clause jurisprudence talks about coercion, but I think that this is the wrong analytic framework. If someone is being coerced into religion, I think that is properly a matter for the free exercise clause. Rather, I think that the establishment clause should be understood as a content based restriction on the speech of the government. Normally, the government can say just about anything that it wants to. It can tell people that aboortion is good or that abstinence is good. It can tell people to spend more money or spend less money. The content of its speech is dictated by politics not constitutional law. The establishment clause, however, requires that on the subject of religion, the government is not allowed to express an opinion. Ultimately, I think that the basis for this is theological. We ought not to trust Caesar to tell us how to think about God. Indeed, for the state to talk of such things is in a sense blasphemous.

     Hence, the question of school prayer ought to be resolved on the issue of whether or not the prayer at issue is best interpreted as the state expressing its opinion on matters of religion. I take it that teacher sponsored prayer is pretty clearly state speech. Student prayer is generally not state speech. The difficult cases are where you have student prayer in some sort of setting formally created by the state — e.g. football games, graduation ceremonies, etc. Ultimately, I think that the proper resolution of these cases ought to turn not on our interpretation of what the constitution means, but on our interpretation of what these ceremonies mean: Are they instances of the state praying or expressing its religious opinions. If so nix them.

     A final point, I don’t think that judicial review is the end all and be all of a properly functioning liberal democracy. I actually am a bit of an admirer of Westminister style democracy. Hence, one can have this debate outside of the context of constitutional doctrine and interpretation. We simply have the argument in general terms of political morality. In those terms, I am not a fan of prayer in the schools. The idea that I turn my children over to the state for a good twelve years of education and (on occasion) indoctrination is not something that I am entirely comfortable with. Given the fact that I have limited faith in the public schools ability to teach my children basic math and science or provide them with a bit of history and literature, I am even less saguine about their ability to get theology right.

102. Rika (#95): why is it wrong to expose people to religion through the means of prayer?

     It’s not! Nobody, even the separationists like me, are claiming that it IS wrong to expose children to religion by means of prayer. I think prayer is a necessary, an essential part of life. I just don’t think the STATE should be the one exposing people to religion by means of prayer. That’s why we have missionaries, churches, and our good examples.

     Why do so many religious people feel it necessary to bring the State into religious instruction? Can’t we do a good enough job in our homes, churches, synagogues, etc? In a society with so many different religions, involving the State in beliefs held most personal and dear over almost anything else will necessarily make some people feel excluded and untolerated, even if there are people who don’t get offended- there are people who do. I have nothing against the State being involved in religion during Christ’s millennial reign, but until then why can’t we keep the religious fires alive and burning in our homes, families and churches, and leave the State completely out of it. Really- when the State pretends to take up religion, it almost does seem blasphemous.

     In the meantime, I will do all I can to spread the gospel of Jesus Christ in my own sphere of influence. I will not entrust this sacred duty to the State- I will teach my children to pray at home, and hopefully expose their friends to religion as well- from my home and by inviting them to church- not by forcing it on them in school.

103. Well put, Nate. How would you (or any other law nerd present) sort out the apparent conflict between the aspect of the Religion Clause you discuss (a rule requiring neutrality in government speech about religion) and the accomodation issue? Are accomodations of religion a form of government speech that privileges either religion in general or the particular religions that benefit? Thinking in this vein, I am looking forward to (half dreading) the Supreme Court’s resolution of Cutter (the case addressing the Establishment Clause Challenge to RLUIPA, for those non-law-nerds present). To tie my query into this thread, do you think that the school prayer issue can be cast in terms of accomodation?

104. I probably should have done this when writing my original entry, but I decided last night to see what I could find on the issue of school prayer by searching the Church’s online Gospel Library.

     The following seemed to me to be the clearest, from a 1990 Ensign article by Elder Dallin H. Oaks:

     When the school prayer cases were decided, I interpreted them to forbid state-authored and state-required prayers. As such, the cases, I thought, were correctly decided. What I did not foresee, but what was sensed by persons whose vision was far greater than my own, was that these decisions—defensible and probably even essential as rulings on the facts before the Court—would set in motion a chain of legal and public and educational actions that would bring us to our current circumstance, in which we must reaffirm and even contend for religious liberty.

