To understand why this issue should be reconsidered in Constitutional law, we need to look no further than the Establishment Clause itself. It provides that “Congress shall make no law respecting an establishment of religion.”  When assessing Establishment Clause cases, one must not neglect to understand the history of the clause and the intent behind its incorporation into the Constitution. When early colonists settled on the shores of what is now the United States, their original mission was religious freedom and to escape the persecution imposed by the leadership of the Church of England. The Church of England was in fact the state’s sponsored religion and drew opposition from the various Protestant secs, Catholics and Jews that remained in England. It is, therefore, no surprise that an essential element of the First Amendment is the Establishment Clause and protection from state sponsored religion. This issue was clearly a priority for the framers as evidenced in its incorporation into the First Amendment.

It should be noted, however, that the modern interpretation of the Establishment Clause is not within the framework of the Constitution, nor arguably within the intent of the framers especially in regards to school prayer. Cases will be highlighted that focus on the evolution of the Supreme Court and U.S. Circuit court developments on the issue. We will break down major case law that has addressed this issue throughout the twentieth and twenty-first century and why this Supreme Court should carefully consider correcting the mistakes made by the past courts when adjudicating these claims.

Illinois ex rel. McCollum v. Board of Education (1948) and Everson v. Board of Education (1947)

First, its substantive origins trace back to the 1948 case Illinois ex rel. McCollum v. Board of Education[1]where the Supreme Court held that a school arrangement where students were allowed to attend religious instruction courses during the school day that were taught by private teachers and approved by parents was deemed unconstitutional. This, despite the fact that the private teachers were furnished by a religious council representing various faith traditions and subject to the oversight of the superintendent of schools. The students that did not want to participate were not compelled to participate and continued a full secular course load.

A central issue highlighted by the court was the use of school buildings supported by taxpayer funds to be a venue for public school students to receive religious education. The court considered this a violation of the Establishment Clause and cited to its prior decision Everson v. Board of Education[2].  Most specifically language from that decision provided:

Neither a state nor the Federal Government can set up a church. Neither can pass  laws which aid one  religion, aid all religions, or prefer one religion over another. Neither can force or influence a person to go to or to remain away from a church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance of non-attendance. No tax in any amount, large or small, can be levied to support any religious     activities or institutions, whatever they may be called, or whatever form they may adopt to teach or  practice religion.

There are several flaws with the reasoning utilized in Everson. First and foremost, the most important issue is in regards to a government sponsored church. As previously discussed, this goes to the heart of the First Amendment and the Establishment Clause. Recognizing a space for religion in the public education system is not the government taking an approach to establish a church such as the Church of England. Rather, it is providing an open space for religious dialogue and recognition of diverse faiths in society. It expands the understanding of students and increases their intellect while providing them with the opportunity to express their beliefs if they so choose. Second, in terms of taxing, the support of the school venue where the optional religious courses were held should have been viewed in a wholistic sense. The tax was not going towards the programming of a specific religious institution, it was simply supporting the venue where the exercise of the program was occurring in conjunction with other educational opportunities. The language used by the Court to set this precedent with an expansive review of the Establishment Clause was in clear error.

Engel v. Vitale (1962)

The next major case development regarding religion in a state educational context dealt specifically with school prayer in Engel v. Vitale[3]. In Engel, New York adopted a program of daily classroom prayers in public schools; the prayer in question was brief, denominationally neutral and its observance on the part of the students was voluntary. The Supreme Court held that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.

In reaching its holding, the Supreme Court stated that invoking the Establishment Clause does not depend on a showing of direct governmental compulsion and can be violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. Furthermore, the majority opinion repeatedly stated that when government support is behind a particular religious belief, there is indirect coercive pressure upon religious minorities to conform.

This case was the major development upon which much of the religious, education and government intertwined cases have since flowed from, however, throughout the opinion it neglects to properly interpret the original intent of the Establishment Clause.

To begin, it acknowledges that those who would eventually settle the American colonies fled England to obtain freedom from England’s established governmentally ordained and supported religion. This is a persuasive historical account to help us to understand how to interpret the Establishment Clause.

