The Threat to the American Idea of Religious Liberty - Robert S. Peck

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

The Threat to the American Idea of Religious Libertyby Robert S. Peck^*

With the Supreme Court unlikely to overturn its public school prayer decisions,¹ those who seek a greater religious presence in education have launched two complementary strategies intended to expand existing guarantees of school-related worship rights.

The first strategy is a renewed effort to pass a school prayer constitutional amendment utilizing the political muscle that conservative religious interests demonstrated in the 1994 elections and which resulted in the first Republican controlled Congress in forty years. The amendment movement dangerously attempts to authorize the use of government offices for purposes of religious indoctrination. Though previous efforts at authorizing public school prayer through a constitutional amendment have failed,² the new political landscape forces those concerned with constitutional freedoms to take today's effort seriously.

The second approach being pursued is a litigation strategy that seeks to avoid traditional Establishment Clause³ concerns by emphasizing the ostensible private status of the religious speaker in the public setting, minimizing the actual involvement of public authority, and framing the issue as one implicating only freedom of speech. This is a more sophisticated philosophical and legal effort than the constitutional amendment drive and is not without its appeal to civil liberties advocates. Yet, it too is flawed because it has the potential to reduce religious exercise to the status of mere expression, to convert the Establishment Clause into a largely meaningless exhortation, and to transform our public schools into arenas of religious rivalry. None of these results would be beneficial to the purportedly explicit goal of guaranteeing religious liberty proffered by the policy's advocates.

There is a strong likelihood that these efforts, started as separate enterprises, will converge, reconfiguring the constitutional amendment movement into one about freedom of religious expression. The arguments against the two strategies will also then converge.

This article will examine the folly of attempting to amend the Constitution to establish some greater right to engage in prayer in school than currently exists, as well as the stalking horse nature of attempting to denominate the issue as one of free expression. It will survey the development of the American idea of religious liberty as one that sees government and religion operating in largely autonomous spheres and how today's proposals amount to a rejection of that heritage. Furthermore, it will examine the insufficiency of declaring all student speech private speech in order to bring it under the rubric of the First Amendment's free expression protections.⁴ This article will demonstrate that although the First Amendment does afford religious expression some status as constitutionally protected free speech, the Establishment Clause uniquely operates as a limitation on certain types of religious expression in the classroom, an impediment that is not present when the speech falls within other subject areas.

I. Filling the Void in Church-State Law

The opening that has given shape to both the constitutional amendment and litigation strategies to change church-state law is the Court's own confused Establishment Clause jurisprudence. It can easily be read as an invitation to formulate a new approach to issues of church and state that would lend clarity to the crazy quilt of existing precedents, which careen inexplicably from strict separationism to loose accommoda- tionism and sometimes beyond. The Court's difficulty in this area has not escaped the attention of commentators. Former Solicitor General Rex Lee once observed that "a decent argument can be made that the net contribution of the Court's [Establishment Clause] precedents toward a cohesive body of law . . . has been zero. Indeed, some would say less than zero."⁵ Historian Leonard Levy has added that "a strict separa-tionist and a zealous accommodationist are likely to agree that the Supreme Court would not recognize an establishment of religion if it took life and bit the Justices."⁶

One reason for the Court's incomprehensibility in this area of law is its treatment of the basic test enunciated in Lemon v. Kurtzman.⁷ The Court announced in Lemon that a challenged governmental action would be upheld against Establishment Clause attack only if it (1) had "a secular . . . purpose," (2) had a "principal or primary effect . . . that neither advances nor inhibits religion," and (3) did "not foster 'an excessive government entanglement with religion.'"⁸ The Lemon test was a synthesis of the Court's earlier church-state pronouncements in Everson v. Board of Education of Ewing Township? School District of Abington Township v. Schempp,¹⁰ and Walz v. Tax Commission.¹¹ Despite this seemingly solid grounding, the Court has never been entirely comfortable with the Lemon test. In 1973, just two years after announcing Lemon, the Court conflictingly described the test's three prongs as both "well-defined"¹² and "no more than helpful signposts."¹³ The Court has declined to use Lemon in a small number of cases,¹⁴ and some justices have expressed their desire to overturn it.¹⁵ The result is that advocates before the Court in church-state cases are forced to argue their position both under Lemon as well as under alternative theories.¹⁶