     In short, many understand the law today as being hostile rather than neutral toward religion—as forbidding all public prayers rather than simply prohibiting state-authored and state-required prayers in public schools. Instead of just preventing instances of state-sponsored religion in the public schools, the school prayer cases have unleashed forces that have sometimes been used to prevent the free exercise of religion.

     At the time the first school prayer cases were decided, President David O. McKay saw the direction of those decisions with prophetic vision. In December 1962, he said: “By making that [New York Regents’ prayer] unconstitutional, the Supreme Court of the United States severs the connecting cord between the public schools of the United States and the source of divine intelligence, the Creator himself.”

     Then, he offered this farsighted caution: “By law, the public schools of the United States must be non-denominational. They can have no part in securing acceptance of any one of the numerous systems of belief regarding God and the relation of mankind thereto. Now let us remember and emphasize that restriction applies to the atheist as well as to the believer in God.” 4

     Six months later, just after the Supreme Court’s decision forbidding Bible-reading in the schools, 5 President McKay said:

     “Recent rulings of the Supreme Court would have all reference to a Creator eliminated from our public schools and public offices.

     “It is a sad day when the Supreme Court of the United States would discourage all reference in our schools to the influence of the phrase ’divine providence’ as used by our founders of the Declaration of Independence.

     “Evidently the Supreme Court misinterprets the true meaning of the First Amendment, and are now leading a Christian nation down the road to atheism.” 6

     It is clear from President McKay’s references that he was concerned about the direction and long-range effect of these decisions. History shows that his concern was well founded.

     Now, I’m not claiming that the above position is the official position of the Church on the issue. And the fact that there are few results when searching the Gospel Library for “school prayer” probably indicates that the issue is not one of high priority for the Church. Still, I think it’s nice to know that those of us here who have expressed support for some form of prayer in public schools are not completely alone in our thinking.

105. EJS-

     I am not arguing against “some form of prayer in public schools.” Only against prayer led by school officials or at official school functions.

106. But that misses the point, Jordan, of Elder Oaks’s piece. The problem is that finding the Regents’ Prayer unconstitutional (which E. Oaks agrees probably had to be done, given the facts of that case) has started us down the road that virtually excludes any positive mention of religion in the public schools. And that, it can be argued, represents a replacement of the vague Protestant Christianity of the pre-1960 public schools with a new religion: irreligion.

     Perhaps prayer is the wrong place to start. What about Christmas? Is it impermissible for public schools to have a Christmas assembly? Or to have Christmas or Easter holidays? In NYC, we no longer have Christmas break. It’s Winter break. Same with Easter. And God help you (because the Dept. of Ed. won’t, if you have music that goes any deeper into religion than “Rudolph, the red-nosed Giuliani”. (Actually, I made up that last bit.) All these things appear to be the long-range effect of the school prayer and bible reading cases that the Court decided 40 years ago.

107. My point on homeschooling and the issue of school prayer was not very clear. I figured it wouldn’t be. Here’s another attempt:

     The homeschooling movement was fueled primarily by evangelical Christians who were dissatisfied with the public school curriculum and environment. The assault on prayer in schools was certainly a contributing factor to their discontent.

     I don’t think anyone will argue that the national school prayer debate is largely a battle between the Christian right and everyone else. As such, school prayer becomes associated with a host of other issues – creationism/intelligent design/evolution, sex education, and the like. For the most part, the evangelicals have been unsuccessful in generating broad national support for their positions, or at least have been unsuccessful in creating the changes that they want. As a result, homeschool/private school/church school options have proliferated and flourished.

     Now that public school alternatives have been established and are readily accessible, anyone is free to take advantage of them, including those who do not agree with the agenda of the Christian right. So a movement in the public schools allowing teacher-led prayer, the teaching of creationism,and abstinence-only sex education would drive children in those families out of the public schools. And given the level of mistrust of government-run schools of those who have already opted out, I can’t see many of them running back even if the environment is more friendly to their beliefs.

108. Jordan,

     I apologize for not being precise enough in my statement. I know that nobody here is arguing against allowing completely private prayers in school. So in the course of this discussion, I tend to think of “prayer in public schools/school prayer” as being of the type there is an argument about — some form of prayer in which there is state action involved.

