The Ironic State of Religious Liberty in America - Frederick Mark Gedicks

• Citation: Vol. 46 No. 3
• Publication year: 1995

The Ironic State of Religious Liberty in America

Frederick Mark Gedicks^*

The constitutionality of organized graduation or classroom prayer in public schools is an issue of continuing controversy in the United States. There are, of course, numerous policy arguments for and against allowing prayer in public schools, but I will be focusing on the constitutional issues and consequently will have rather less to say about policy. (I will disclose, however, that as a matter of policy, I think there are problems with public schools' organizing and sponsoring group prayer as part of graduation ceremonies or classroom activities; it would seem that Mr. Peck, Mr. Sekulow, and I all agree on that, if nothing else.) What perplexes me about this issue is why it continues to be an issue at all. When I think about prayer in public schools, I have a difficult time escaping the conclusion that there is really not very much at stake in the constitutional controversy over this practice. There are no constitutional obstacles to individual prayer in public schools,¹ and the effect of the Equal Access Act is to allow student-initiated group prayer on most public school campuses. In addition, it is rare that prayers given in the classroom or other official public school contexts have significant theological content. Consider, for example, one of the graduation prayers at issue in Lee v. Weisman,² the Supreme Court's latest decision in this area:

God of the free, hope of the Brave: For the legacy of America where diversity is celebrated and the rights of minorities are protected, we thank you. May these young men and women grow up to enrich it. For liberty of American, we thank you. For the liberty of America, we thank you. May these new graduates grow up to guard it. For the political process of America in which all its citizens may participate, for its court system where all may seek justice we thank you. May those we honor this morning always turn to it in trust. For the destiny of America we thank you. May the graduates of Nathan Bishop Middle School so live that they might help to share it. May our aspirations for our country and for these young people, who are our hope for the future, be richly fulfilled. Amen.³

It's hard to find anything to disagree with in this prayer. Although the words are undeniably eloquent, the sentiments expressed are nonetheless so innocuous, and are phrased so generally, that the prayer is virtually without content. As such, it is a perfect example of the American civil religion—"faintly Protestant platitudes which reaffirm. . . the religious base of American culture despite being largely void of theological significance."⁴

On the one hand, given the theologically vacuous nature of most organized public school prayers, it ought not to be that large of an imposition to ask that nonbelievers sit quietly through thirty or forty seconds of vaguely religious platitudes. In fact, when compared to the free exercise cases in which the Supreme Court has found that constitutionally significant coercion of religious belief does not exist, the argument that such coercion exists in graduation or classroom prayer situations like Weisman is ludicrous. In Lyng v. Northwest Indian Cemetery Ass'n,⁵ for example, the Supreme Court found that government action which threatened outright destruction of native American religion did not trigger the protections of the Free Exercise Clause.⁶

Compared to the coercion suffered by native American believers in Lyng, the offense experienced by nonbelievers who heard the Weisman prayer is pretty small constitutional potatoes. But this would seem to cut against public school prayer as much as it does in favor of it. Given that individual and student-led prayer is already permitted in public schools, and that graduation and classroom prayers are usually theologically inconsequential in the way I have described, very little is lost when such prayers are constitutionally prohibited or otherwise eliminated from public education. Even for those (like me) who believe that religion has been wrongfully excluded from American public life, and religious people unfairly treated by secular public institutions, public school prayer seems an issue that should not stir up passion against these wrongs.

But make no mistake, passions continue to be aroused by the constitutional prohibition of graduation and classroom prayer. Why do so many people seem to care whether public schools may sponsor or otherwise encourage prayer? While nothing very important seems to be at stake in an examination of the merits of public school prayer by itself, whether or not prayer is allowed in public schools has become a symbol of what has become known as the "culture war."⁷ For religious conservatives, the Supreme Court's prohibition of organized prayer in public schools encapsulates the moral decline of the last several decades. For civil libertarians, the return of organized prayer to public schools is reason to man the ramparts and drive the religious barbarians back from the gates that protect the rational peace created by post-Enlightenment liberalism. It remains important to discuss classroom prayer because the fault lines dividing opponents in this particular conflict are mirrored in many other conflicts about church and state, conflicts in which more significant religious liberty issues are at stake.⁸

Although I believe classroom prayer to be ill-advised, I do not believe that it is unconstitutional for any of the reasons advanced by Mr. Peck.⁹ At the same time, I believe that the strategy of using existing free speech doctrine to argue for individual and voluntary group prayer, exemplified by Mr. Sekulow, does not succeed in constitutional terms, and threatens authentic religious faith and worship as well.¹⁰ I will conclude by noting a political aspect to this controversy that I find troubling: Given that so little ought to be at stake in the controversy over public school prayer, the continued pursuit of satisfaction on this issue by some religious conservatives suggests the troubling possibility that they are seeking less to restore free exercise denied than to signal who is in charge of American politics and culture.

I.

Mr. Peck argues that the effort to pass a school prayer amendment rejects the American idea of religious liberty that confines government to public life and religion to private life.¹¹ He further contends that the effort to frame school prayer as primarily a matter of individual expression, as Mr. Sekulow does, ignores that the Establishment Clause imposes limitations on religious speech in public schools that do not restrict other kinds of expression. There are problems with both arguments.

With respect to the first argument, I am skeptical that there is anything like "the American idea of religious liberty"; if there is such an animal, my reading of American history suggests that until recently, it looked a lot more like Mr. Sekulow's idea than Mr. Peck's. Jefferson and Madison may well support Mr. Peck's reading of the American tradition of church-state relations, but it is far from clear that their views on the proper relationship of church and state...