RS 361E
School Prayer & Dual Nature of First Amendment
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Public Policy – government decisions designed to address public issues and problems. Public
policy is established by Constitution, law, and precedent; it constitutes the rules by which a
society lives. These rules, procedures and practices are determined by the authority of
government.
First Amendment – Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble and to petition the Government for a redress of
grievances.
Dual Nature of the First Amendment’s Religion Clause—refers to the fact that the First
Amendment sets forth two, potentially conflicting rules with respect to government and religion”
1. Non-establishment clause: “Congress shall make no law respecting the establishment of
religion”
2. Free exercise clause: “Congress shall make no law . . . prohibiting the free exercise [of
religion].”
Laws that seek to protect the free exercise of religion may also have the practical effect of
establishing religion. For example, a law protecting public school prayer could have the effect of
establishing religion in public schools.
The two rules must be balanced or held in tension—without the possibility of any
complete and final resolution of this tension. (A cynic might call this “affirmative action for
attorneys,” i.e., constitutionally ensuring that parties can always bring a legitimate First
Amendment case and thereby keep the legal profession employed.)
School Prayer Cases
Engel v. Vitale, 370 U.S. 421 (1962)
Vote: 6-1-0; H. Black – majority; P. Stewart- dissent
Facts--NY Board of Regents, which has power over state’s public school system, adopted the
following prayer as a daily procedure in state schools: Almighty God, we acknowledge our
dependence upon the Thee, and we beg Thy blessings upon us, our parents, our teachers and our
Country.
Ruling - Prayer struck down as violation because compelled by government officials and
considered violation of anti-establishment clause in furthering religious beliefs
Dissent- denial of this prayer for students wishing to participate is rejection of their free exercise
and the religious heritage of our nation.
School District of Abington Township v. Schempp, 374 U.S. 203 (1963)
Vote: 8-1; T. Clark – majority; P. Stewart- dissent.
Facts – At least ten verses from the Holy Bible shall be read, without comment, at the opening of
each public school on each school day. Any child shall be excused from such Bible reading, or
attending such Bible reading, upon the written request of his parent or guardian.
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School Prayer & Dual Nature of First Amendment
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Ruling – First Amendment requires government to be neutral in terms of religious exercise. This
practice, although voluntary, violates anti-establishment.
Dissent – Present records inadequate to say that establishment clause had necessarily been
violated. Should remand to trial court for further evidence on whether there was a violation.
Stone v. Graham 449 U.S. 39 (1980)
Vote: 5-4, per curiam (in the name of the court not individual justices) W. Rehnquist –dissent
Facts – Kentucky law requires posting of Ten Commandments, purchased with private
contributions, on wall of every public classroom in the statute.
Ruling – Court uses three part Lemon test ( purpose, effect and entanglement “PEE”) and finds
the law violated first part of test, i.e., it did not have a secular purpose.
In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court identified three “tests” for determining
whether a statute violates the establishment clause: First, the statute must have a secular
legislative purpose; second, its principal or primary effect must be one that neither advances nor
inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with
religion.’
Dissent – rejects Court summarily dismissing the case without looking to history and intent of
Kentucky legislation.
Treen v. Karen B., 455 U.S. 913 (summarily affirmed) (1982)
Facts – Louisiana Statute authorizing student volunteers to lead classroom prayer in public
schools violates Establishment Clause. The statute authorized teachers to inquire whether any
student wished to offer a prayer and, if no student volunteered permitted teachers to pray,
notwithstanding that no student or teacher was compelled to pray or that under Parish regulations
any student who desired to participate in a minute of prayer was required to submit express
written permission of his parents and make a verbal request to join in the exercise.
Ruling - Fifth Circuit found statute unconstitutional and Supreme Court summarily affirmed,
Wallace v. Jaffree, 472 U.S. 38 (1985)
Vote: 5-4; 6 opinions; Stevens – majority, Rehnquist – dissent
Facts – Alabama law that authorized a period of silence "for meditation or voluntary prayer"; and
enacted in 1982, which authorized teachers to lead "willing students" in a prescribed prayer to
"Almighty God . . . the Creator and Supreme Judge of the world." The federal district court
concluded that, because the ban on establishment did not apply to the states, Alabama had the
power to establish religion.
Ruling - The addition of “or voluntary prayer” indicates that the State intended to characterize
prayer as a favored practice. The Court found statute in violation of the establishment clause.
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School Prayer & Dual Nature of First Amendment
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Dissent – The Framers intended the Establishment Clause to prohibit the designation of any
national church. Moreover, it was intended to stop the preference for one religion over another. It
did not, however, require government to be neutral between religion and irreligion. Additionally,
states should be able to pursue legitimate secular ends through nondiscriminatory sectarian
means.
School Prayer Amendment 1984
Forty-nine governors introduced a call for an amendment in 1964. The issue lay dormant until
1984 when President Reagan introduced the following to Congress (but it never passed):
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.
In June 1998, House members voted 224 to 203 in favor of a school prayer amendment, but that
simple majority fell far short of the two-thirds majority needed for approval.
Lee v. Weisman, 505 U.S. 577 (1992)
Vote: 5-4; A. Kennedy – majority; A. Scalia - Dissent
Facts – The case arose from Providence, Rhode Island, whose middle and high school principals
invited members of the clergy from around the city to give invocation and benediction prayers
as part of their schools' graduation ceremonies. Guidelines provided for prayers.
Ruling- Thirty years after Engel, the Court extended the principle to hold that a state may not
sponsor prayers at middle and high school graduation ceremonies.
Dissent- “…a page of history is worth a volume of logic.” Our history is replete with such public
thoughts and prayers. The Establishment Clause is being misunderstood.
Sante Fe Ind. Sch. Dist. v. Doe, 530 U.S. 290 (2000)
Vote: 6-3; Stevens – majority; Rehnquist - dissent
Facts – A student elected as Santa Fe High School's student council chaplain delivered a prayer
over the public address system before each home varsity football game. While the suit was
pending, petitioner school district (District) adopted a different policy, which authorizes two
student elections, the first to determine whether "invocations" should be delivered at games, and
the second to select the spokesperson to deliver them.
Ruling - The District's policy permitting student-led, student-initiated prayer at football games
violates the Establishment Clause. It implicitly encourages public prayer--is not properly
characterized as "private" speech.
Dissent - The Court seems to demand that a government policy be completely neutral as to
content or be considered one that endorses religion. This is undoubtedly a new requirement, as
our Establishment Clause jurisprudence simply does not mandate "content neutrality."