109. Bryce I: Thank you for expanding on your original stament. I can see your point, now, and your theory makes sense. The real question is how big the impact would be, within the range from “negligible” to “complete collapse of the public school system.”

110. Eric, I wasn’t being sarcastic. I never, ever argue points of law here. I’d look like a fool if I tried. When legal discussion comes up, I sit back and watch, and often learn something from it (see: #100). If I want to disagree, then not on matters of legal interpretation. In the legal threads, I limit myself to witticisms that are the delight of all. I did try to check your background a bit on your blog, but I didn’t find the law degree on there, and the guest poster bio had scrolled off the screen, and I had forgotten what brought you to Baylor in the first place, it was late, I was tired, sorry, my bad. Go ahead and argue with j&j, esq., and I’ll watch and learn. I’ll disagree, too, because I think you’re wrong on this one, but I won’t say word one about how to interpret the constitution.

     Kelly, some of the head honchos and regular commenters have invested years or decades in studying and applying the law. If I tried to argue legal matters with them based on my passing acquaintance with it, it would probably seem presumptuous and disrespectful of their invested time and effort. If I didn’t agree with something, I’d phrase it in the form of a question (“But doesn’t ‘establishment’ mean…?”) and be ready for someone more informed than I was to set me straight. Your experience as a bishop gives you a lot of authority on a lot of issues, but not on the law. You can insist that your interpretation of the first amendment is as valid as anyone else’s if you want, but you’ll look foolish, and the level of conversation here will decline, and that would be sad.

111. I grew up in a predominantly Catholic area in HS and before every basketball and lacrosse game I played, the team gathered together for “The Lord’s Prayer”. As a youth in the LDS, Church it was a little odd to me, but over time I came to appreciate the fact there was some sort of prayer/recognition God (Nevermind that immediately after the Amen, everyone usually popped up hooping and hollering, butting heads and so forth). I wonder now if those coaches have lost their jobs for that practice (which would sadden me).

     I can take/understand the ‘separation’ argument to a point, but it is obviously being pushed too far in many cases. Especially when you consider (granted, I’m taking an ex-lawyer/talk-radio host at his word for this, but) ‘… the words “separation of church and state” do not exist in the United States Constitution?’ (http://boortz.com/nuze/200412/12252004.html … Read the section entitled ‘The Grinch’.

     So …. what is the exact wording and where is it?

112. Jason,

     You can find the radio host’s words, but you can’t find the Bill of Rights?

     “Amendment I

     Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

113. To fill in a little my questions above (#103):

     I propose that permitting student-initiated/ student-led prayer is a permissible accommodation of religion, while teacher-initiated/ teacher-led prayer is not. Does Nate’s point about relying on a reading of the actions in each case (is it the school making the statement or merely permitting others to make it?) explain the difference between the two?

     If so, policing the line between accomodations and establishment clause violations seems to depend on a judgment (which will usually be implicit) about how much action the school can take before accomodation turns into non-neutral speech. Thus, I still don’t see much of a clear rule here that can be used to predict outcomes in particular cases. Instead, there is likely to be much litigation on fact-issues, the ultimate resolution of which may come down to who appointed the members of the reviewing panel (or in the rare case, convincing five or more Supremes).

     It strikes me that this is a problem (one of many) of a Religion Clause jurisprudence in which (a) neutrality figures prominently on both sides of the traditional divide (Free Exercise and Establishment); while principles of freedom/ liberty/ autonomy have been marginalized.

114. Reply to #58. I appologize. I was going on intuition, feelings, impressions.

     I retract the crack about California. I really don’t know jack s*** about California beyond having lived there a month while in the military about 20 years ago and my folks lived out in the central valley for a few years. I based most of my impression on Hollywood antics and some of the things in the news about San Francisco.

     It does seem to me that Utah is more like California than like Georgia on this topic for what ever reason.

     As to the rest of the response, leave it to a Mormon to try and measure religion with numbers, rank states, etc. I think there is a big difference between percentage of religious adherents and how religious they are and also how they express it.

     I think many of the LDS folks who move here from all sorts of places are impressed with how openly religion is expressed here with little regard to the complex arguments iterated on this thread.

