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Is government supported prayer constitutional?
As we have already demonstrated, the law
with respect to school prayer is clear: when organized,
supported, or required by the state, school prayer is illegal.
Our purpose in this document is to explain in a somewhat more
orderly manner why this is the case.
Briefly, state-supported prayer amounts to the establishment
of a religious practice. This is true whether the state actually
prescribes the prayer to be said, or allows teachers and students
to compose the prayer as they see fit. Let's use the famous
Engle v. Vitale case to illustrate our argument.
Engle v. Vitale revolved around a New York law that
required school officials to publically recite each school day
the following prayer, composed by the New York Board of Regents:
Almighty God, we acknowledge our dependence upon Thee, and we beg
Thy blessings upon us, our parents, our teachers, and our
The Court ruled, correctly in our opinion, that the New York law
violated the First Amendment. Indeed it's difficult to image how
the Court could have ruled otherwise. Prayer is, without
question, a religious exercise, and when the state requires that
a prayer be recited, it is establishing a religious practice.
Additionally, it violates free exercise for the state to expose
students to prayer against their will, or to force students to
absent themselves from the classroom to avoid a prayer they do
not want to hear. Finally, we note that, despite the fact that
this prayer was written to be as general and non-sectarian as
possible, it still establishes religious beliefs, beliefs
that surely do not reflect the religious sensibilities of many
students. Christians, for example, might justifiably complain
that the prayer is not offered in the name of Christ, while
polytheists and adherents to new-age religions might have
problems with the implied assertion that there is
a single God, or that this God is almighty. And non-theists would
certainly object to repeating words that imply that they are
"dependent" on a God in which they do not believe. No matter how
charitably one views the facts of Engle v. Vitale, it is
difficult to escape the conclusion that the Regents' prayer would
be acceptable to many students.
In our e-mail and usenet correspondence we have heard a number of
arguments about why prayers of the Engle v. Vitale sort
either do not violate the Constitution, or can be made to not
violate the Constitution. Let's look at some of the more
important of these arguments:
- The students can be excused from prayer. True, but
this doesn't resolve the Constitutional problem. The state
establishes a religious practice when it orders that prayer be
said, regardless of whether people attend the prayer.
Moreover, this is hardly an effective way of resolving the
problem. On the contrary, such excusal would publicly single out
students who refuse to take part in prayer. As many have
observed, children ostracize people who are different from
themselves. Additionally, the nature of excusal is to make
children feel as if they are not doing something that would
otherwise be expected of them, i.e., it sends the message that
the state considers prayer to "normal" and "routine."
- Students that don't want to pray can simply sit
silently. But this doesn't solve anything either; if
religious liberty means anything, it is that I choose when and
how to expose myself to religious practices. If I don't want to
be exposed to prayer, why should I be required to listen to it?
Imagine, for example, that a judge ordered me, as part of a
parole agreement, to attend a Catholic Church every Sunday.
Without question, this order would violate my religious
liberty--it forces me to attend a church not of my choice at the
order of the state. It would be nonsense to argue that the order
is constitutional on the grounds that I don't actually have to
take communion or otherwise participate in the religious service.
Neither is it constitutional to force children to listen to
prayers in which they do not want to participate.
- The State doesn't have to write the prayer; teachers can
make one up on their own, or students can decide among
themselves. Again, this wouldn't solve the constitutional
problem. It is just as illegal to order a teacher to compose a
prayer as it is for the state to write one; either way students
end up listening to a prayer they may not want to hear at the
behest of the state. And it surely violates the religious liberty
of teachers to force them to compose prayers by law, or to limit
the content of these prayer. Conversely, if no limitation
is placed on what can be said, prayer will become an open
invitation to evangelism in the classroom.
It is equally unconstitutional to have children "choose among
themselves." It is of no consequence to the Constitution that
students write or select the prayer they say; so long as that
prayer is required by the state, it's unconstitutional. There are
practical problems as well. It's nonsense, for example, to think
that first or second graders will have the theological
sophistication to compose prayers of their own. Further, there is
no guarantee that student-composed prayer will reflect the
religious beliefs of all students. On the contrary, such prayers
would be just as open to abuse as teacher-led prayer. Finally,
students are already free to meet together and pray before
class if they want to, so long as the state plays no role in
organizing the prayer.
- We can rotate prayers among the faiths represented in the
class. Not and still be constitutional. Rotated or not, when
the state orders that a prayer will be said, it establishes a
religious practice. Additionally, such proposals are fraught with
problems. First, rotating prayers guarantees that prayers will be
sectarian (if generic prayers are acceptable, why rotate
prayers?). And if prayers are said in proportion to the number of
students in class who hold a particular faith, students that
adhere to minority religions will have their prayers said very
infrequently, while "majority" prayers will be heard every week.
This will do nothing more than reinforce the minority status of
minority religions. Finally, there is nothing equivalent to
prayer in the non-theist community. Will atheists be included the
rotation? If not, how will their views be represented?
- Prayer does not establish a religion. Correct. It
establishes a religious practice, which is just as
illegal. The First Amendment does not proscribe the establishment
of a religion; it proscribes establishment of religion
generally. It is no more correct to argue that the state can
require prayer so long as that prayer is non-sectarian than it is
correct to argue that the state can require that you attend a
religious service once a month so long as the state does not
designate the service you have to attend.
- It doesn't harm a kid to have him/her pray. True, but
that doesn't make it legal. Besides, "harm" is in the eye of the
beholder. An atheist might very well consider it harmful to
expose kids to religious doctrines he/she considers false and
destructive. Similarly, in the years before Engle v.
Vitale Catholic parents definitely considered it harmful when
their children were asked to recite the Protestant version of
the Lord's prayer, or were asked to read from the King James
Version of the Bible which, to Catholic tastes, is translated
- Even if you're technically right, it just goes too far to
proscribe simple prayers. On the contrary, the simple prayers
proscribed in the 1960s were the source of profound discomfort by
many students in the years before Engle. As noted above,
most Bible reading was from the King James Bible, and many
prayers had a Protestant "feel" to them, which infuriated
Catholics. Jews were offended at being forced to read from the
New Testament of any Bible. Non-believers disliked the whole idea
of being forced to participate in prayer. Even some religious
Protestants disliked praying "generic" prayers that did not
express their beliefs. The Engle decision was a completely
appropriate remedy for what had long been a bothersome government
intrusion into the private lives of its citizens.
- Proscribing prayer deprives parents of their right to have
prayer if they want it. No it doesn't. Prayer remains
completely legal in the public schools. A parent can still
instruct a child to prayer in the tradition of his or her family,
and teachers must legally respect the student's right to pray so
long as those prayers do not disrupt the educational mission of
the schools. On the contrary, the only thing limited by
proscribing organized prayer in the schools is the rights of some
parents to determine what other kids will have to pray.
- Why not just set aside a time for prayer in the morning
and let kids pray as they want? Generally, such proposals are
legal, so long as the time is not set aside exclusively for
prayer. Moment of silence laws, for example, have been found to
be legal by the Supreme Court. But if the statute sets the time
aside for prayer, it amounts to the state favoring prayer over
other activities, and further declares that prayer is an
appropriate activity at certain times and places in the school
day. The state has no right to do either of these things.
In summary, organized school prayer is unconstitutional for
perfectly good reasons. You don't have to be a legal scholar to
understand why it's wrong for the state to organize prayer. When
the state forces you to pray, it is forcing you to participate in
a religious practice. That amounts to establishment of religion,
and that's unconstitutional.
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