Prayer in Public School Constitutional?
The 111th Congress is currently in session in Washington D.C. A joint resolution has been submitted to Congress that would make prayer in public school constitutional again. House Joint Resolution 6 (H.J. Res. 6) is titled “Proposing an amendment to the Constitution of the United States relating to voluntary school prayer.” This joint resolution is sponsored by Representative Jo Ann Emerson (R) of Missouri. It proposes an amendment that would allow prayer back into our public schools and public institutions. The resolution proposes the following amendment to the Constitution of the United States:
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 prescribe the content of any such prayer (House Joint Resolution 6).
Not only would this amendment allow prayer in public schools and public institutions, but it would prevent the government from compelling any person to participate or from controlling the content of that prayer. Presumably, the term “public institutions” includes state legislatures, city council meetings, and the like, and other forums in which public prayer has recently been constitutionally challenged.
In January 2009, this resolution was referred to the House Committee on the Judiciary. On February 9, 2009, it was referred to the Subcommittee on the Constitution, Civil Rights and Civil Liberties, where it remains today (H.J. Res. 6). The Subcommittee on the Constitution, Civil Rights, and Civil Liberties is comprised of:
Chairman Nadler (D) NY
Ranking Member Sensenbrenner Jr. (R) WI
Baldwin (D) WI
Cohen (D) TN
Conyers Jr. (D) MI
Delahunt (D) MA
Franks (R) AZ
Gohmert (R) TX
Jackson Lee (D) TX
Johnson (D) GA
Jordan (R) OH
King (R) IA
Rooney (R) FL
Scott (D) VA
Sherman (D) CA
Watt (D) NC (Committee on the Judiciary)
This amendment to the Constitution is an attempt to constitutionally overturn Supreme Court cases holding that prayer in public schools and other public institutions is unconstitutional because it purportedly violates the Establishment Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion”). In 1962, the Supreme Court in Engel v Vitale ruled that New York’s practice of beginning school days with a prayer composed by school officials violated the Establishment Clause (Engel v Vitale, 1962). Subsequently, the Supreme Court held that legislation allowing a school to provide a moment of silence or voluntary prayer violated the Establishment Clause of the First Amendment (Wallace v. Jaffree, 1985). In Lee v. Weisman, the Supreme Court held that student-led prayers at a high school graduation ceremony were unconstitutional as they violated the Establishment Clause (1992). Finally, and most recently, in Santa Fe Independent School District v. Doe, the Supreme Court held that student-initiated and student-led prayers at a football game violated the Establishment Clause of the First Amendment (2000). This is the current status of the law regarding prayer in public schools from kindergarten through high school.
The law on prayer in public institutions is less clear. The U.S. Supreme Court held in Marsh v. Chambers that the Nebraska Legislature did not violate the Establishment Clause when it hired a chaplain to lead a daily prayer before the legislature (1983). The Court reasoned, “In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society” (1983). Commonly known as the “Fabric of America” test, the Court based its ruling on the notion that the practice’s historical significance and longevity removes it from the realm of any effort to unconstitutionally establish a religion. However, in 2004, the Fourth Circuit Court of Appeals held that city council members in Great Falls, South Carolina violated the Establishment Clause by engaging “as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe” (Wynne v. Town of Great Falls, 2004). That same court one year later held that a county board’s practice of opening board public meetings with a prayer was not unconstitutional (Simpson v. Chesterfield Cty. Bd. of Supervisors, 2005). Hence, the guidance provided by the courts on prayer in public institutions is less than clear.
Joint House Resolution 6 would constitutionally undercut these cases and require courts to interpret the First Amendment in a way that does not preclude the use of prayer in public schools and public institutions. This proposed constitutional amendment would allow this country to hearken back to the sentiments expressed by Justice Douglas in Zorach v. Clauson, who penned the oft-quoted phrase, “We are a religious people whose institutions presuppose a Supreme Being” (Zorach v. Clauson, 1952). Justice Douglas went on to describe a paradigm for interpreting the Establishment Clause which has been lost in Establishment Clause jurisprudence:
When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence (Zorach v. Clauson, 1952, emp. added).
