School Prayer and the First Amendment - Coursework Example

School Prayer and the First Amendment The First Amendment of the Constitution which formed part of the Bill of Rights was drafted as a compromise and condition for the ratification by the antifederalists who initially opposed it. The First Amendment, contained, among others, the religion-based establishment and the free exercise clauses. The establishment clause simply prohibits the government to enact laws that will tend to advocate or proscribe any kind of religion while the free exercise clause, is a prohibition to the passage of laws that will infringe on the rights of the individuals to express and practice their beliefs. These rights are however not absolute as almost all rights are made subject to the rights of others. The establishment and the free exercise clauses are controversial provisions of the Bill of Rights because many aspects of the same are still contested to this day, and many cases decided by the Supreme Court seemed to be contradicting each other. This is particularly true with respect to its application of the practice of religion within the walls of the public schools. Several cases have mushroomed in the past questioning the applicability of the clauses in the school campuses of public schools ranging from the use of prayers and invocations in the classrooms and other important activities within the school campus to the organization of religious school clubs using school facilities but during non-instructional hours. I The First Amendment and the Constitution The First Amendment to the United States Constitution states: “Congress shall make no law respecting as 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 redress of grievances.” Background. The first ten amendments to the United States Constitution was drafted in 1789 essentially to allay fears that the new government with the freshly drafted Constitution was too strong and abuse personal rights. When the new Constitution was sent to the states for ratification, the country was torn apart with the Federalists supporting it and the Antifederalists opposing it. As a compromise, the Federalists agreed to draft a Bill of Rights, if the new Constitution was passed (Vile 2006 p 123). Thus, the Federalists drafted a Bill of Rights which contained the first ten amendments to the Constitution. The First Amendment itself was developed by James Madison, Thomas Jefferson, and George Mason. On the matter of religious freedom, these men were motivated not by indifference to religion but the practical understanding that religion stands nothing to gain but much to lose by a close association with the government and vice-versa. According to Jefferson the reason for the inclusion of religion in the first Amendment freedoms was that there should be “a wall of separation between church and state” while Madison declared that there should be “a line of separation between the rights of religion and the Civil Authority” (Corbett & Corbett 1999 p 155). The Establishment Clause. The Establishment Clause of the First Amendment simply prohibits the enactment or passage of laws that will tend to favor any religion and therefore mandates neutrality where religion is concerned. A test for neutrality of laws in accordance with the establishment clause of the First Amendment was set up in the case of Lemon v. Kurtzman, a 1971 case and is thus called the Lemon Test. To meet the establishment clause, a piece of legislation must be: first, it must have a secular legislative purpose; second, it must not be chiefly created to advance or inhibit religion, and; third, it must not result in an excessive involvement between religion and government. Any violation of the three prongs meant the legislation is unconstitutional as it violated the First Amendment (Lemon v. Kurtzman, 403 US 602). The first and third prongs of the Lemon Test was subsequently applied in the subsequent case of Wallace v. Jaffree, a 1985 decided case, to strike down the constitutionality of an Alabama law. In this case, Alabama enacted a law which allowed a one-minute period of silence each day devoted chiefly “for meditation or voluntary prayer.” Appellee Jaffree, father of two schoolchildren who went to one of the Alabama schools practicing the on-minute prayer, went to court to contest the practice. The US Supreme Court held that the said Alabama law was in the nature of a law respecting the establishment of a religion because of its motive was to endorse religion and there was no clear secular purpose for its enactment. It was stricken down as an unconstitutional law in violation of the establishment clause of the First Amendment (Wallace v Jaffree, 472 US 38 [1985]). On the other, the third prong of the Lemon test was employed by the Supreme Court in justifying a state’s decision for the continuous exemption of church property from taxation. In the case of Walz v. Tax Commission of the City of New York, a 1970 case, the appellant, a property owner within the New York jurisdiction, filed a suit against the Tax Commission for exempting churches from property tax on the ground that this act compel him, as a tax payer, to contribute indirectly to these churches. The Supreme Court held that there was no violation of the establishment clause in this case because what is prohibited is the excessive entanglement of the government with church institutions. In this case, there was only a minimal involvement of the government which does not extend to one specific institution but to all in general. Besides, it is a custom of the state of the employment of “benevolent neutrality” where churches are concerned in general. A practice already woven and “deeply embedded in the fabric of “ the national life (Walz v Tax Commission of the city of New York [1970]). Free Exercise Clause. With respect to the right of the people to freely exercise their religious beliefs, the Supreme Court made a distinction between religious practice and religious beliefs. Where religious beliefs are concerned, this is an almost absolute right but where religious conduct is concerned, the state has the right to exercise control when the conduct of the believer tends to disturb or affect others (Vile 2006 p 131). In the case of Reynolds v United States, a case which dates back as early as 1878, the Supreme Court sustained the conviction of