Is government supported prayer constitutional?

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 country.

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 not 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 incorrectly.

• 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.