Religion & US Constitution-PART I

It is always fascinating how the US constitution, both in the way it was written down, and is practised, takes us back to the was I imagine some of our shastras may have been fashioned. There is the emphasis on clarity of thought, a clear practical focus, a rootedness in the 'present' with allowance for revision & amendment based on experience.

Below are excerpts from an article

that sketches the involved coutours of how the constitution deals with the issue of how Religion & The State should relate to one another in civil society.

The lesson seems to be that the constitution & the process of it's application (i.e. the Law / Judicial system) is at heart eminently practical, finely tailored & suited for the society for which it was designed. It also seems to be quite capable of revision to accomodate changes in this society. (One cannot help but contrast with the Indian Constitution, which, no matter how elegant on paper, does not quite reflect in its design, the society it is supposed to work, and still reflects more Western (pre &) post colonial ideals.

In the interesing trail of Case Law in the article below, one can marvel as to how finely the judges are nuancing their verdicts so as to satisfy those simple words of the Establishment clause, which basically forces the state to be religiously neutral, neither supporting, nor restricting freedom of Religious expression. (again, what a world of difference from the way "secularism" is practised in Indian courts. although, I'd say the judges by & large try to be good 'nyaymurti's in squeezing out good judgements from the high sounding latino-english wirds they are supposed to interpret!)

Especially interesting is the way the US courts said yes to 'meditation' (a non-religious activity) and no to 'prayer' (a religious activity) in public schools!

It's all in the definition… [see pg 87]

Prayer, the Public, and the Constitution: An Introductory Guide

Essay contributed by Dr. Robert Tuttle

Professor of Law and David R. and Sherry Kirschner Berz

Research Professor of Law & Religion

The George Washington University Law School


…public religious events and displays can bring conflict, with disagreements

about the content of our prayers. They can also create estrangement, as

those who do not share the religious beliefs being celebrated find themselves excluded from the community.

This two-sided character of public religion is mirrored in the words of the

Religion Clauses of  the U.S. Constitution's First Amendment,

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Over the past half-century, the Supreme Court has developed two fundamental principles for understanding and applying the Religion Clauses.

First, the Constitution provides substantial protections for the beliefs and practices of religious communities and individuals. Second, the Constitution imposes significant limitations on the government's ability to sponsor or promote religion.

In other words, the government must protect religious activity, but the government must not engage in religious activity.


Religion in Public Schools

Over the past 50 years, problems involving religion in public schools have produced more prominent litigation and public turmoil than any other area of Religion Clause law. The federal courts only entered this arena in the 1940s, after the Supreme Court ruled in Everson v. Board of Education (1946) that the Establishment Clause of the federal Constitution applies to state and local governments – the authorities most responsible for the conduct of public schools.

During the previous 100-year history of public schools, religious exercises were commonplace. Daily instruction would begin with scripture reading, prayer, and singing of hymns. These religious observances recognized a diversity of religious views, and aimed to be "nonsectarian" – but by that, educators meant "not preferring any Protestant denomination." Teachers and their students generally read from the Protestant King James Version, and not the Roman Catholic Douay Bible. With rising Catholic immigration during the first half of the 19th century, the Protestant religious practices in public schools began to cause tensions. At first, a number of jurisdictions allowed public funds to be used for Catholic parochial schools, but by the 1850s newly adopted state constitutional amendments barred the practice.

With that avenue closed, Catholics in some jurisdictions demanded that public schools stop all religious exercises. Most jurisdictions rejected their claims, but in 1869 the Cincinnati school board decided to eliminate school-sponsored Bible reading and prayer.

The board's decision was appealed to the state courts, on grounds that religious exercise and instruction were important to the welfare of students and the society. In its 1870 decision, Minor v. Board of Education, the Supreme Court of Ohio upheld the school board, ruling that the board was permitted to make that decision. Notably, the Ohio court did not require all school districts in the state to follow Cincinnati's lead.

In the last decades of the 19th century and the first decades of the 20th, many state supreme courts were confronted with the question of prayer and Bible reading in public schools. Most courts ruled that their state constitutions did not prohibit religious exercises in public schools, but a number of state high courts (along with a fewstate legislatures) took the contrary position, and ruled that the exercises were unlawful. The courts that prohibited religious exercises in public schools cited concerns about religious minorities who were being required to participate in Protestant prayer and scripture reading. Several of the states that continued to permit religious exercises attempted to deal with such concerns by allowing dissenting students to be excused, on their parents' request, from religious activities. Not all states, however, allowed students to opt out, a judgment usually based on the belief that the exercises were necessary for students' moral development.