115. Nathan (#112)

     I can easily find the Bill of Rights. (for example, http://www.law.cornell.edu/constitution/constitution.billofrights.html), but that wasn’t my question. In fact, if you go to Google type in the phrase “no law respecting an establishment of religion” and you feel lucky, you get the same URL. But … without knowing the wording or the fact that it’s in the Bill of Rights, it’s kind of hard to match it all up … hence my question. I know the host’s stuff because I read it on a semi-regular basis.

     My reasons for asking? 1) I try not to weigh in before becoming educated 2) I did not know exactly where it was and had not made the time to research it all out 3) I am aware of #2 and capable of admitting it.

     Thanks for the response … I think.

     Cheers!

116. Re #104, the church did issue a statement on prayer on October 27, 1990 to members in the United States (note the statement’s use of language from Elder Oaks’ address):

     “The Church of Jesus Christ of Latter-day Saints has always emphasized the importance of prayer, including prayers offered in any public setting in which they are legal.

     The Supreme Court of the United States has clearly forbidden any audible prayers in public school classrooms. We encourage all to observe that ruling.

     The constitutionality of prayers in public school graduations and other high school events is still before the courts in a variety of cases of differing circumstances. This is a national issue. We welcome the opportunity for duly constituted authorities to examine the educational practices and religious traditions of the nation and to clarify the law on this important subject.

     Where a prayer is legally permissible – and the Supreme Court has not outlawed prayers at legislative assemblies or other public meetings – we believe no one should be required to modify the content of the prayer he or she chooses to offer regardless of religious affiliation. Prayer is too sacred for its content to be the subject of a lawsuit.

     In discussion of these issues, we need goodwill and considerate behavior on the part of all.

     As the ruling principle of conduct in the lives of many millions of our citizens, religion should have an honorable place in the public life of our nation, and the name of Almighty God should have sacred use in its public expressions.”

     The church also issued a statement in December 1993 following a Utah Supreme Court ruling on prayer in public meetings:

     “We are pleased with the Utah Supreme Court decision allowing prayer in public meetings. We also reaffirm the longstanding position of The Church of Jesus Christ of Latter-day Saints on the overall issue of religion in public life.

     Under the U.S. Constitution, government must not sponsor religion or coerce the choices of individuals in religious matters. It is equally important that government not be seen as hostile to religion or the religious exercises of its citizens.

     The right to free exercise of religion should not be more restrictive in Utah or any other state than it is in the nation as a whole. Religion should continue to have an honorable place in the public life of our nation. There should be no bar to invoking and acknowledging the blessings of Almighty God by prayer in public settings. This, of course, should be done in a manner that respects the voluntary character of prayer and the religious diversity of the community.”

     The First Presidency also issued a statement on religion in public life on March 9, 1979.

117. If an atheist wants freedom from religion in the public sphere, and a Christian wants freedom to exercise his religion in public, shouldn’t the Christian defer to the wishes of the atheist? Apart from the Christian’s avoiding offense and all that, an atheist gets no reward for nourishing a persecution complex; he just gets irritated. The Christian, on the other hand, reaps substantial rewards. 2 Cor. 12:10: “Therefore I take pleasure…in persecutions, in distresses for Christ’s sake: for when I am weak, then am I strong.” There’s plenty more of that in the NT.

     We seem to be living in a particularly religous phase of an already religious land. We can pray and proclaim practically everywhere. Even for Mormons, a good dose of persecution is getting harder to come by. By carving out a space for prayer in public schools, are we robbing ourselves of a rare chance to experience persecution? I like secular schools as a reminder that we are not of this world.

     (And, Kelly, I’ll apologize for the last couple of you-directed posts. While a great function of T&S is to help one discover things that irritate one without one having known it before, I realize now that I’ve had this conversation before, and I don’t need to repeat it here, and I’ll just mind my own business. Please, I think you were about to say something…?)

118. Jason (#115),

     In that case, I still don’t understand your question. What “exact wording” are you trying to find? I don’t expect citizens to have the Constitution and Bill of Rights memorized (I know I sure don’t), but given that we’ve been referencing the First Amendment from the git-go, I’m still unsure what you were looking for.

     Or were you looking for the origin of the phrase “separation of church and state”? It originated in a letter written by Jefferson, explaining the intent behind his input into the First Amendment.

     http://www.usconstitution.net/jeffwall.html

     (Man, how did any of us ever feel smart before Google?)