bigamy against Reynolds. Reynolds was a member of the Church of Jesus Christ of the Latter-Day Saints and he married a woman even though he is still married to another. He was charged and was convicted of bigamy. Reynolds appealed his conviction on the grounds of, among others, religious duty to multiply (and therefore marry as many as times as possible). In its decision, the Court impressed the distinction between religious beliefs and practices, the former as something that “lies solely between man and his God” and therefore the governmental powers specifically legislative action can extend only to actions and not beliefs which lies largely in the mind. Although an individual can believe in the practice of polygamy, to which the government has no power to prohibit, he cannot however practice polygamy because it would violate laws. If polygamy, or bigamy, in this instance is allowed, the Court said that it wouldn’t be long before someone uses it as an argument to practice the sacrifice of human lives in the altar and to allow this would be to allow the professed doctrines of religion takes precedence over the law of the land (Reynolds v United States, 98 US 145 [1878]). II The Separation of Church and State In the drafting of the religious clause to the First Amendment of the US Constitution, Thomas Jefferson, who was one of those who drafted it, often referred to it as “building a wall of separation between Church and State.” The implication is that the provision prohibiting the state from enacting laws pertaining to the inhibition or advocacy of religion was actually meant to provide a wedge, a wall, between the church and state. Although there is a technical discrepancy between the words ‘disestablishment’ and ‘separation,’ Jefferson’s words and intent seemed to state that as per the application of the First Amendment, there is no distinction (Hamburger 2002 p. 3). Subsequently, the pronouncements of Jefferson regarding the “separation between church and state” were picked up and adopted by distinguished people in the various period of the American history: President Grant in 1875; Chief Justice Waite in 1878, and; Justice Black in 1947 (Hamburger 2002 p. 3). Thus, in the precedent case of Everson v. Board Education of Ewing, Jefferson’s separation phrase became the standard establishment clause, followed by succeeding cases. In this case, a New Jersey law allowed parents to be paid back the money they spent for the transportation of children using the public transportation system. The law included parents whose children were sent to parochial schools. The issue was whether the law is an infringement of the establishment clause of the First Amendment. The Supreme Court, through Justice Black, held that the bussing and other services like fire and police protection extended to parochial schools is distinct from the act of religious functions and therefore does not violate the establishment clause of the First Amendment. Neither did the law allow the payment of money directly to the schools but only to parents under the general program of assistance (Everson v Board of Education of Ewing [1947]. One of the most important passages in the Erving case was the sweeping statements of Justice Black which referred to the separation of the state and the church as the essence of the establishment clause. Justice Black said: “The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over the other. Neither can force nor influence a person to go to or to remain away from the church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institution,, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participatein the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation’ between church and State” (Erving v. Board of Education of Ewing, 330 US 1, 15, 15-16). III Prayer in School School-organized Prayers. Many cases decided in the past by the US Supreme Court have established the principle that public schools cannot organize or lead religious activities, like school prayer, in the campus and impose them on their students because the same would violate the religious clause of the First Amendment. The leading cases in this category are Engel v. Vitale, Abington School District v Schempp and the case of Lee v. Weisman which was decided in the 1990s. In the case of Engel v Vitale, which was decided back in 1962, the New York Board of Regents authorized public schools to allow the voluntary recitation of brief school prayer at the start of the class. The prayer, a very bland one, goes: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” This prayer was composed by the officials of the Board, which has supervisory functions over public schools in New York. The Court held in this case that daily ritual of reading the school prayer was a violation of the establishment and free exercise clauses of the First Amendment because the law is applicable to the states and therefore to state officials, by extension, who cannot therefore compose religious prayers to be said in public schools even if it sounded bland and neutral (Engel v Vitale, 370 US 421 [1962]). In the case of Abington School District v Schempp, a 1963 case, the students of public schools in Pennsylvania were obligated to read about ten biblical passages at the beginning of every school day after which they were required to say the Lord’s Prayer. A student however could be excluded from the exercise of the daily religious ritual if the student’s parents write a note to the effect to the teacher. In the subsequent hearing of the case, the Court declared that this was a case of violation of the establishment clause as well as the free exercise clause of the First Amendment. The excusing of any child from the activity by virtue of a note from the parents was found to be irrelevant by the Court because it did not prevent the schools from violating the relevant provision of the law (Abington School District v Schempp, 374 US 203 [1963]). The case of Lee v Weisman, a 1992 case, was vital to this discussion because it illustrated the extent to which a public school can be held accountable for the exercise of religious activities in school. In this case, the school district authorized the principals of the middle school and high school to invite clergyman who could offer and lead prayers during the convocation ceremonies. A principal in a middle