Ch. 4: Religious Expression in Public Schools

Chris OConnor

Chapter 4: Religious Expression in Public Schools

This thread is for the discussion of Chapter 4: Religious Expression in Public Schools. You can use this thread or create you own threads. The choice is yours. ::80

irishrosem

In this section, Haiman introduces Lee v. Weisman a case that addressed prayer at public school graduation. He specifically notes Justice Souter’s concurring Opinion in Lee v. Weisman. I urge you to read this; it is an amazing piece addressing the nonpreferentialist argument.

Souter starts by demonstrating the Court’s long-standing precedent requiring government neutrality on religion citing, among other cases, Abington v. Schempp (1968 ):

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“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion”; the establishment clause “applies to each of us, be he Jew or Agnostic, Christian or Atheist, Buddhist or Freethinker."

Souter then directly addresses the nonprefrentialist argument that the Framers did not require neutrality between religion and irreligion, outlining the significance of the changes in the phrasing of the establishment clause:

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…what we do know is that the House rejected the Select Committee’s version, which arguably ensured only that ‘no religion’ enjoyed an official preference over others, and deliberately chose instead a prohibition extending to laws establishing ‘religion’ in general.

The sequence of the Senate’s treatment of this House proposal, and the House’s response to the Senate, confirm that the Framers meant the Establishment Clause’s prohibition to encompass nonpreferential aid to religion.

Souter then addresses the setting that informed the Framers’ decisions:

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Of particular note, the Farmers were vividly familiar with efforts in the colonies and, later, the States to impose general, nondenominational assessments and other incidents of ostensibly ecumenical establishments.

Though Souter perceives these discussions as sufficient to deny a nonpreferentialist reading of the Establishment Clause he goes on to explain the inherent necessity that “nonpreferentialism requires some distinction between ‘sectarian’ religious practices and those that would be, by some measure, ecumenical enough to pass Establishment Clause muster.” Souter believes these necessary distinctions would fall wholly outside the purview of the courts:

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Simply by requiring the enquiry, nonpreferentialists invite the courts to engage in comparative theology. I can hardly imagine a subject less amenable to the competence of the federal judiciary, or more deliberately to be avoided where possible.

Souter goes on to address the specific “comparative theology” that would need to be explored in the instant case concluding:

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Thus, a nonpreferentialist who would condemn subjecting public school graduates to, say, the Anglican liturgy would still need to explain why the government’s preference for Theistic over non Theistic religion is constitutional.

Kennedy’s majority Opinion relied on an implied coercion of the child to attend graduation, claiming that this participation, even if she remained silent, in prayer amounted to coercion. Souter, however, in his Opinion states that coercion is not necessary to violate establishment, citing concurring precedent. He also demonstrates that a coercion test would essentially nullify the establishment clause as coercion is fully addressed in the free expression clause.

Souter then returns to history to address the Petitioners claims that because our first Presidents had included religion in inaugural and Thanksgiving Day addresses, the Framers could not have required strict neutrality. He briefly explains both Jefferson’s and Madison’s positions before stating, essentially, that the Framers were capable of mistakes. He cites the Alien and Sedition Acts as one such mistake, concluding:

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If the early Congress’s political actions were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.

Souter also makes it clear that strict neutrality is not hostile to religion as non-preferentialists tend to argue, demonstrating where and how the state can accommodate free religious expression without violating the establishment clause. Addressing the instant case, Souter notes that preventing prayer at graduation does not “in any realistic sense, ‘burden’ their [Petitioners’] spiritual calling,” as they are free to pray at any point before or after the graduation. He poignantly states:

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Because they accordingly have no need for the machinery of the State to affirm their beliefs, the government’s sponsorship of prayer at graduation ceremony is most reasonably understood as an official endorsement of religion and, in this instance, of Theistic religion.

Souter succinctly concludes:

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When public school officials, armed with the State’s authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However “ceremonial” their messages may be, they are flatly unconstitutional.

Seriously, I could type this whole thing out in order to get all the great arguments on here. Just read it, and carry it in your pocket as a reference whenever arguing for strict neutrality.

George Ricker

I especially love Souter's conclusion in Lee v Weisman: When public school officials, armed with the State's authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However "ceremonial" their messages may be, they are flatly unconstitutional.

In fact, with a few substitutions, it pretty well conveys what I think should be the position of the Court on all of these cases. Change "public school officials" to "government officials" and "their students" to "the citizenry" and it pretty well states what is wrong with all these "ceremonial" or "traditional" practices.

