The Santa Fe School District in Texas called its prayer policy at football games a reasonable compromise: Students, not school officials, would decide whether to choose a student speaker before the games. Students, not teachers, would elect the speaker. And the speaker, a student, would decide whether to offer a nonsectarian prayer or no prayer at all.
In a 6-3 decision, the High Court said the policy entangled the school in religion, while opening the door to a majoritarian approach to public worship. But based on prior court rulings, the approach looked more like an accommodation of religion, not an establishment. In the crucial 1992 Lee v. Weisman case that struck down high-school graduation prayers, the justices objected to prayers orchestrated by public officials - but upheld the practice of student-led petitions.
The more serious problem is the exotic claim about the alleged psychological "coercion" of student prayers. The majority of the Court worries about "immense social pressure" to participate, but neglects the fact that no one is compelled to attend after-school sports events. The justices essentially argue that in the wide orbit of public education, religious speech - unlike political speech or even profanity - is inherently coercive. The remedy: Use the power of government to keep faith in the closet.
But that cannot be the thinking behind the Establishment Clause. People do not have a constitutional right to never hear speech they might disagree with. Public schools used to be a place to learn that basic civics lesson.
Moreover, the Court's reasoning is a far cry from that of even the most secular-minded of the Founders. When Thomas Jefferson penned his famous Bill for Establishing Religious Freedom, he opposed tax support for churches and religious tests for public office - not public religious speech. As a Virginia lawmaker, he even supported a bill "Appointing Public Days of Fasting and Thanksgiving." Like nearly all of the Founders, Jefferson fought not merely for toleration, but for vigorous protection of religious expression.
Admittedly, the push for school prayers has gotten off track. Supporters often link the decline in public morals to Court decisions banning classroom prayers and Bible reading. Jesus said the prayers of the faithful can move mountains. But surely it will take more than watered-down prayers to an undefined Deity to promote piety or greater respect for faith. "For 12 years students see all subjects through a secular lens," says Charles Haynes, a First Amendment scholar at Vanderbilt University. "Public education is deeply flawed by its failure to take religion seriously."
Religious conservatives will be tempted to decry the Court ruling in apocalyptic terms: the end of any vestige of faith in public schools. Chief Justice Rehnquist, in his dissent, complained that the majority's opinion "bristles with hostility to all things religious in public life." He may be right.
But Haynes, who advises school districts in church-state disputes, says prayer supporters should use the decision as a catalyst for changing the culture of public education. Students can still meet for prayer, form Bible study groups, and even distribute religious literature on school grounds. Teachers can use textbooks that teach America's religious history. Churches can pair volunteer mentors with at-risk kids. People of faith have invested enough energy on efforts loaded with symbolism but light on substance.
Meanwhile, religious liberals should do a little soul-searching. For all the talk of coercion, how exactly does it bruise anyone's conscience to stand respectfully for a benediction at an after-school event? Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State, has actually suggested that classroom prayers could produce the kinds of alienated youth who stage a Columbine-style shooting spree. In the name of civility, these activists are poisoning civic discourse.
Surely Justice Scalia got it right in his dissent in Lee v. Weisman: "Maintaining respect for the religious observances of others is a fundamental civic virtue that government … can and should cultivate." Government seems more interested in cultivating public schools as religious-free zones than in molding students into well-rounded citizens. Maybe it's time we prayed the Supreme Court got out of the school-prayer business altogether.
Joseph Loconte is the William E. Simon Fellow in Religion and a Free Society at The Heritage Foundation.
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