school invited a rabbi to offer prayers and gave the guidelines to the composition of the prayer with the special instruction to make the same non-sectarian. In the ensuing case of violation of the establishment clause under the First Amendment brought by one of the graduating students, the Court held that the invitation made by the principal o the rabbi and the prayer offered by the latter violated the said provision of the Bill of Rights. Thus, prayers offered by a clergyman during an official public school ceremony falls within the ambit of the prohibition. In reaching this conclusion, the Court did not make use of the Lemon Test but rather on the concepts of control and coercion. Under the first factor, it was evident that the school had control of the affair when it set the religious ceremony and choose which clergyman to invite in addition to the guideline given the rabbi. The coercion factor was deemed to constitute the psychological and social pressure on the students. This is notwithstanding the fact that attendance in the said event is technically voluntary, graduation in middle school is always deemed coercive (Lee v Weisman 505 US 577 [1992]). Rights of Students. The First Amendment did not prohibit students from the free exercise of their religious beliefs which therefore means that they can, on their own, initiate voluntarily the practice of their faith and beliefs. What the First Amendment mandated is for the state not to interfere, by way of promoting or prohibiting, with activities of a religious nature. Thus, students may freely pray on their own, or together with others, so long as they do not disrupt or disturb others around them or infringe on the rights of others. However, any public school sponsored prayers, even if the prayer is made through the students, would definitely fall within the ambit of the prohibited acts under the establishment clause (Haynes 2003 p. 42). However, there are existing cases decided by the Supreme Court which would muddy the above statement that students can on their own initiate their own prayer in public schools. Such was the case of Santa Fe Independent School District v Doe, decided just fairly recently and the case of Adler v. Duval County School Board, a subsequent case to the Santa Fe. These two cases are based on almost the same premise – student led and student-initiated prayers in public schools, yet the decisions in these cases are contrary to each other. In the 2000 case of Santa Fe High School elected its own student council chaplain. The elected student would recite a prayer every time the school football team would begin a game. The prayer was described to be very Christian and two parties from other religious groups filed a case against it on establishment clause ground. Meanwhile, during the pendency of the case, the School District modified its policies and allowed, but not required, invocations to be said at the start of games held on home grounds. It also called for the election of students of whether invocations should be made on such occasions and if yes, to elect the student body’s spokesperson who will say the invocation. The District Court, who initially handled the case, made an order that any student-led invocation should be non-sectarian and non-proselytizing. The Supreme Court held that even the student-led student-initiated prayers, as amended by the District School policy, was in violation of the establishment clause of the First Amendment. This is because the prohibition against government instrumentalities in re religious entanglement includes not only actual but perceived involvement. A perceived involvement can be borne by the fact that the invocation is authorized under a government policy done on government premises during a government-authorized activity (Santa Fe Independent School District v Doe 530 US 290 [2000]). In the case of Adler v Duval County School Board, a 2001 case, the latter crafted a policy where graduating students can determine for themselves, through election, whether invocations should be made at the start or end of the graduation ceremonies and determine themselves, which students should deliver them. Four members of the graduating class filed a suit against the school for allowing the activity under the establishment clause of the First Amendment and for subjecting them to such an unconstitutional exercise. Despite its ruling in the previous case of Santa Fe, the Court held that the exercise was constitutional and did not violate the First Amendment’s establishment clause. According to the Court, the distinguishing factors which made the present case passable under the establishment clause was that the school had no supervisory role over the reading of the invocation because it was the students who determined for themselves whether an invocation should be given, and who will give. The school did not have any role in it, even guidance of the crafting of the prayers. In addition, the case passed the Lemon Test in that its purpose was secular, the policy did not inhibit or advance any religion, and did not overly involve government with religion (260 F. 3d 1330 [11th Cir. 2001]). Religious clubs at school. In the same manner that there seemed to be a conflict in the rights of students to initiate and led religious prayers within the campuses of public schools, their right to organize religious clubs in public schools are also an issue with conflicting decisions. The leading cases here are Garnett v Renton School District and the case of Board of Education of Westside Community Schools v. Mergens. In the case of Garnett v Renton School District, several students wanted to hold meetings of a religious nature in the school campus during non-instructional hours to read the Bible, pray and discuss things of a religious nature. The school did not give the group permission and they sought relief from the courts. In their petition they cited the free speech and free exercise thereof as well as the provisions of the Equal Access Act. Under the latter, schools are required to accommodate the organization of student groups, even when classified as non-curriculum as long as they are student initiated within the school grounds. The Ninth Circuit held that allowing such organization to use campus resources and facilities, even during non-instructional hours, was unconstitutional on the