119. “In the meantime, I will do all I can to spread the gospel of Jesus Christ in my own sphere of influence” (#102)

     Okay well, if one were to take it upon themselves to spread the gospel of Jesus Christ in their own sphere of influence, as we are commanded to, what if someone had a job working for the State? Would they be exempt from spreading the gospel in their sphere of influence?

     I was exposed to to times and seasons through a good friend of mine, he is my home teacher and we have a good time discussing philosophy and how church fits into life, etc etc, and was excited at first at the idea of a blog where people could come together to discuss opinions and to further formulate our beliefs and morals. The more I read and understand, not just on this blog but other blogs, I am beginning to see it as a forum for people to attempt to sway others to their opinions and further polarizes opinions, not as a place where people go to hear other opinions and become exposed to other ideas outside of their normal sphere. Although I am not insulting anyone here, I grow weary of reading arguments disguised as discussions.

120. Okay well, if one were to take it upon themselves to spread the gospel of Jesus Christ in their own sphere of influence, as we are commanded to, what if someone had a job working for the State? Would they be exempt from spreading the gospel in their sphere of influence?

     NO. You would do it on your personal time- with friends and neighbors, etc. Just like all of us.

121. NO. You would do it on your personal time- with friends and neighbors, etc. Just like all of us.

     Is work exempt from your sphere of influence? My father converted one of his co-workers-would that be considered spreading one’s self thin?

122. Rika,

     I hope that I have not made you feel this way. I saw this thread as a policy discussion of current first amendment jurisprudence, not as an opportunity to further hone beliefs and morals. I may have been mistaken. Sorry.

123. Did he do it in the name of the school district? I doubt it. So that’s fine! As long as there is some notion of individual action. My only point is that the public school should not be initiating such discussions. So wonderful conversions of co-workers seem beyond the scope.

     I am very happy to hear that about your father, and certainly meant no disparagement to him through a narrow discussion of the merits of current first amendment jurisprudence in the Supreme Court.

     EJS was trained as a lawyer, and I was addressing (mostly) his initial post. To any extent that you felt personally engaged, I sincerely apologize.

124. When I was in high school, there was a “Christian fellowship” group that met every Wednesday at lunchtime in one of the classrooms. This was a school-sponsored club, just like all the many others that are found at any high school. Of course, no one was forced to attend, although there were occasionally a few signs posted advertising it (mostly so students would know it existed, I suppose). This sort of thing seems perfectly fine and reasonable, as well as any prayer or religious discussion initiated by students.

     However, I don’t understand why people think it is appropriate for teachers or other school officials to lead any sort of prayer or religious discussion, at any sort of school function, whether it be during class time or at a football game. There are bound to be those in attendance who are not of the “correct” faith, and who do not necessarily want to hear what would appear to them as official school sponsorship of a certain religion. For example, I think many conservative Christians would be (rightly or wrongly) offended if an Islamic prayer were offered, among other religions or belief systems. Why, then, is it acceptable that the “accepted majority” religious view be expressed?

125. Shawn wrote I propose that permitting student-initiated/ student-led prayer is a permissible accommodation of religion, while teacher-initiated/ teacher-led prayer is not.

     This is what I’ve been arguing all along. I’ve also been prompting the school-sponsored prayer supporters to offer a reason why it is or would be a good thing for the state to sponsor a public school prayer. The answer seems to be some vague dooms-saying about our plight as a nation because teachers are no longer allowed to coerce students to listen to the prayers of the locally favored denomination.

126. First, Jonathan- I understand that there may be constitutional lawyers discussing the issue at hand on this thread. And that is great. However, your opinion of the law, and mine, are equally as essential to the understanding of the law as any trained lawyer (no offense to the lawyer). My opinion is that, taking the constitution at face value, sans all of the arguments and findings, what you or I have to say about it should carry an equal weight for the purposes of this discussion.

     Now, let me blow this thing right out of the water (I am not sure I completely believe what I am about to say, or even that I am on a track anywhere close to the station, but here goes…) The Constitution of the United States, and the Bill of Rights, outlines the manner in which the Federal Government is to act in relationship to the citizenry, correct? Being that only 2% of all public school funding for K-12 comes from the federal government, and that, at least to my knowledge, there is no FEDERAL public school, how is it that the first amendment even applies to prayer in public school?

