Wednesday, June 29, 2005

Prayer in School and Coercive Establishments:

I've been flirting with the notion that the Establishment Clause, as incorporated through the Fourteenth Amendment, forbids only "coercive Establishments," that the Clause does indeed mandate government neutrality between all religions and between religious and irreligious citizens, but only when some tangible right, some "Privilege or Immunity" is on the line. In other words, if a government action does nothing more than "offend," if it doesn't "pick the pocket" or "break the leg" of a citizen, maybe it's constitutional, even if not good public policy. After all, as a libertarian, even a "secularist" one, I think I need to offer more than, "this government act offends me" before it becomes a Federal Constitutional issue.

Let's turn to the issue of school prayer. Obviously, if the prayer is a mandatory exercise, in which the students are expected to participate, this is a tangible harm and shouldn't be allowed. You can't force a Jewish person to say a Christian prayer, or even a non-religious person to say any kind of prayer, even if non-denominational.

But what if it's a prayer, written by the school and recited over the loudspeaker where the students are expected only to sit back and listen. How is that any different than sitting back and listening to the administrative nonsense that public schools broadcast over their loudspeakers every morning.

I'm still inclined to believe this to be inherently coercive and thus unconstitutional...how do/did school prayers operate in the real world? Aren't the students supposed to participate in some manner at least by bowing their heads. And those who don't want to participate have to get up and leave (making them stand out like those Jehovah's Witnesses who sit down when everyone else is standing up during the Pledge of Allegiance)?

But let's say, for sake of argument, that prayers are non-coercive, that it does no harm to a Jew or a Muslim to have to sit and listen to an explicitly Christian prayer over the loudspeaker every morning. Let's further say that the Supreme Court allows this to go on in public schools, by overruling Engel v. Vitale and like rulings. How might the outcomes look in present day America?

Sure some school districts dominated by fundamentalists in a few states like Alabama would adopt explicitly Christian prayers and Jews, Muslims, and everyone else in the minority would have to listen to such Christian prayers, every morning.

But federalism and the institution of public education work in strange ways.

For instance, even though Mormons are a minority in this nation, in Utah, they comprise a majority, at least they do in certain parts, if not in the entire state. So what if a school board in Utah voted to adopt Mormon prayers, reading right from the Book of Mormon with Protestants and Catholics having to sit through readings of what they regard as a false religion. Now, one could say it would be more palatable to search for a Lowest Common Denominator between Mormons, Protestants and Catholics. That might be a good political principle. But I don't see how it holds any water as a constitutional principle. What sound constitutional principle could tell us that the reading of a Mormon prayer is unconstitutional but a more general Christian or Judeo-Christian prayer to be constitutional. If we are arguing for a Lowest Common Denominator standard, then the presence of one atheist or one polytheist will reduce the LCD to zero. And if government's "mere words" are not coercive and cause no harm, how is a Protestant fundamentalist harmed by having to listen to a Mormon or a Muslim prayer, in a way that an Atheist is not harmed by having to listen to any prayer or a polytheist harmed by having to listen to any Monotheistic prayer.

Thus, even though Christian prayers might dominate demographically, there will be plenty of individual instances of overtly Protestant, Catholic, Mormon, Jewish, Muslim and Pagan prayers where through federalism, politics, and changing demographics, different factions manage to get their agendas passed in various states or through various local school boards.

Also keep in mind the politics of Public Education and Teachers Unions. They've embraced the diversity and multicultural ideal -- especially in places like the North-East and parts of California. Some of these places, no doubt, wouldn't have any prayer at all in school because they embrace secularism.

But I could also see some fuzzy-headed multiculturalist "re-thinking" the prayer issue, especially in response to some of the "horror stories" of fundamentalist prayers in Alabama. Some school administrator would construct a "multicultural" prayer to be read over the loudspeaker every morning where Jesus is mentioned along with Buddha, Allah, and Hindu Gods like Ganesh and Pagan Gods of the Earth.

Now the fundamentalists who go to such schools would have to listen to such prayers that I think they would regard as blasphemous and worse than having no prayer at all. But if the Constitution outlaws only government actions that cause tangible harms or deny actual privileges or rights, I don't see any difference between a fundamentalist being offended by what he regards as a blasphemous prayer and a Muslim, Jew, Atheist, Polytheist or Freethinker being offend by the reading of a Christian prayer.

So to the orthodox Christians who may read my blog: Be careful what you wish for, you just may get it. And "it" means having Jesus's name invoked in a government prayer with false demon Gods like Ganesh and Allah.

6 comments:

bls said...

Isn't this whole mishegoss exactly what you avoid by declaring school prayer to be unconstitutional? Don't we think that fights over prayers at school board meetings are a colossal waste of time, when administrators could be owrrying about - oh, I don't know - the curriculum, or something?

In the event, why is it so important to pray collectively in school, when there's literally a church on every corner? If parents want their kids to start the day with a prayer, why don't they institute this at home, or go to early mass, and let everybody else do the same? I think if religionists would stop pushing this issue, everybody else might lighten up on Christmas Creches in the park and the Ten Commandments in the courthouse.

bls said...

(I mean, isn't the real question why prayer in school is an issue at all?)

Michael said...

The key thing to remember is that the Establishment Clause doesn't stand alone. It's coupled with the Free Exercise Clause, and any constitutionally permissible expression of religion in the public sphere can't run afoul of either one.

This was important in Lee v. Weisman, the prayer-at-graduation case from 1992 or thereabouts. The Court found that having the (allegedly non-sectarian) prayer at graduation violated the Establishment Clause. But it also held that handing those religious leaders (they did ask a Jew to lead one of the prayers, after the Weismans complained the first time; otherwise, if I recall the facts correctly, all were Christians) a pamphlet of official school-district guidelines on what constituted an acceptable prayer violated the Free Exercise Clause.

In other words, a government entity not only cannot force people under its tutelage to listen to a religious exercise, neither can it force a religious leader to censor him/herself in order to read one out (or compose one to be read out).

Jonathan said...

BLS:

Yes, I think you are doing an excellent job outlining the POLICY reasons why prayer in school is undesirable. Were I a public school administrator, I'd vote against it every time.

But I'm arguing that perhaps, as a constitutional matter, prayer would be allowed...then what would be the effects? We have to do more than argue that X is a bad policy before X becomes a constitutional issue.

But I did say that I'm inclined to believe prayer in school to be unconstitutional because school prayer is an inherently coercive religious exercise (to those who might not wish to pray).

But if prayers were just "mere words" and forcing someone to sit through a prayer causes no tangible harms or violates no rights, then arguably prayer would be permitted constitutionally.

And given the current state of public education we would expect to see all sorts of prayers, prayers which orthodox Christians regard as blasphemous.

bls said...

Sorry, Jon - I did realize what you were doing. I was just frustrated.

BTW, I've spoken with fundamnentalists who agree with you; they have very specific beliefs, and they don't want their own kids to be forced to pray in some other way, and so don't support prayer in school. So you hit the nail on the head, absolutely.

I hope somebody finally makes this argument and we can get on with it already. Nobody's said a prayer in school since the 60s and I really don't know why we're still having this discussion.

Bill Ware said...

In the years before the New York standard (state written) prayer was eliminated, there was an argument about the wording. As I recall, it ended, "in the name of the Father, the Son and the Holy Ghost."

Others complained, saying they wanted it to end, "in Jesus' name, Amen." Does this topic sound familiar?

Other changes were at issue. Boy, what a continual fuss. It was a relief when the whole idea of a prayer was dropped.