In West Virginia v. Barnette (1943), the Supreme Court ruled that public schools must allow students to opt out of the Pledge of Allegiance if they are conscientiously opposed to saying the Pledge. The Barnette decision secured the same opt-out right for students who objected to participating in public school religious exercises. At that time, the Supreme Court showed no signs of directly addressing prayer and Bible reading in public schools.

In 1948, however, the Court decided McCollum v. Board of Education, a case that held unconstitutional the practice of bringing clergy of various faiths into public schools for religious instruction during the school day. Students could only participate if their parents approved, and the parents were able to select among the various clergy, or decline to have their children receive religious instruction. The Court focused on the role of teachers and school administrators in channeling students into the program, and ruled that the state could not lend this kind or extent of support to religious education. Even though the instruction was optional and was not conducted by school employees, the Court still found that the connection between religion and state power, including compulsory school attendance laws, was too close.

Four years later, the Court demonstrated the complexity of line drawing in this context when it upheld a slightly different plan for linking public schools and religious education. Zorach v. Clauson  (1952) involved a plan under which students, on request of a parent, were released from public schools to attend religious instruction in their own place of worship. If parents did not make that request, then their children remained in the classroom.

Contrasting the program struck down in McCollum, the Court found that the Zorach plan involved no public sponsorship of religion.

Instead, the Court reasoned that the Zorach plan represented only the government's proper role of accommodating public institutions and programs to the religious needs of students. The program was open to all religions that wanted to participate, and did not penalize students who stayed at school. Thus, the Court concluded, the public schools were not engaged in religious instruction, but were simply facilitating parents' religious education of their children.

The contrast between McCollum and Zorach reflects the two fundamental principles of Religion Clause law: while government may not sponsor or engage in religious activity, it has the authority to respect and facilitate the religious practices of its citizens.

A decade after Zorach, the Court heard a pair of cases that would prove to be the most important, and the most controversial, of all decisions involving religion in public schools. In Engel v. Vitale (1962), the Court held unconstitutional the use of the Regents Prayer in New York's public schools. The prayer, composed by state education authorities, was designed to be religiously inclusive. It read: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." Students who objected to saying the prayer were allowed to opt out of the daily ceremony.

Although the Court recognized that the prayer was inclusive and voluntary, it nonetheless held that the practice of saying the prayer was unconstitutional. The Court first determined that prayer is a religious activity, no matter how inclusive the content of a particular prayer might be. In holding the prayer exercise unconstitutional, the Court highlighted the state's role in composing the prayer.

Government-authored prayers, the Court said, were at the heart of many of the European religious conflicts that led dissenting groups to come to this country.

Nor did the right of students to opt out save the prayer exercise from unconstitutionality. The constitutional offense resided not only in coercion, but in the government's sponsorship of the religious activity. Through the prayer, the Court concluded, the public schools have adopted and carried out an official religious practice, and have thus violated the core meaning of the Establishment Clause.

In Abington Township v. Schempp (1963), the Court extended the ruling in Engel to a Pennsylvania statute and Baltimore school board rule that required each public school day to start with a reading from the Bible and recitation of the Lord's Prayer. As in Engel, students were able to opt out of the religious exercise on request of their parents. To resolve the case, the Court adopted a test that has since become the standard analysis under the Establishment Clause. The Court wrote:

"to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion." Applying the test to the challenged public school practices, the Court found that the schools required the exercises for the religious purpose of instilling piety in students. With no sincere secular purpose motivating the exercise, the Court concluded, the practice was unconstitutional.

The Court in Schempp emphasized the limited reach of its decision. Although public schools may not sponsor religious exercises, schools may still include the objective study of the Bible as part of a history class or a survey of comparative religions.

School-directed devotional reading or Bible study, however, violates the Establishment Clause. In addition, the Court drew a sharp distinction between individual religious practices and those required or sponsored by the state. The Free Exercise Clause protects individual liberty of religious practice and belief, the Court reasoned, but that liberty does not give the majority the right to "use the machinery of the State to practice its beliefs."

School officials in a number of jurisdictions reacted to the Court's decisions in Engel and Schempp by enacting complete bars on religious practices in public schools. Beyond just the school day religious exercises, however, these rules excluded a range of voluntary religious practices of students and teachers. In some places, school officials determined that religious organizations could not use public school facilities, even when school was not in session, and even when nonreligious groups were eligible to use the same facilities. In Widmar v. Vincent (1981), the Supreme Court considered and held unconstitutional these exclusionary practices. The case arose from a public university's rule that denied religious student organizations the right to use campus buildings for their meetings, because the meetings involved prayer and worship. The university permitted other, nonreligious, student groups to use school buildings for their meetings, but defended its exclusion of religious groups as a requirement of the Establishment Clause.