What a shame the courts seem unable to consistently apply that standard.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

irishrosem

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However "ceremonial" their messages may be, they are flatly unconstitutional.

I voted today in my city's primary. There on the table, prominently displayed in front of the book where voters sign their names, was the King James Bible. Is this just a ceremonial message?

If so, then why did it, even a little bit, affect my voting experience? And then I thought, even if I weren't atheist, I still would have been excluded by the display of the King James Bible.

Garicker: What a shame the courts seem unable to consistently apply that standard.

Garicker, I don't know how we explain this and I certainly don't know how to address it. I must admit, this in depth review of separation jurisprudence, or lack thereof, has left me a little depressed over the last few weeks.

George Ricker

Rose: I must admit, this in depth review of separation jurisprudence, or lack thereof, has left me a little depressed over the last few weeks.

Even more depressing is what we may expect in this area from the current crop of justices.

However, the real problem is the seeming indifference of so many Americans to the problem. Far too many of our citizens take the attitude that there's nothing wrong with the state wrapping itself in the trappings of the religion of the majority.

It seems so obviously clear that the wall of separation between government and religions protects the rights of conscience of all Americans that it is incredible to me the issue is controversial.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

Dissident Heart

Souter's conclusion in Lee v Weisman: When public school officials, armed with the State's authority, convey an endorsement of religion to their students, they strike near the core of the Establishment Clause. However "ceremonial" their messages may be, they are flatly unconstitutional.

I am interested in what happens if we replace the word religion with ideology...and the issue becomes, say, public school officials, armed with the State's authority, convey an endorsement of capitalism.

I suppose a similar ideological endorsement is taking place when hyper-individualized high stakes test taking is implemented to assess student intelligence and teacher success.

Another ideological endorsement will be found in the cafeteria with types of food offered, if it is free or sold, and what degree of corporate sponsorship forces its namebrand onto the schoolground.

Another ideological endorsement will be found in the athletic department with types of games reinforcing defensive tribal identities, militaristic attitudes, violent practices, and, again, corporate sponsorship imposing namebrand recognition.

irishrosem

Garicker: Even more depressing is what we may expect in this area from the current crop of justices.

I know, this is still really up in the air.

Garicker: It seems so obviously clear that the wall of separation between government and religions protects the rights of conscience of all Americans that it is incredible to me the issue is controversial.

I agree that there should be no question that the Constitution prohibits government endorsement of religion, even “ceremonial,” long-standing endorsement. But what bothers me more is that these instances of endorsement are not controversial enough. As you stated, people seem ready and willing to accept the state’s endorsement of the majority’s religion.

D.H.: I am interested in what happens if we replace the word religion with ideology...

It would have no constitutional significance and is irrelevant to the discussion at hand. D.H., I look forward to your contributions on the free expression and establishment clauses in the First Amendment, but they have nothing to do with capitalism, hyper-individualism, industrial food products, or school sports. Please don’t unnecessarily muddy these waters. This might be an interesting discussion, but not appropriate within the context of the First Amendment.

Dissident Heart

irishrose: they (free expression and establishment clauses in the First Amendment) have nothing to do with capitalism, hyper-individualism, industrial food products, or school sports.

I think they do, especially when these are enforced with State Sanction and School Authority. I think it is a muddy issue, especially since the historical and contemporary threads of ideology and religion are so intimately intertwined. Ideas are enforced explicitly and implicitly althruout the Public School process: beliefs are endorsed, world views provided, enemies named and targeted, and reasons for living and purposes for being alive are taught, implied, exemplified, awarded, trained and punished by full force of State and School authority.

It is much easier to reduce free expression and establishment issues in Public Schools to prayer or Bibles or explicit traditional religious ceremony and language; it becomes far more complicated and muddy when we confront the enforcement of world views and belief systems that lack traditional dress or obvious theologies.

Reducing the establishment issue to guarding against explicit theologies and religious practices neglects the more pernicious forms of negligence and outright sacrifice of young minds and bodies that goes un-noticed because it is free of traditional theological sanction...but still just as rooted in faith, fantasy, and fear of authority.

irishrosem

D.H.: It is much easier to reduce free expression and establishment issues in Public Schools to prayer or Bibles or explicit traditional religious ceremony and language; it becomes far more complicated and muddy when we confront the enforcement of world views and belief systems that lack traditional dress or obvious theologies.

