ANALYSIS OF S.J.R. 12 (2009)
By Pamela L. Sumners, Esq. This analysis is by no means exhaustive. It merely highlights the primary defects with the Resolution, which would run afoul of the Constitution’s prohibition on government practices that tend to endorse religion. The constitutional provision at issue is the First Amendments’s Establishment Clause (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .”). Chief among SJR 12’s defects are that it muddles the distinction between ordinary speech and explicitly religious speech that can violate the Establishment Clause of the First Amendment, and it confuses public forums such as a town square with nonpublic forums such as schools. The key defects of SJR 12, including its entire text as well as its proposed ballot language, are: 1. The Resolution is redundant to the extent that individuals, including schoolchildren, already have the constitutional right to pray privately and nondisruptively at any time, in the hallways, at recess, lunch, or silently at their desks whenever they choose. As wags have long observed, there will be prayer in the public schools as long as there are math tests. 2. The Resolution is redundant to the extent that the Constitution already forbids religious tests for office and forbids interference with the free exercise of religion. 3. The Resolution is infirm to the extent it purports to insulate all legislative prayer from scrutiny. Only legislative prayers that serve such secular purposes as “solemnizing public occasions, expressing confidence in the future and encouraging recognition of what is worthy of appreciation in society” are permissible. Permissible prayers are those whose “history and ubiquity” render them mere “acknowledgements of religion” and not “endorsement[s] of particular religious beliefs.” Sectarian legislative prayers (such as those invoking the name of Jesus) are not permissible, because they are government speech. In addition, the Resolution purports to allow organized prayer at all “public meetings,” including perhaps those at which schoolchildren might be representatives to official school boards or other deliberative bodies, which some courts have found unconstitutional because of the impressionability of schoolchildren and the likelihood that they would believe a religious exercise symbolized the state’s subscription to the particular religious message conveyed. 4. The Resolution is constitutionally infirm to the extent that it purports to confer a right to pray “corporately” (in groups or organized) in “public settings” so long as the religious exercise is noncoercive, nondisruptive, and consistent with reasonable time, place and manner restrictions. This is wrong for three reasons, according to decades of settled law: i. Not all public “settings” are public forums. A government-owned space may become a designated or limited public forum through custom and usage—for example, a town park where a central soapbox for the airing of any views short of advocating riot or revolution or spouting nonstop profanity is allowed. In such cases, the state must remain impartial about the messages conveyed and cannot discriminate based on the speaker’s content/viewpoint—in a true public forum, all comers are welcome. In a designated or limited public forum, content that is appropriate to the genre and the venue is allowed. By sharp contrast, a public school is not a public forum in any sense, and this Resolution would encompass public schools as places in which “corporate prayer” occurs. School officials may control the content of messages coming over the public address system, and at assemblies and other school-sponsored gatherings or during instructional time. Indeed, when it comes to prayer or religious devotionals, school officials must control the content or risk an Establishment Clause violation. Students may not pray corporately during instructional time in the classroom, and the school and its agents should not organize or lead prayer for students during instructional time or in the context of school-sponsored programs. It does not matter if student participation is ostensibly voluntary, “student-initiated,” uncoerced, or if the content is nonsectarian. Corporate—or group prayer—in a context that suggests school sponsorship is unconstitutional because it (a) favors religion over irreligion, and (b) suggests state endorsement of religion generally or of a particular religion or even theism (monotheism versus pantheism, for example). The state (including its public schools) is allowed nothing but neutrality as regards religion, and neutrality is not be deemed hostility toward religion. The state cannot give over access to its podium, public-address system, or bully pulpit and then disclaim responsibility for the speaker’s promotion of religious belief—even if the speaker is a student, outside clergy, or employed at large in the community and not be the school system. As the Supreme Court has held: “Neither the fact that the [school-sponsored] prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause.” Schools are not regarded as public forums, and schoolchildren are a captive and impressionable audience. The state is not allowed to use its machinery—including classrooms and school intercoms—to practice the beliefs of the majority or to promote religious belief. ii. The relative degree of coercion involved in public corporate prayer at state-sponsored events or in state-sponsored settings is constitutionally irrelevant. When it comes to public school students, the setting itself is subtly coercive. The Supreme Court has long held that pressure to participate—even to the extent of merely silently standing by while the religious exercise proceeds—is unacceptable, and the ability to excuse oneself does not cure the constitutional infraction. Moreover, “coercion” is not the constitutional test. Rather, the constitutional test is still the three-prong test of Lemon v. Kurtzman, 403 U.S. 602 (1971): (1) the law or regulation at issue must have a secular purpose; (2) the law or regulation’s “primary effect” must not be to either advance or to inhibit religion; and (3) the law or regulation must not “foster an excessive government entanglement with religion.” The test is disjunctive; failure to satisfy any prong renders the statute, practice, or regulation unconstitutional. Increasingly, courts have regarded Lemon’s second prong as synonymous with the “endorsement” test articulated by Justice O’Connor in her concurrence in County of Allegheny v. ACLU Greater Pittsburgh Chapter, 109 S. Ct. 3086 (1989). The endorsement test invalidates government practices that are not neutral toward religion, that send a message to adherents of religion that they are preferred and a corresponding message to nonadherents that they are “outsiders or less than full members of the political community.” iii. Not all religious practices—especially prayer—are mere speech or “acknowledgements” of deity, as the Resolution seems to suggest. Prayer is sui generis. As a supplication to the Almighty, it is more than “ordinary speech.” The Resolution attempts to sweep state-sponsored religious speech and prayer into the innocuous category of mere “acknowledgements” of religion and “ceremonial deism” (akin to the “In God We Trust” motto on our coins). If prayer were only speech, there would be a lot fewer Establishment Clause violations, especially in the public school setting. Yet the law reporters are littered with these cases. It is irrelevant whether prayer is led by clergy or is “student-initiated” at a school-sponsored event. It is unconstitutional all the same. It is not merely the atheist who might object—and have a constitutional right to object—to government-sponsored religious practices. It is also the faithful who may object to the cheapening of their faith or of religious belief generally by displaying sacred objects or uttering sacred words in rote fashion. Just as St. Matthew railed about “the hypocrites who love to be seen of men” while praying on streetcorners rather than in their private prayer closets, so Justice Kennedy observed, in a case involving a courthouse rotunda crèche display, “[S]ome devout adherents of Judaism or Christianity may be as offended by the holiday display as are nonbelievers, if not more so. To place these religious symbols in a common hallway or sidewalk, where they may be ignored or even insulted, must be distasteful to many who cherish their meaning.” FINALLY, it should be stated emphatically in conclusion that holding a plebiscite on constitutional rights is wrong. The Bill of Rights, including all the clauses in its First Amendment, is not a tool of the majority, but a brake on it. As Justice Jackson wrote in rejecting West Virginia’s claim that it could force dissenting Jehovah’s Witness schoolchildren to salute the flag: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. . . If there is one fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.