The Court's confused treatment of Lemon¹⁷ does not, however, mean that the Constitution ought to be amended. The quest for a single doctrinal gauge in so complex an area, where relations between the secular and sectarian are forever changing and pervasive, is probably an impossible dream.¹⁸ Any conceivable version of a school prayer or religious expression amendment would not help the Court find a more coherent or workable rule, a pursuit to which the Court has devoted considerable time and energy. Moreover, reformulating organized prayer as free speech would not assist the Court in rendering more principled decisions, but ultimately would undermine the concept of religious liberty by establishing an intrusive governmental role.

II. The American Concept of Religious Liberty

In proposing a school prayer amendment, Speaker of the House Newt Gingrich was tapping into the frustrations of many devout Americans who have been fed a steady diet of the myth that the Supreme Court had overstepped its bounds and had "made God unconstitutional."¹⁹ He pledged to bring the measure to the floor of the House of Representatives for a vote by July 4.²⁰ Gingrich demonstrated his own constitutional ignorance on the subject when he defended his proposal on a television talk show. Mistakenly claiming that a St. Louis youth had recently been disciplined for saying grace over lunch, Gingrich declared, '"Most people don't realize that it's illegal to pray' in public schools."²¹ Of course, in reality: "Nothing in the United States Constitution as interpreted by this Court. . . prohibits public school students from voluntarily praying at any time before, during, or after the school day."²²

Gingrich initially endorsed language proposed at the end of the 103rd Congress by Representative Ernest J. Istook Jr. (R-OK), who was given responsibility for heading the school-prayer amendment task force. The Istook amendment, H.J. Res. 424, read:

Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer. Neither the United States nor any State shall compose the words of any prayer to be said in public schools.²³

Though crafted with an obvious eye to eschewing coercive conduct and preventing government officials from creating a prayer like the Regents Prayer that was invalidated in Engel v. Vitale, the amendment would have still permitted a public school teacher to choose any existing prayer and lead the students in its recitation, only conceding that objecting students could elect to sit quietly in the room. Nothing in its language would have prevented the courts, consistent with the ruling in Engel, from finding that any organized voluntary classroom or school assembly prayer still violated the amendment's own "required participation" prohibition because of the coercive environment of the classroom. Engel found that religious ceremonies taking place under the auspices of public school authorities were inherently coercive.²⁴ Subsequent decisions have indicated no retreat from this principle.²⁵ Thus, the Istook proposal, if enacted, may well have been ineffective in accomplishing its obvious purpose.

Even the most likely allies of a school prayer amendment objected to the Istook formulation. At a conference shortly after Gingrich's intentions on school prayer had been announced, Jay Sekulow, chief counsel to the Pat Robertson-led American Center for Law and Justice, indicated his clear opposition to the Istook language, largely due to the authority it placed in school officials.²⁶ Beverly LaHaye, founder of the conservative Concerned Women for America, said some of her constituents would only support school prayer that was made explicitly in the name of Jesus Christ, "which we know is not going to go through."²⁷ The difficulties posed by Istook's language made LaHaye wonder "what magician is going to write this language .... Prayer is not supposed to divide people, but to bring them together. So if prayer is going to be the big battleground, maybe we should sit back and take a long look at it."²⁸

Although congressional supporters of a constitutional amendment returned to the drafting table after this experience and denigrated their own proposal as merely something to get the discussion started,²⁹ the idea of an amendment is inconsistent with well established American principles of religious liberty.

Fundamental to the American concept...