     Shouldn’t prayer in a state funded public school be left an issue for the several states to decide within their own legal system and constitution? If Utah, or Texas, or Mississippi wants to sanction prayer in the schools for which it provides 98% of the funding, or New York and California want to abandon prayers in school, should that not be their option? And I am not talking just student led prayers, but prayers over the loud speaker, or in assemblies, or before the football game, or where a teacher asks a student to pray before a group test.

127. Kelly,

     I think you know better than to make such an argument. In the past century, there were some states which would have been happy, since they were providing the majority of the funding for their schools, to keep those schools segregated.

     From Article VI:

     Clause 2: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

128. Kelly-

     I completely agree with you that your opinion about the constitution matters every bit as much as mine. We are both American citizens. I hyave long argued that a person’s academic training does not give anyone a special corner on thinking in that field. My law degree is just a piece of paper that costs a lot. One of the best law professors I had (interestingly enough in my First Amendment class) did not even have a law degree. So your opinion does matter.

     Re: the first amendment applying to the states- most of the liberties in the Bill of Rights, which did originally apply only to the federal government as you have correctly surmised, were incorporated against the states through the 14th amendment over a period of about a hundred years beginning in the late 19th century. So for practical purposes, the first amendment applies (through the 14th) to all state governments as well as to the federal government. But you are correct, of course, about how the first amendment is worded. And you shouldn’t know better- the incorporation of these liberties through the 14th amendment is actually somewhat counterintuitive, in my opinion.

129. I’m very late coming to this conversation. I won’t go into my diatribe since I see that my viewpoint has been very well represented here. Color me firmly in the Fowles Brothers camp.

130. Bill, Jordan- thank you for the history lesson. I stand amended, as it were. I must admit that I did not even consider the 14th.

     Let me throw something else into the mix, however. Not to throw the conversation off, but to provide an example of state’s rights against the constitution.

     Congress and the states passed an amendment prohibiting the sale of alcohol, and then later repealed that amendment. The state of Utah, however, has taken it upon themselves to regulate the manner in which liquor over a certain % content is sold, and that only through state run stores.

     Having said this, can there be no regulation set by the states as to how they will administer or regulate the First Amendment?

     I realize I may be pointing to my ignorance in asking this question, but what the heck…

131. Governments are always free to place reasonable time, manner, and place restrictions on speech. And the extent to which a state can regulate speech also depends upon the type of forum where the speech is taking place. Generally, the more public the forum and the more open it has traditionally been for speech of any kind, the less the government can regulate the speech that occurs there. So, for example, speech occurring on main street would be more protected than speech occuring in a government-run airport.

     Because of the peculiar nature of schools, they are treated a little differently than most traditional public forums. Although it is true that neither teachers nor students shed their right to free expression at the “schoolhouse gates”, the school also must retain power to proscribe and control conduct within the school. Thus a school’s prohibition of speech could be sustained of the conduct would materially or substantially interfere with the requirements of appropriate discipline in the operation of the school. (This is all from a case called Tinker v. Des Moines Independent School District (1969) where a student was disciplined for wearing a black armband to school to protest the Vietnam War. The school’s action in that case was held to violate the first amendment guarantee to freedom of expression.)

     However, public forum analysis has little to do with prayer in public school, since that implicates the relgious aspects of the first amendment. Some, like Kelly, argue that forbidding it infringes upon the free expression of religion. Others, like me, argue that allowing prayer in public schools violates the establishment clause. Note that even if forbidding prayer DID infringe on free exercise, an infringement on free exercise is normally OK if it is done to serve a compelling government interest, and avoiding an establishment of religion can be just such an interest.

     However, as all the different arguments about this point out- law cannot exist just unto itself- it should serve the people who live under it. Hence the disagreement over this issue, and indeed over all such issues. That is why Justice Scalia opines that an originalist approach to such issues is generally the best one- because it is the only reliable method to figure out in an socially meaningful way what the constitution should mean where the “rubber meets the road” and it actually applies to real people. Overall, I have to admit conversion to the theory of originalism. But I guess I am not a pure originalist, because I just can’t jump on the originalist bandwagon when it comes to school-led prayer.

