The is unconstitutional is not unconstitutional. The
The question of school prayer has been moved from one of the storage rooms way beyond the wings to somewhere prominently on stage, if not front stage and center. The most important thing about the discussion of a school prayer amendment is not school prayer as such. People of eminently good sense and religious conviction can disagree about whether there should be prayer in public schools and, if so, what kind of prayer and who should be in charge of it.
Those decisions should be made by thousands of communities and local school boards across the country. That is called democracy. An amendment is needed not to mandate or even to encourage school prayer but to restore to the people their right and responsibility to deliberate and decide a question that bears upon the kind of education they want for their children.Parents who are serious about the moral and religious formation of their children should have no illusions that adding a prayer at the beginning of the school day will achieve that goal. Public policy should help such parents send their children to schools that share their educational goals.
This means school vouchers, education tax credits, flexible charter schools, or other instruments that can enable parents to exercise real choice in education. That, however, does not obviate the need for a school prayer amendment, which might better be called an educational democracy amendment.Quite apart from the merits or demerits of prayer in public schools, an amendment is needed for three reasons. First, it is a necessary check upon the overreach of the imperial judiciary. The school prayer decisions of the early 1960s were a particularly blatant instance of judicial activism. The Constitution neither mandates nor prohibits prayer in the schools. What the Constitution says about school prayer is absolutely nothing.
For almost two centuries nobody thought that school prayer was a constitutional question. It was up to local communities and their school boards. (Some scholars claim that a fairly small percentage of public schools actually had such prayer.) That is the way it should be again. Those who claim that the American people are not capable of deciding the question in a civil and mutually respectful manner reveal an unseemly contempt for the democratic process.
Our point, however, is that what the Constitution does not say is unconstitutional is not unconstitutional. The Constitution does not say that prayer in the public schools is unconstitutional, therefore it is not unconstitutional. One may argue that school prayer is unfair, divisive, mischievous, or just plain dumb. But it is not unconstitutional, and apparently it will take an amendment to make that clear.The second reason for an amendment is that it will challenge the judicial advancement of the pernicious ideology of the naked public square, of American public life denuded of religion and religiously grounded values.
Whatever else one may think of the school prayer decisions of the 1960s, they sent a powerful message that ours is a secular society, and that a secular society is one in which religion must be expunged from any sphere that is designated as public. Combine that with the notion that public is a synonym for governmental and the conclusion is inescapable that religion must retreat wherever government advances-and government advances almost everywhere. This has been the unhappy pattern of more than thirty years. An amendment can check that pattern and perhaps, in due course, reverse it.The third reason for an amendment, closely connected to the first two, is that the incoherence of church-state jurisprudence over the last three decades is tied up with the school prayer decisions. Many, if not most, of the justices of the Supreme Court in the last decade have at one time or another publicly admitted that the Court has gotten itself into a brier patch of confusion and self-contradiction when it comes to the religion clause of the First Amendment.
In our view, the Court’s decisions have created a situation in which the no establishment provision of the religion clause has increasingly undercut the free exercise provision, even though the free exercise of religion is manifestly the purpose of the religion clause. Former Chief Justice Warren Burger has observed that the Court has in recent decades turned the religion clause on its head, and he is right. The proposed constitutional amendment could be a help in turning the religion clause right side up.Voluntary school prayer is not a constitutionally forbidden establishment of religion, unless one believes that government policies that favor religion constitute an establishment of religion.
Regrettably, the Supreme Court has at times indicated that it believes just that. The Court has said that, between religion and irreligion, the state must be neutral. Sometimes it has gone further, suggesting that religion, unlike irreligion, poses a threat to society and deserves, at most, legal protection as an individual choice or private eccentricity. That was not the view of those who wrote and ratified the Constitution, and it is not the view of the overwhelming majority of Americans today. It is the Court that has promulgated an eccentric view of religion, and it is the Constitution that provides the means for preventing the Court from imposing that view on the society, namely, a constitutional amendment.There are at present several versions of a proposed amendment, and it is not clear which will be favored by the congressional majority.
The best wording for the amendment will be the wording that best addresses the three concerns noted above. After an amendment is passed and ratified by the states, then the debate about the rightness or wrongness, the prudence or mischief, of school prayer can begin in earnest. Those who want that debate now, whether they are pro or con school prayer, are entirely premature.
Having the debate now assumes that this is a question for the federal government to decide. It is not. The debate about the school prayer amendment, then, is not about school prayer. It is about returning to the people a right and responsibility that was arrogantly usurped by an imperial judiciary. It is about the restoration of democratic self-governance.Religion Essays