The James Wilson Foundation on Natural Rights and the American Founding

“Is it Time to Rethink the School Prayer Cases?” — Francis Beckwith

Prof. Francis Beckwith argues that the Supreme Court should overturn Engel and Schempp, which put religious people at a decided disadvantage, rather than establishing religious equality. Returning to the original understanding of the First Amendment would enable local governments to seek the common good. 

Some excerpts:

There was a time, not too long ago, when politicians in both major political parties often would run for office by promising that they would ‘put prayer back in the public schools.’ This was the result of the near universal public outrage over two Supreme Court decisions in the early 1960s—Engel v. Vitale (1962) and Abington Township School District v. Schempp (1963) —which effectively banned public school sponsored prayer and Bible reading.  Although the recurring promises of politicians to restore prayer to the public schools began to dissipate in the early 1990s, the issue has not entirely vanished from our public life, as indicated by the occasional elected official or academic who broaches the topic.

“Nevertheless, there is a general sense that Engel and Schempp are settled law, that it is highly unlikely that the current Court, even with its 6-3 originalist majority, would even entertain overturning those precedents.  That may very well be true as a matter of judicial politics, but that tells us nothing about the quality of the Court’s majority opinions.  As I will argue, a careful look at the Court’s reasoning in the two decisions reveals not only weak arguments, but also assumptions about the nature of religion as a public good that are inconsistent with the Court’s own holdings.”  

The lesson that Justice Black derived from that history was not only that the Establishment Clause now prohibits any government in the United States from establishing an official church (e.g., Massachusetts could not establish the Congregational Church, whose local ministers might be appointed by the Governor) and coercing its citizens to participate in its practices, but also that any government may not support, endorse, or influence any religious activities whatsoever. Although Justice Black is certainly correct that the original understanding of the Establishment Clause was that the government could not establish an official church nor enforce religious coercion, his second point is very difficult to defend. (I am assuming, for the sake of argument, that the incorporation of the Establishment Clause through the 14th amendment is unproblematic. In this regard, Vincent Phillip Muñoz’s work is worth considering.)

In his Schempp dissent, Justice Stewart viewed all this very clearly.  Responding to the majority’s claim that the barring of school initiated voluntary prayer and Bible reading strikes a blow for state neutrality on religion, he argued that the bar establishes just the opposite. It affirms a scheme of compulsory education that requires students to spend a good part of their day in a structured environment in which community-led voluntary religious activity is deemed impermissible. This, Justice Stewart observed places religion ‘at an artificial and state-created disadvantage.’”  

There are, of course, good reasons why a school district may not institute a voluntary prayer policy like the one in Engel.  It may conclude that, on balance, given the religious and philosophical diversity of the community, such a policy may create more ‘heat than light.’ Even religious parents—ordinarily disposed to support voluntary school prayer—may hesitate to advance such a policy because the district’s administration and teachers are personally hostile to religious faith.  These parents may rightly think that they would rather have no prayer than a prayer poorly or disrespectfully executed.   But these considerations are part of what contribute to the deliberations of democratic institutions, and are not matters that the First Amendment, as originally understood, even addresses.  For this reason, a Supreme Court that overturns EngelSchempp, and their legacy may help to restore and reinvigorate the type of local governance over public education that inspires greater citizen participation and allows for more voices to be heard.  And who knows, it may remind us of what virtually everyone, including Justice Black and the American Founders, thought they had good reason to believe, namely, that religion is a public good.”  

Read the full piece here.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790