establishment clause of the First Amendment. This is because the same failed the supposed secular and non-entanglement prongs of the Lemon Test (Garnett v Renton School District, 675 F. Supp 1268, 1274 [WD Wash 1987]). The Board of Education of Westside Community Schools v. Mergens, a 1990 case, which has the same premise as the Garnett case was surprisingly decide favorably by the Supreme Court. In this case, a group of students asked permission from the school to organize and hold religious meetings within the school campus during non-instructional hours and after-school hours. The school refused them on the grounds of the establishment clause and the fact that the group lacked a faculty sponsor. The group brought the case to court and sued the school. The Supreme Court held that the act of the school in denying the group access to school facilities after school hours when it allowed others on a non-curriculum basis, was a violation of the Equal Access Act (Board of Education of Westside Community Schools v. Mergens 496 US 226 [1990]) Conclusion Summary. The First Amendment to the United States Constitution contains several freedoms of individuals among which are the freedom to practice religion and the prohibition against the state with religion through the passage of laws that affect religion. Thomas Jefferson, who was one of those who crafted the amendment, called the “building of the wall of separation of church and state,” a phrase which became the standard description and explanation of the establishment clause and adopted by several historical figures like Justice Black of the US Supreme Court. The establishment and free exercise clauses are rather controversial provisions of the Bill of Rights with cases mushrooming in the past questioning its applicability especially in the public schools. The neutrality of a law or government policy can be best be tested for its compliance with the establishment clause through the Lemon Test, a test that was first detailed in the case of Lemon v. Kurtzman where such a law, policy or pronouncement can be tested for its constitutionality if it meets the following criteria: it has a secular purpose; it does not create a deep involvement of the government with religion; and it does not primarily act to inhibit or advocate religion. On the other hand, the free exercise clause can be readily characterized as definitely not an absolute right especially when the free exercise is manifested by external acts. As one case puts it, the faith and belief in themselves are largely between man and God and therefore cannot be regulated if it remains in the mental sphere but the moment it is manifested through actions, then the state may interfere. The rationale of course, is that the state has the ultimate duty to regulate human activities. The cases decided by the Supreme Court relative to the application of the establishment and free exercise clauses in public schools are quite controversial and fraught with conflicting and contradicting decisions. In the student-led and initiated prayers, for example, the conflicting cases of Santa Fe Independent School District v Doe, and the case of Adler v. Duval County School Board provide an unsettling atmosphere over the rights of students to recite prayers on campus. While Santa Fe declared student-initiated prayers during the start of home games even if the reciting of such prayer and who to recite them was determined by the students themselves, the case Adler, on the other, hand held that such prayer if student initiated and even of highly secular and proselytizing are constitutional simply because they are not being supervised by the school and no guidelines issued by the school direct the making of the prayer. The same situation can be said in the case of student organizations and clubs organize and using school facilities during non-instructional hours. The cases of Garnett v Renton School District and the Board of Education of Westside Community Schools v. Mergens are a case in point. While in the Garnett, the petition by students objecting to the refusal of the school to allow them use of facilities for religious purposes during non-instructional hours relying on the provisions of the Equal Access Act met an unfavorable fate, the similar case of Mergens which was grounded on very similar situation as Garnett met a contradicting fate. These goes to prove that even the Supreme Court itself is divided in its perspective of the establishment clause as well as the free exercise clause and that these areas of the First Amendment is far from being settled. This is not surprising considering that Jefferson’s concept of “separation between the state and church” seemed to be different from the clause “from the disestablishment portion of the First Amendment. For while the amendment itself simply states the prohibition on the part of the state to enact laws or legislation that will establish religion, Jefferson’s separation seemed to be a far more complex idea. Whether the Supreme Court finally comprehends Jefferson’s perspective in its decisions will remain to be seen. References Abington School District v Schempp, 374 US 203 [1963] Adler v Duval County School Board, 260 F. 3d 1330 [11th Cir. 2001] Board of Education of Westside Community Schools v. Mergens 496 US 226 [1990] Corbett, Michael & Hemeyer, Julia Corbett. 1999. Politics and Religion in the United States. Taylor & Francis. Engel v Vitale, 370 US 421 [1962] Everson v Board v Board Education of Ewing, 330 US 1 [1947] Formicola, Jo Renee & Morken, Hubert. 1997. Everson Revisited: Religion, Education, and Law at the Crossroads. Rowman & Littlefield. Garnett v Renton School District, 675 F. Supp 1268, 1274 [WD Wash 1987] Lemon v. Kurtzman, 403 US 602 (1985) Lidsky, Lyrissa Barnett & Wright, George. 2004. Freedom of the Press: A Reference Guide to the United States Constitution. Greenwood Publishing Group. Hamburger, Philip Published. 2002. Separation of Church and State. Harvard University Press. Haynes, Charles C. 2003. The First Amendment in Schools: A Guide from the First Amendment Center. ASCD. Reynolds v United States, 98 US 145 [1878] Vile, John R. 2006. A Companion to the United States Constitution and Its Amendments Published by Greenwood Publishing Group. Wallace v Jaffree, 472 US 38 (1985) Walz v Tax Commission of the city of New York [1970] Read More