Under Article V of the Constitution of the United States, an amendment to the Constitution can be proposed by either (1) two-thirds of both houses of Congress or (2) by a convention called by application of two-thirds of the state legislatures, and requires that any proposed amendment be ratified by the legislatures of (or by conventions held in) three-fourths of the states (Constitution of…). However, the first hurdle House Joint Resolution 6 must clear is to make its way out of the Subcommittee on the Constitution, Civil Rights, and Civil Liberties. It may seem like this proposed amendment has a long way to go, but each journey begins with a single step.
But would not reinstating prayer in the classroom mean that prayers would be framed to include Muslims, Hindus, Buddhists, and other non-Christian religions? To answer that question, consider how this matter was handled for nearly 200 years in America. The public schools across the nation were riddled with Christian activity—from Bible readings to prayer. At that time, were there no Muslims, atheists, or Hindus in American schools? Of course there were. But no provision was made for their beliefs. While they were not persecuted, their non-Christian values were not incorporated into the fabric of the educational environment. Similarly, if a Christian family were to emigrate to Japan, Iran, or Cuba—no adjustments would be made to accommodate the Americans—nor should there be. The Founders recognized that the day might well come (though they shuddered to consider it) when many or most Americans would have abandoned the Christian system. In that case, the voters would place into political office and onto school boards those who would alter the fundamentally Christian orientation of the nation and its longstanding institutions (which is precisely what is happening). What has, in fact, prevailed for most of America’s history in schools is the practice of generic, denominationally-neutral Christian prayers and Bible readings. Since the vast majority of Americans still profess affiliation with the Christian religion, there is no legitimate reason why the nation’s schools could not return to their former condition. While we would not endorse prayers that promote a particular denominational stance, generic petitions to God are entirely appropriate. Even pagan monarchs of old recognized the critical importance of such—and were approved by God for their actions (e.g., Daniel 3:28-29; 6:25-27). Contrast such rulers with Pharaoh who defiantly declared, “Who is the LORD, that I should obey His voice to let Israel go? I do not know the LORD, nor will I let Israel go” (Exodus 5:2).
The important question here is: what step will you take? We can pray for these lawmakers, congressmen and congresswomen, who currently hold the fate of this resolution in their hands. We can politely encourage these legislators through calls, e-mails, and letters to let them know where their constituents stand on this issue as well as the importance of returning Bible reading to the classroom (cf. Miller, 2009). We can also place people in office who believe in prayer and the Christian heritage of this nation. So, take a step in the right direction.
This is not an effort to get the government to do what Christians should be doing. The Lord’s people must be busy praying constantly (1 Thessalonians 5:17). Specifically, one of the things we should pray for is our civil leaders, that they may conduct the affairs of government in such a way that we may live quiet and peaceful lives (1 Timothy 2:1-2). It is the duty and privilege of every church and every Christian to consistently pray and cast all our cares on our heavenly Father (1 Peter 5:7). That notwithstanding, prayers that saturate our communities, our schools, our government, our work, our homes, and our lives that reflect and proclaim our reliance on God and his saving grace as a people and as a nation, as Justice Douglas so aptly put it, “follows the best of our traditions.”
Committee on the Judiciary—Subcommittee on the Constitution, Civil Rights and Civil Liberties, [On-line], URL: http://judiciary.house.gov/about/subconstitution.html.
Constitution of the United States, [On-line], URL: http://www.archives.gov/exhibits/charters/constitution_transcript.html.
Engel v Vitale, 370 U.S. 421 (1962).
H.J.RES.6, Library of Congress, [On-line], URL: http://thomas.loc.gov/cgi-bin/bdquery/z?d111:hj6.
House Joint Resolution 6, [On-line], URL: http://thomas.loc.gov/cgi-bin/query/z?c111:H.J.RES.6.
Lee v. Weisman, 505 U.S. 577 (1992).
Miller, Dave (2009), “How Important is the Bible to America’s Survival?” Reason & Revelation, 29:25-31, April, [On-line], URL: https://apologeticspress.org/articles/240115.
Marsh v. Chambers, 463 U.S. 783 (1983).
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
Simpson v. Chesterfield County Board of Supervisors, 404 F.3d 276 (4th Cir. 2005).
Wallace v. Jaffree, 472 U.S. 38 (1985).
Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir. 2004).
Zorach v. Clauson, 343 U.S. 306 (1952).
REPRODUCTION & DISCLAIMERS: We are happy to grant permission for this article to be reproduced in part or in its entirety, as long as our stipulations are observed.