That is because free religious expression and the establishment clause in the First Amendment speaks directly to religion and not to ideology.

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

Seriously, D.H., I am not saying this an unimportant discussion, it is just inappropriate for this thread, and probably this topic. After reading this book, or even just the posts thus far, this is the most relevant issue you have found to discuss? I don’t want to discourage you from participating; in fact, I am incredibly curious where you fall in these discussions. But, I think you are trying to steer the conversation from what this topic is actually about, to what you would like it to be about. Please keep this discussion as relevant to the First Amendment free religious expression and establishment clauses as possible. Start a thread elsewhere if you would like to discuss social ideology in schoolhouses.

George Ricker

Yes, the book under discussion is, after all, Religious Expression and the American Constitution. D.H., note the first word in the title. While a discussion of the imposition of ideologies, etc., in the classroom may be appropriate in some other thread, it has no value here. I realize you are always eager to kick the conversational ball away from any hint of negatives about religion, but you really ought to try to be less obvious about it.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

Dissident Heart

irishrose: That is because free religious expression and the establishment clause in the First Amendment speaks directly to religion and not to ideology.

I think there are religious elements to ideology and ideological elements to religion...thus the muddiness. And I don't think the connection between the two is irrelevant for this discussion. I'm not sure if the Founders utililized the word ideology, or what they used in its stead. I'm fairly certain they didn't utilize the terms world view or belief system either. My hunch is that they would recognize the role of ideological control in much the same category of religious indoctrination...thus the pertinence to the discussion at hand.

The reasons for non-establishment of Religion in the First Ammendment seem the same for non-establishment of Ideology. Actually, it seems a natural and reasonable and logical progression. I think this reasoning makes sense in the context of Public Schools, and thus, this thread.

irishrose: I think you are trying to steer the conversation from what this topic is actually about, to what you would like it to be about.

I think social ideology and religious belief are very difficult, if not impossible to clearly delineate. I think the fundamental assumptions and foundational notions of social ideologies rest upon ideas and faiths that are simililar, if not the same as religious beliefs....they are a common family.

I think the protections in the First Ammendment against establishing a Religion reasonably and of necessity must apply to social ideology as well. Therefore I think it pertinent and relevant and not a misdirection of discussion.

Why the Constitution's architects built safeguards against establishing Religion, is the same why that applies to establishing social ideologies.

George Ricker

I would hope we can distinguish between programs and discussions about religion and programs and discussions that proselytize on behalf of religion. The first have a legitimate education objective. The latter do not belong in public schools.

It may be the line is just too fine to walk. If the choice is between allowing groups to proselytize in public schools and keeping them out altogether, then I would prefer a total ban. I see nothing in the Constitution that suggests it should be OK to use the public schools as a recruiting ground for any religious organization.

George

"Godlessness is not about denying the existence of nonsensical beings. It is the starting point for living life without them."

Godless in America by George A. Ricker

JulianTheApostate

Part of me is still amazed that the Supreme Court didn't strike down daily prayer reading in the schools until 1962. I have a similar reaction to the fact that the law actively discriminated against Blacks until a few decades ago. Many freedoms and liberties, which I view as an intrinsic part of what America is all about, didn't exist for the first 80% of the nation's history.

While I was familiar with that issue, I hadn't heard about the Santa Fe Independent School District v Doe case, which ruled 6-3 against student-led prayers at football games. In 2000, three supreme court justices viewed such prayer as constitutional! ::70

The After School Meetings section described a Supreme Court ruling regarding schools:

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...once it had opened its forum for general use by all recognized student groups it could not engage even in content-based discrimination without demonstrating a "compelling interest" in doing so.

What's the Constitutional justification for that opinion? I understand limitations on what the government can do, but why is the government obligated to provide school resources in certain situations?

irishrosem

The government is not required to provide school resources in any situation. But once they open their doors up for use, schools can't discriminate between groups because that would violate constitutional equal protection and opportunity. The Justices created the separation between subject discrimination and viewpoint disrimination. Schools are allowed to discriminate according to subject, but not according to viewpoint. I think this leaves a lot of gray area and the Milford case demonstrates this. If a school essentially preaches and proselytizes, but they also discuss morality or moral issues, is this a group about proselytizing or is it a group that educates students on morality? The Justices ruled that the discrimination was viewpoint, and not subject, based.


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