FREE ESSAY ON IT'S NOT ABOUT SCHOOL PRAYER

IT'S NOT ABOUT SCHOOL PRAYER

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.