The Court, however, in its final points of the decision states, “The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say. . .”[4]

The Court over assessed the role of the First Amendment, most specifically, the Establishment Clause with this conclusion. A public school should be free to recognize the role of non-denominational prayer during the school day as a Constitutionally permitted practice that would serve as an asset to the moral compass of all students regardless of faith tradition. As an institution that enhances the growth of young people, this practice is not outside its proper role. Spiritual growth and academic growth can co-exist in a healthy manner as long as a specific tradition is not prioritized over another in a non-denominational, general format. If the government is not taking a position (i.e. The Church of England to the detriment of the other religious groups) there is no control or influence over prayer, it is simply providing an opportunity for prayer.

As discussed previously, the court also added that,

The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonsobserving individuals or not. . . [w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. It warns, the belief behind the Establishment Clause was, that a union of government and religion tends to destroy government and to degrade religion.[5]

This aspect of the Court’s decision seems to acknowledge the previously cited weak points to its Establishment Clause jurisprudence because it moves off the concept that the government needs to be behind an official religion and therefore requires direct government compulsion to be in violation of the Establishment Clause. Rather, it suggests an “indirect coercive pressure” meets the threshold because it creates an understanding of a prevailing officially approved religion.

The Court, however, fails to effectively persuade with this direction- there is no previously approved religion if non-denominational prayers are recited or if there are alternating religious leaders of various faith brought in to lead it. A priest leading prayer is not suggesting that Catholicism is the officially approved religion any more than a rabbi or imam leading prayer is suggestive that Judaism or Islam is the approved religion. If even for example, a Hindu or Buddhist leader was retained this also would not be deemed an endorsement based on the heterogeneous invitations to various faith leaders and non-denominational format of the prayer recitation.

Finally, a strong counter-point are the atheist entities that bring much of these suits. As discussed earlier, however, it should be noted that the Establishment Clause was created with the understanding that a form of religion should not be officially endorsed by the government such as the Church of England and state-run churches. Its purpose, however, was not to diminish religious recognition in its entirety from the lens of government, the focus was more on a specific church and its influence over the governing process of the nation. A student identifying as an atheist at any of the religious prayer reflections by any of the religious leaders does not have to accept the prayerful meditation, but should also not be penalized if failing to participate. For the Court to assume, however, that as a result of prayer being spoken, there is an indirect pressure enforced on the atheist student, it is undertaking a very subjective analysis on a clause of the Constitution that is very objective in nature. One cannot assume how individual atheists would react to the consideration of prayer.  It should also be noted that an additional issue to ponder is that the Constitution is silent on areligious claimants. A carve out for areligious claimants as it relates to the Establishment Clause could arguably require an amendment.

Santa Fe Independent School District v. Doe (2000)

In Santa Fe Independent School District v. Doe[6], the Supreme Court, in a 6-3 decision held that student led prayers at football games was unconstitutional because it was in violation of the Establishment Clause. The school district maintained a policy that non-denominational prayer consisting of an invocation and/or benediction could be presented by a senior student or student selected by members of the graduating class. The prayer was to be chosen by the students. The students were to vote on whether to have the prayer and if passed, the student representatives to deliver the prayer.

Justice Stevens in his majority opinion, relied on the Court’s precedent set in Lee v. Weisman[7] where the Court held that a rabbi could not recite a non-denominational prayer prepared by school officials at a graduation ceremony. In that opinion, Justice Kennedy stated that it was not the place of the government to prepare a prayer for a graduation ceremony even if it was non-denominational. He stated this could be deemed as coercion, in the sense that the Constitution “guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a [state] religion or religious faith, or tends to do so.”

In Santa Fe, Justice Stevens stated that the majoritarian nature of the student body’s vote on prayer infringes on the voice of the students who voted in the minority to reject the prayer. This could be viewed as a form of coercion. It further alienates those in the audience that viewed themselves as nonadherents and sends a message that they are outsiders and disfavored within the political community.

He also highlighted that the district provided an opportunity for the potential prayer and “solemnization” of the event to go forward by allowing for the vote. In addition, he stated that the event in which the prayer could be recited was organized by a school sponsored function, thus the state has provided a venue for prayer to be recited. The public address system was also responsible for transmitting the message and when considering these points, he found the prayer in violation of the Establishment Clause.

