For most people, the rising wall of separation wasn't apparent until the Supreme Court outlawed state-sponsored prayer in public schools in Engel v. Vitale (1962). The problem arose when the New York Board of Regents tried to compose an innocuous, nondenominational prayer that could be recited in New York public schools. The text of the prayer was simply, "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Ironically, some Christians who might otherwise support school-sanctioned prayer are against prayers like this one, precisely because they are so neutral and devoid of any particularly Christian characteristics.
It is important to understand that the board was adamant that no child should be compelled to join in the prayer, or even encouraged to do so. Yet when the New York suburban school board of New Hyde Park adopted the prayer, the Supreme Court ruled it unconstitutional. It is inarguable that the principle established in Engel-that state-sponsored school prayer is constitutionally forbidden-is now firmly rooted in modern constitutional law. Lower courts are bound by the principle of Stare Decisis to follow that precedent. (The Supreme Court is also guided by Stare Decisis, but it has the power to reverse its earlier holdings.) That Engel is now the law of the land doesn't alter the fact that many still believe that the Supreme Court wrongly decided it in the first place, based on its misreading of the Constitution and American history. Nothing better highlights this than reference to the learned rulings of the lower New York courts in that case, all of which found the prayer constitutional. Their honest pronouncements, though rendered a legal nullity by the Supreme Court, are instructive for all who long for constitutional interpretation according to the framers' original intent.
First Amendment scholar George Goldberg aptly observed, "Of the first thirteen judges who considered the constitutionality of the Regent's Prayer, among whom were some of the most learned appellate judges in the nation, eleven found it valid, a batting average of .846; and some of them felt strongly that any other decision would be historically wrong and itself constitutionally objectionable." The chief judge of the New York Court of Appeals minced no words:
Not only is this prayer not a violation of the First Amendment ... but holding that it is such a violation would be in defiance of all American history, and such a holding would destroy a part of the essential foundation of the American governmental structure. And as Goldberg noted, the language of one of the concurring judges was even stronger:
It is not mere neutrality to prevent voluntary prayer to a Creator; it is an interference by the courts, contrary to the plain language of the Constitution, on the side of those who oppose religion.
Some like to point out that Engel has been widely misunderstood. It did not, they say, "take God out of the schools." It merely prohibited state-sponsored prayer. Even the current Supreme Court has said as much.6 But such analyses are oversimplified. It's one thing to say that only state-sponsored prayer is outlawed and another to define the parameters of state sponsorship. Suffice it to say, it doesn't take much state activity at all to trigger state sponsorship under modern precedent. The 1985 case Wallace v. Jaffree held that public schools may not set aside a period of silence at the commencement of the school day if there is the mere suggestion that students might use the time for prayer.7 It strains the imagination to conceive how moments of
The court made this clear in Santa Fe Independent School District v. Doe, 530 U.S. 290, 313 (2000), "Thus, nothing in the Constitution as interpreted by this Court prohibits any public school student from voluntarily praying at any time before, during, or after the schoolday. But the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer."
Wallace v. Jaffree, 472 U. S. 38 (1985). The court said that the Establishment Clause does not forbid voluntary silent prayer, but in this case, the Alabama legislature already had a statute in place permitting silent time for meditation. So when -the legislature amended the statute to read "meditation or voluntary prayer," the court concluded that it was suggesting prayer, because there was no other reason for the additional language. As such, the statute had no secular purpose and was invalidated.
silence constitute state endorsement of religion, especially a particular religion. But the law is nonetheless what the Supreme Court says it is.
While the court can protest that it has not unduly restricted religious freedom, its "modern" decisions, beginning with Everson and continuing through Engel and Wallace, have greatly emboldened those hostile to Christianity to scrub away prayer and other religious expression from our public schools.
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