An End to the End of School Prayer?
by permission of Benjamin Wiker
as printed in The National Catholic Register


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An End to the End of School Prayer?

Reprinted with permission by Benjamin Wiker in the National Catholic

I am not old enough to have experienced prayers being said in public school, but I do remember the “moment of silence,” an awkward half minute where (for some mysterious reason) we were to bow our heads reverently at the beginning of homeroom and, well, be silent for a bit.

I think that was in fourth grade, because I still remember Mrs. Anderson – who had a really neat plastic, artificial hand, was excruciatingly kind and cheerful and was my best teacher – with her head dutifully bowed, eyes shut tight in concentration, taking the whole thing very seriously.

I guessed that we were supposed to be praying, so I did.  At least sometimes.  And sometimes I just watched Mrs. Anderson.

We didn’t know why we had these moments of meditation because no one told us that school prayer had been banned via the Supreme Court decision Engel v. Vitale (1962).  The moments of silence were what teachers who still wanted school prayer did to skirt the law.  But even moments of silence were officially quashed by the Supreme Court in Wallace v. Jaffree (1985). 

Such was the flow of secularization in our public schools.  These cases – and others that resulted in prohibiting Bible reading from schools, taking down Ten Commandment plaques from court rooms, yanking crèches from public squares, removing religious statuary from public land and nixing Bible verses from “Welcome to …”  signs outside small towns – all go back to the single Supreme Court case, Everson v. Board of Education (1947).

Everson set in judicial stone the notion that the First Amendment’s “clause against establishment of religion by law was intended to erect ‘a wall of separation between church and state.’”  So declared Justice Hugo Black.

But here’s the interesting thing: The famous phrase about a “wall of separation” is not in the relevant text of the First Amendment, which actually reads: “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

The phrase “wall of separation” itself actually comes from Thomas Jefferson’s letter to the Danbury (Conn.) Baptist Association (1802).

Justice Black quite literally inserted Jefferson’s views into the First Amendment – so effectively that, as Daniel Dreisbach, a historian of American law, point out, “The Jeffersonian metaphor has eclipsed and supplanted (the) constitutional text in the minds of many jurists, scholars and the American public.”

Hence the notion, built on Everson, that the state must build a “wall of separation” so that, for example, a public school is on one side of the wall and prayer on the other, with the state and the American Civil Liberties Union patrolling on top as border guards.

Sounds a bit too much like the Berlin Wall.

But now the wall of separation may be starting to crumble, and prayer may make its way back in through the cracks and toppled stones.

Mississippi’s House and Senate have just passed respective versions of a Schoolchildren’s Religious Liberty Act, each very similar to an act by the same name that Texas legislators pushed through in 2007.

The point of these acts (in the words of the Mississippi House version) is “to prohibit local school districts from discriminating against students based on their expression of religious perspectives” so that “each school district shall treat a student’s voluntary expression of a religious perspective on an otherwise permissible subject in the same manner that the district treats a student’s voluntary expression of a secular or other perspective on an otherwise permissible subject.”

Why, they ask, should secularism be given privileged status in our public schools while religion is muzzled?  Shouldn’t they both be protected equally?

To be more legally exact, the First Amendment demands that the government must not do anything to prohibit the free exercise of religion.  Governmentally imposed secularism in public schools violates the First Amendment by prohibiting prayer and free religious speech.

Mississippi is, therefore, using the Free Exercise Clause to combat the Supreme Court’s Jeffersonian “wall of separation” interpretation of the Establishment Clause.

It has very good reason to do so.

Everson was an irredeemably faulty decision.  As we’ve seen, the actual First Amendment doesn’t say anything at all about a “wall of separation.”  Indeed, “there is simply no historical foundation for the proposition that the framers intended to build the ‘wall of separation’ that was constitutionalized in Everson.”

If I might say so, “the greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.”

Everson established a precedent, but it did so based upon an erroneous view of the framers’ intentions, and “no amount of repetition of historical errors in (later) judicial opinions can make the errors true.”  In short, “the ‘wall of separation between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.  It should be frankly and explicitly abandoned.”

See the quotes?  Not my words.  Those are the words of the last Justice William R. Rehnquist, and they occur in his dissent to Wallace v. Jaffree, the cast that (as noted above) denied even a moment of silence in public schools.  Rehnquist was Chief Justice of U.S. Supreme Court for 19 years.  His judicial learning – and hence judicial condemnation of Everson – cannot easily be cast aside.  And in Wallace v Jaffree, Rehnquist declared, “Nothing in the Establishment Clause of the First Amendment, properly understood, prohibits any such generalized ‘endorsement’ of prayer.”  That is why we may soon witness the end of the end of school prayer.  But that doesn’t mean that we should opt for a theocracy.  The church and state should be distinct, and, in fact, the very distinction between the two was invented by the church itself (as Pope Benedict has rightly pointed out, and I argue in the more detail elsewhere).  But keeping the two distinct is not the same thing as separating the two with a Berlinesque Wall and driving religion out of the public square with a judicial stick.  The Mississippi law, if passed and signed, will undoubtedly be challenged all the way to the Supreme Court and that would be a good time to take a very close look at Everson.

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