These points, however, can be challenged. For example, in Chief Justice Rehnquist’s dissenting opinion[8] he wrote that this suit was brought before the student program was applied in practice. There was no guarantee that the speech by the student would be in violation of the Establishment Clause. He also noted that the concept of a majoritarian student election to (1) decide on if a speech will occur and (2) who the speaker will be on its face does not violate the Establishment Clause. The student campaigns are free to go in a direction they seem fit and the student body will react accordingly. Invalidating this process because of a “potential” violation is extending too far. The Court should be reserving judgment on the speech itself to assess if there was an undue Establishment violation. In addition, the Chief Justice was not persuaded by the majority’s opinion that the solemnization would in fact lead to the unconstitutional Establishment of coercive prayer. Solemnization and prayerful reflections can take many forms including the National Anthem before games. Finally, the Chief Justice argued that this was not a potential government endorsed speech because of its content coming from a private actor, thus is should not be subject to the same restrictions.

Overall, I believe Chief Justice Rehnquist made strong arguments that challenged the majority’s interpretation of an expansive view of the Establishment Clause in this context and considerations regarding Constitutionally permissive speech. I would have considered going further, however, and made clear to the majority that there should not be a focus on minority and suppressed views from the audience in attendance if there is text filled with prayerful references that are non-denominational. If there is to be any constraining, it should be on suits brought against an objectively non-denominational speech. While a government entity has no business coercing the masses to be specifically Catholics, Protestants, Jews, Muslims and other religious groups- it should not be restricted in its solemn reflection on a higher power and respectful thoughts accounting for these beliefs. The atheist entities that would conceivably be minority forces in this context may appreciate a moment of silent or other forms of reflection. It should be clear, however, that the goal was not to coerce them into belief, but as members of a school district that had voted for a permissive solemnization and reflective prayer, they are subject to the local ordinances. If they seek to reform the policy, they should look to advocate for it democratically. They are not being denied participation rights in their political community.

Freedom from Religion v. Chino Valley (Ninth Circuit) (2018)

Finally, a modern perspective assessing the direction of Establishment Clause jurisprudence in schools is the case, Freedom from Religion Foundation Inc. v. Chino Valley[9], a Ninth Circuit case in which the court ruled that religious invocations to start open portions of Board meetings were not within the legislative-prayer tradition that allows certain types of prayers to open legislative sessions. A persuasive factor the court considered was that school children attended the session and were more susceptible to religious influence compared to matured adults.

The Ninth Circuit relied on the Lemon Test from Lemon v. Kurtzman[10] to reach its conclusion. The three-pronged test finds a governmental action can violate the Establishment Clause unless it (1) has a secular legislative purpose; (2) does not have the primary effect of advancing or inhibiting religion and (3) does not foster excessive entanglement between government and religion.

The court found that the prayer sessions lacked a secular legislative purpose, thus failing at the first prong of Lemon. The court stated that the prayers commonly took place “before the groups of schoolchildren whose attendance is not truly voluntary and one whose relationship to school district officials including the Board, is not one of full parity.” The court distinguished with the Supreme Court precedent in Township of Greece[11] because there, the audience was mature adults with the freedom to leave the session and it was not acting as an extension of the school system’s public education experience. Here, the Board dealt with specific issues in education and the court found the risk was too great to students in attendance in that their belief systems would be unjustly influenced at such an age with pressures of complying with the Board’s potential religious educational mission.

The court also provided that it does not meet the complete religious diversity of the Chino Valley area with its failure to invite religious leaders outside of the mainstream and also the failure to consider those without religious belief to assist with the reflection.

Finally, the Ninth Circuit stated that an excessive government entanglement with religion existed with the prayer recited. The court found that there are many ways other than prayer to acknowledge religious diversity.  An example highlighted to solemnize a Board meeting included readings from those of various faiths and non-religious.

The points presented, however, are unpersuasive because the Lemon Test itself is flawed. It provides a framework that seeks to deemphasize religion in public life, in a manner not consistent with the original meaning of the Constitution. Strict separation is easily debated as an original intention of the founding generation.

As discussed earlier, traditionally students were provided with some form of biblical influence in their schoolwork and prayer existed in various legislative meeting functions. Furthermore, the effect of the primary advancement or inhibiting religion is also taken out of context when reviewing the history of the Establishment Clause. We can reflect on our prior discussion of the history of the Establishment Clause and its original meaning from the nation’s founding to suggest that religion does have a place in public life as long as the state is not specifically coercing one religion and having this unduly intertwined with government functions. We can consider Henry VIII establishing himself as the head of the Church of England and the government authoritarianism that flowed from it to the detriment to the other forms of Christianity and faith traditions passed down through the years.

