Prayer In School
And States' Rights
Wayland Dong
From: "Wayland Dong"
To: "Positive Atheism" <editor@positiveatheism.org>
Sent: October 25, 2001 11:47 PM
Subject: Church/state separation details
In your otherwise spot-on (as usual) reply to Unsigned in "Now My Child Cannot Pray in School," you state with respect to the illegality of coercive official prayer:
This was not true only since the Murray vs. Curlett case, but has been the case since 1789, when the United States of America was founded. It has always been illegal for those on-duty government workers to tell citizens when and how to pray. |
While the substance of your argument is valid, your statement is actually not true. It has not been illegal "since 1789" but only much more recently. The real story is quite complicated and must be discussed in the context of States' rights.
The 1st Amendment ban on establishment was with respect to Congress only (and perhaps the rest of the Federal government by extension). It was unconstitutional for the Federal government to pass a law to pray (hence Jefferson's refusal to declare a day of prayer), but there was nothing unconstitutional about a state law requiring people to pray. In fact, a number of states (I believe two, Massachusetts and Connecticut?) did not disestablish (i.e., still had an official, State-sponsered, taxpayer-supported church) until the next century.
The same applies to all the rights in the Bill of Rights. For the first hundred years or so of the country, they applied only to the Federal government. Now to be sure, most state constitutions at the time had a bill of rights or similar, but they were somewhat haphazard in that not all rights were guaranteed in each state.
Madison, when he authored the Bill of Rights, included a provision that would have extended the disestablishment of religion (but not the other rights) to the states. It was removed during Congressional debates as being an infringement of state sovereignty.
Besides, at that time the role of the Supreme Court as arbitrator of Constitutionality decisions was not established, and many state courts did not recognize the SC's appelate jurisdiction over their decisions. State courts (and Congress and the President, for that matter) often ignored SC rulings they didn't like. All told, if at the time someone wanted to object to religious establishment, the Constitution was largely irrelevant, and the appeal would have been to that state's courts based on that state's constitution. In Massachusetts in the late 18th century, for instance, a suit against school prayer would have been groundless.
It is the 14th Amendment, which says "... nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws," that requires the states to respect the rights in the Bill of Rights.
However, that was not the initial interpretation by the Supreme Court in the immediate post-Reconstruction era. Although they never dealt with prayer, with regard to several due process cases it ruled more narrowly that the 14th could be used to invalidate unfair state legislation, but the justices were uncomfortable with extending any rights to the civilians. These were pro-states rights-leaning Courts that gave us, for example, the separate-but-equal ruling. It was not until the middle of the 20th century that the more activist, pro-Federal Court ruled that the 14th Amendment had extended the Bill of Rights rights to all, in all those monumental civil rights decisions.
Interestingly, the current Court also tends to lean in the pro-states rights direction, so the pendulum is swinging back.
The difference now is that the Court is enshrined and respected as the final voice in constitutional decisions (as one justice once said, "The Constitution says what the judges say it says."), and no one argues over the Court's jurisdiction. The First Amendment now applies to the States as well as everyone else, by many decades of practice as well as precedent.
Anyways, this doesn't change the substance of your argument, just the details. As usual, the details are messy, but interesting.
Wayland
From: "Positive Atheism" <editor@positiveatheism.org>
To: "Wayland Dong"
Subject: Re: Church/state separation details
Date: October 26, 2001 12:42 AM
You're right on the technicality, but I don't think it was ever legal for the government to tell us to pray (or even to recommend that we pray). It was never legal for the Federal government, and the only question was regarding the States, most of which barred such activities.
It has been illegal since at least the Fourteenth Amendment. Jefferson said that the authority was not granted to him as President to tell his constituents to pray.
This letter was from Indiana, and we would need to see what that State said about it in their Constitution from its admission in the early nineteenth century to the ratification of the Fourteenth Amendment.
Finally, the issue here is the public schools: the "Christian Nation" revisionists just love to ignore the fact that public schools are a relatively recent invention. I'm not sure of the exact figures, but it seems to me that Murray vs. Curlett has been in effect for about as long as the public schools had been around at the time that case was decided! Seen from that perspective, their whining about "the good old days" begins to take on an entirely different meaning for us.
Our Fourteenth Amendment was ratified about the time England began popularizing the concept of the public school as a way to eradicate the child labor problem. Thus, I doubt that any public schools existed in America before the Fourteenth Amendment was ratified.
Thus, I would suspect that every public school that has existed in America has always been under the thumb of the First Amendment as interpreted by the Fourteenth Amendment.
We did post a blurb about the Fourteenth Amendment from constitutional scholar Gene Garman, "President, States, Courts Bound By First Amendment." It just slipped my mind to remember those details because it has essentially never been legal for them to try to get us to pray -- regardless of which jurisdiction was at work preserving this right for us.
Cliff Walker
Positive Atheism Magazine
Six years of service to
people with no reason to believe
From: "Wayland Dong"
To: "Positive Atheism" <editor@positiveatheism.org>
Subject: Re: Church/state separation details
Date: October 29, 2001 8:54 PM
You're right on the technicality, but I don't think it was ever legal for the government to tell us to pray (or even to recommend that we pray). It was never legal for the Federal government, and the only question was regarding the States, most of which barred such activities.
The only reason I bring it up is that you used the phrase "since 1789," obviously referring to the Federal Constitution. To get even more technical, it hasn't been illegal for the Federal government since 1789 but since the ratification of the Bill of Rights, which was a couple years later. (Unless you subscribe to Jefferson's interpretation of states' rights and implied powers, but that has more to do with Federalism issues than separation.)
But my point was that, depending on the State, it may well have been perfectly legal. Virginia, notably, had their Statute of Religious Freedom that predates the Constitution, while Massachusetts still had an official church for years after the Constitution! Far more egregious than prayer in public schools is a direct tax to support a church (not this indirect stuff like tax exemption, although that's pretty galling too).
It has been illegal since at least the Fourteenth Amendment.
Again, technically, it's only been illegal since Supreme Court interpretations of the 14th Amendment to that effect.
I would suspect that Indiana, like most states admitted after the Union was established, virtually copied in their state constitution the language from the Declaration of Independence, the Constitution, and the Bill of Rights, so that disestablishment was in there from the beginning.
Our Fourteenth Amendment was ratified about the time England began popularizing the concept of the public school as a way to eradicate the child labor problem. Thus, I doubt that any public schools existed in America before the Fourteenth Amendment was ratified.
What were all those one-room country schoolhouses (where Lincoln, et al, got at least some education), with a school teacher supported by the town, if not public schools?
We did post a blurb about the Fourteenth Amendment from constitutional scholar Gene Garman, "President, States, Courts Bound By First Amendment." It just slipped my mind to remember those details because it has essentially never been legal for them to try to get us to pray -- regardless of which jurisdiction was at work preserving this right for us.
I did see Gene Garman's article, and that plus a book I just finished on states' rights had me thinking about the technicalities of it. I'm a bit of stickler for details. I like it messy.
You are of course correct that the essential philosophical framework of disestablishment and the wall of separation, has been there from the beginning. Coercive prayer in public situations may have been technically legal in some places at some times in our history, but it has always been wrong.
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