132. Nathan,

     OK … so I made an assumption in my reading and skimming down … and you know what happens when you assume, correct? Anyhoo … yes, that is more so what I was after and did not phrase my question specifically enough. I was more interested in where the wording “separation of Church and State’ came to be what everyone says, but is not part of the legal documentation.

     My assumption was that I already knew the first amendment better than I did … and hence spoke up without properly refreshing myself on that.

     My general concern and reason for my question is to avoid the popular use/phrasing of princilpes, laws, historical events, and what-have-you that serve the purpose of detracting from or derailing the original purpose. One example for me is how everyone refers to our system of government in the US as a ‘Democracy’ … and people who consume enough mainstream media with their burgers and fries believe that that is what our system of government is (but that’s a whole ‘nother discussion). Guess I allowed myself to be victimized in this case as well. I was lazy and asked here instead of Googling for myself.

     Google, BTW, is what I use when I’m not feeling smart. When I’m feeling smart (or overestimating my knowledge), I don’t consult other sources ;)

     Cheers

133. Kelly: Again alchohol regulation is a bad example. First, there is nothing in the constitution that suggests that one has a special right to purchase alchohol that cannot be infringed by the government. There is something in the constitution about free speech, free exercise, and the establishment of religion. Secondly, the 21st Amendment, which repealed Prohibition, creates special state authority over the regulation of liquor, section 2 of which states:

     “The transportation or importation into any State, Territory, or poessession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

     The precise meaning of this clause is open to debate. (There is a big case on this very issue pending before the U.S. Supreme Court.) On a broad interpretation, it provides a special exemption from a doctrine known as the domanat commerce clause (dcc). Under the ddc doctrine, states are generally forbidden from errecting barriers to interestate commerces. For example, the state of Utah cannot create differential property taxes on automobiles based on where they are manufactured in the United States, say taxing cars made in Utah less than cars made in Detroit. Some states have taken the position, however that sec. 2 of the 21st amendment does allow them to burden interestate commerce in alchohol. The specific issue are state laws against online purchase of wine. Can Virginia, for example, pass a law making it illegal to buy California wine online, but nevertheless allow citizens to buy Virginia wine? A narrower reading (advanced in a brief in the case written by a partner at my firm — full disclosure) is that sec. 2 mearly allows states to exclude all liquor or certain kinds of liquor from their state.

     I see no reason that you need a law degree or legal training to make valid or insightful legal arguments. Furthermore, in many ways I think that constitutional law is easy compared to other sorts of law and therefore is more open to non-specialists. However, one of the pernicious aspects of democracy is that it makes us believe that as citizens our arguments on certain matters of public concern (eg the proper reading of the constitution) are of equal validity. Not so. Arguments still have to be good arguments in order to be taken seriously.

134. “Arguments still have to be good arguments in order to be taken seriously.”

     So, one needs to be informed, because, if one is to formulate a good argument on topic X than it is likely that one will need to be just about as informed as the specialists are on topic X–making one (for all intents and purposes) a specialist.

135. Jordan # 131 wrote: But I guess I am not a pure originalist, because I just can’t jump on the originalist bandwagon when it comes to school-led prayer.

     I can’t be a “pure originalist” either because I believe the SC is exercising a proper role in interpreting the law, and because of our common-law system, that become stare decisis which must be followed until changed by that same level of authority. Thus, in my (apparently) partial-originalism, incorporation of the Bill of Rights as against the states through ambiguous language in the XIVth Amendment, although perhaps slightly counter-intuitive, as Jordan noted, is valid and acceptable. I am also with Nate, however, in an admiration for the Westminster system and the parliamentary supremacy that exists there and that thereby strikes a blow at judicial review. Still, we have Marbury v. Madison as our controlling law. So even if arguments straight from the text of the Constitution cast some doubt on the idea of judicial review (which is not a straightforward argument in itself, given Federalist 78), that is the direction that this country has taken, and it works by and large. (None of this, however, should be construed as a support of judicial activism that would try to push a social agenda that should properly be treated by a democratically elected legislature.)

136. Conress should not be able to make a law regulating religion. period. Haaannn

137. Eric, you had some cool teachers.

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