Finally, the lack of specificity in the language “foster excessive entanglement between government and religions” also poses difficulties. This context is vague- to what extent is “excessive entanglement” and how can this be considered an objective standard? From the perspective of a living constitutionalist and liberal leaning judge, this phrase can serve as a catch-all to encompass many things outside of the original meaning of the Constitution on matters of religion and government. This standard leaves much to be desired and has been abused from the twentieth century to today. It has essentially become a tool to limit the influence of religion in society in an unconstitutional matter. The Supreme Court should consider re-evaluating the Lemon Test and its place in Constitutional law.

I also note that Judge Diarmuid O’Scannlain, senior judge on the Ninth Circuit, recently published an opinion[12] respecting the denial of an en banc hearing on the Ninth Circuit’s decision. In his opinion, however, he expressed deep reservations of the Ninth Circuit’s decision finding an Establishment Clause violation. He cited to several Supreme Court precedents such as Marsh v. Chambers[13] and Township of Greece v. Galloway to support the view legislative prayer is valid with the facts provided in this matter.

Judge O’Scannlain took special effort to highlight the facts that the clergy presenting the prayer were scheduled on a first-come, first-serve basis and were forbidden to come to consecutive meetings or more than three per year. General prayer was encouraged for the invocation and the district made clear that the prayer is not to be used for conversion goals or demeaning other faiths.  These go to the very heart of the Establishment Clause’s purpose of forbidding compulsion on the basis of faith from a state actor. The restrictions placed on the clergy and prayer invocations avoid conflicting with the Establishment Clause.

Judge O’Scannlain later cited case law discussing that the framers did not view legislative prayer as a violation of the First Amendment as legislative prayers to open Congress have occurred without interruption since the early Congress. He also challenged the original court’s opinion that considered the legislative prayer as an extension of the educational opportunities present in public school. By its very nature, the legislature has a different mission than the school system, its goals are to pass laws and organize governmental functions while the schools are tasked with educating. He also notes that it is faulty to consider that the mere voluntary presence of students at a legislative session would change the nature of the proceeding and re-categorize it as an educational mission.

In sum, on two layers we can consider the original decision of the panel in error. First, this should not have been categorized as a prayer in school case because it was a legislative meeting, not a school environment with the sole purpose of education. It would have to be assessed with guidance from Township of Greece which should be the controlling law and find no Establishment Clause violation. Second, even if we concede that this was an educational meet and thereby an extension of the public-school system, it would still not be in violation of the Establishment Clause. Various clergy could be scheduled that represented different faiths on first come, first serve basis and could at most be granted 3 invocations per year. Furthermore, the clergy were specifically told by the legislative assembly that it cannot be used as a platform for conversion and demeaning other than faiths and beliefs.

Conclusion

Overall, with the new composition of the Supreme Court, it should take the opportunity to reassess religion and law jurisprudence, most notably the Establishment Clause as it relates to prayer in schools. The Supreme Court deeply erred in the twentieth century with its expansion of the Establishment Clause to severely restrict the influence of religion in public forums.

[1] 333 U.S. 203 (1948).

[2] 330 U.S. 1. (1947). Everson considered taxpayer support to students in a school district that reimbursed public and private school students who took public transportation to school. A major takeaway from this case was the incorporation of the First Amendment Establishment Clause against the states.

[3] 370 U.S. 421 (1962).

[4] Id. at 430.

[5] Id. at 431-32.

[6] 530 U.S. 290 (2000).

[7] 505 U.S. 577 (1992).

[8] 530 U.S. 290 (2000) (Rehnquist, J. dissenting).

[9] Freedom from Religion v. Chino Valley et al; No. 16-55425 (9th Cir. 2018).

[10]403 U.S. 602 (1971).

[11] 572 U.S. ___ (2014) In Township of Greece, the Supreme Court held in a 5-4 decision that the legislative prayer to open a session, should not have been considered a form of coercion. The majority emphasized that there was no evidence of demeaning other faiths and forcing conversion.

[12] Freedom from Religion v. Chino Valley et al; No. 16-55425 (opinion respecting denial of en banc) (9th Cir. 2018).

[13] 463 U.S. 783 In Marsh, the issue assessed was whether paying a legislature chaplain using taxpayer dollars violated the Establishment Clause. The Supreme Court found, in a 6-3 decision, that this practice was permissive in light of the historical tradition of legislative prayers since the First Continental Congress and First Congress.