The Supreme Court said that the Establishment Clause did not justify the university's decision to exclude religious groups. The university created a "public forum" by opening its rooms for use by student groups, the Court held, and once it has created such a forum, the Free Speech Clause of the First Amendment prohibits the government from discriminating against speakers based on the content of their speech. In this case, the university discriminated against the religious student group based on the subject matter of their meetings – religion. Moreover, the Establishment Clause  provided no defense for the university, the Court held, because the   government is not responsible for the content of any speaker's message in a public forum. Unlike the school prayer cases, therefore, the university would not violate the Establishment

Clause by permitting the students to meet and pray, because the university was not sponsoring or engaging in the religious activity.

In a public forum, the government only provides – and is responsible – for the opportunity to speak, not the speech itself.

And the government has an obligation to provide that opportunity to all speakers on an equal basis.

Related problems arose when officials extended the prohibitions on school prayer to voluntary prayer by students during the school day. The Supreme Court reaffirmed the right of students to engage in voluntary prayer, and even the ability of the state to accommodate voluntary prayer, in its 1984 decision Wallace v.Jaffree. The case involved a challenge to an Alabama statute which provided that, at the beginning of each public school day, "a period of silence not to exceed one minute in duration shall be observed for meditation or voluntary prayer." The Court held this statute unconstitutional, finding that the statute lacked a secular purpose because Alabama already had a statute that mandated a minute of silence for meditation in public schools. The new statute, the Court held, served no other purpose but to encourage students to use the moment of silence for prayer. Although it struck down the challenged statute, the Court's decision accepted the constitutionality of the other moment-of-silence statute, because the earlier statute simply offered students an opportunity for prayer or nonreligious meditation; it neither encouraged nor discouraged students to use the time for prayer.

As in Widmar, the government does not establish a religion when it offers an opportunity for religious activity. The government may not, however, use such opportunities to encourage or endorse religious activity.

Even after Widmar and Wallace, however, some school administrators continued to restrict religious activities on school property during the school day. In a range of decisions by lower federal courts, a general consensus has emerged that strongly protects religious expression by individual or groups of students, so long as the expression is not disruptive. The religious expression of teachers, on the other hand, may be more strictly regulated by school officials, because students might reasonably mistake a teacher's individual expression for officially sponsored religious activity. This general consensus is now embodied in a document entitled "Religious Expression in Public Schools," which is published by the U.S. Department of Education and distributed to school officials across the nation.

In 1992, the Supreme Court reaffirmed the Engel and Schempp decisions in Lee v. Weisman, a case that involved school sponsored prayer at a public school graduation ceremony. The Court focused on two features of the graduation prayer. First, school officials were responsible for deciding that a prayer should be given, selected the clergy who delivered the prayer, and directed the content of the prayer. Second, although students were not legally required to attend the graduation ceremony, they were expected to do so. Taken together, the Court reasoned, these factors meant that the graduation prayer represented the same kind of state-mandated religious exercise as the daily prayers and Bible reading held unconstitutional in Engel and Schempp.

The two principles of Religion Clause law, that government may facilitate but may not promote religious activity, collided in 2000, when the Supreme Court heard Santa Fe Independent School District v. Doe. At issue in the case was a school district's policy of student-led prayer at football games. Under the policy, students voted first whether or not to have prayers at the games, and then, if the majority voted to have the prayers, the students elected a student chaplain to deliver the prayers. Defenders of the policy argued that the significant involvement of students in choosing whether to, and who would, deliver the prayers meant that the practice should be regarded as student religious expression rather than officially sponsored prayer. A majority of the Supreme Court disagreed with that characterization of the policy. The Court found that the policy did not create a public forum for student speech, because the government strictly limited the kind of expression that would be permitted. The school did not open the football game audience to all forms of student expression. Instead, it allowed only religious speech chosen by a majority of the student body.

Given that limitation, the Court concluded, the student prayers at football games were indistinguishable from the graduation prayers held unconstitutional in Lee v. Weisman.

Neither Santa Fe v. Doe nor Lee v. Weisman has closed the door on prayers at public school events. Federal appellate courts have approved several school policies that offer a broad opportunity for student messages, including religious messages, at graduation or other events. Unlike Santa Fe or Lee, these courts have held, the more recent policies make clear that the schools are not responsible for the content of the students' messages. Cases with new wrinkles on these policies appear frequently, however, and remain the most significant source of litigation in the public school setting. Nonetheless, the disputes highlight the continuing importance of the two core principles of Religion Clause law.

Government may, and sometimes must, facilitate the religious activities of individuals and private groups; but government itself must not engage in or promote religious activity.

—-End Excerpt—

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