I. The First Amendment
• An Introduction
• The Establishment Clause
• The Free Exercise Clause
II. The History of Prayer in Public Schools
III. A Joint Statement of Current Law
• Religion in Public Schools
• Student Prayers
• Graduation Prayer and Baccalaureates
• Teaching About Religion
• Student Assignments and Religion
• Distribution of Religious Literature
• “See You at the Pole”
• Religious Persuasion v. Religious Harassment
• The Equal Access Act
• Religious Holidays
• Excusal From Religiously Objectionable Lessons
• Teaching Values
• Student Garb
• Released Time
• Appendix
IV. The Issue
• Pro School Prayer Position
• Anti School Prayer Position
The First Amendment
The opening two clauses of the First Amendment deal precisely with the issue of what the government can and cannot do with respect to religion. The Establishment Clause, which reads:
Congress shall make no law respecting an establishment of religion…
guarantees the separation of religion from government, and the Free Exercise Clause:
or prohibiting the free exercise thereof;
prohibits the government from interfering with individuals’ rights to worship as they choose. Together these principles protect our freedom to practice any religion or no religion at all.
Religious freedom is one of the most important traditions and constitutional rights we have. This right, however, has been contested and clarified in our courts which to this day continue to define where to draw the line that separates church and state. The body of law on the church/state relationship has been evolving since the Bill of Rights was ratified in 1791. Yet it was not until the 1940s that the Supreme Court began interpreting whether a particular policy or law violated the First Amendment with respect to religion.
The Establishment Clause
When the First Amendment was adopted, most of the original thirteen colonies still had official “established” churches. In much of New England, the Congregational Church was established, and throughout the South, the Anglican. With the power of the government behind them, these denominations often persecuted the members of various minority religions. Baptists, Quakers, Jews and others were denied the right to hold public office and were required to pay taxes to support the established church.
By the time the Constitution was framed, many of its authors had come to believe strongly in “disestablishment.” For example, Thomas Jefferson wrote of the need for “a wall of separation between church and state,” and in 1785 James Madison wrote in his Memorial and Remonstrance that “religion is not helped by establishment, but is hurt by it.” In 1791, when the Bill of Rights was adopted, it reflected this view.
More than a century and a half later, in 1971, the Supreme Court decision in Lemon v. Kurtzman established a three-part test for determining whether a law or government policy has breached the wall between church and state. The Lemon test, still used by the courts today, asks: (1) whether the government’s action has a religious purpose; (2) whether the primary effect of the government’s action is to advance or endorse religion; and (3) whether the government’s action fosters excessive government “entanglement” with religion. If the answer to any of these questions is “yes,” then the law or policy violates the Establishment Clause.
The Free Exercise Clause
The roots of the Free Exercise Clause reach back to the country’s early colonial history. Roger Williams, who fled religious persecution in England and, in 1644, founded Rhode Island as a haven for religious minorities, said it was God’s command that “a permission of the most Paganish, Jewish, Turkish, or Antichristian consciences and worships, be granted to all men in all Nations and Countries.”
In spite of this sentiment, intolerance has occasionally threatened religious minorities’ freedom of worship. The Supreme Court, therefore, beginning in 1940, handed down a series of decisions that formed a bulwark of protection for religious liberty. In 1940, the Court upheld the right of Jehovah’s Witnesses to proselytize on a street corner (Cantwell v. Connecticut). In 1943, the Supreme Court ruled that Jehovah’s Witness children could not be forced to salute the flag in public schools (West Virginia v. Barnette). In 1963, the Court held that a Seventh Day Adventist could not be denied unemployment insurance because she refused to work on Saturdays (Sherbert v. Verner). And in 1972, the Court overturned the conviction of an Amish parent who refused to send his children to school beyond eighth grade (Wisconsin v. Yoder).
Not all religious practice is protected, however, even though the freedom to believe is absolute. To determine whether a particular religious ritual is covered by the Free Exercise Clause, the Supreme Court developed a test: A person or group must show (1) that the ritual is motivated by “sincere religious belief,” and (2) that the state has imposed a “substantial burden” on the practice. If these two criteria are met, the government must accommodate the religious practice unless the government can show that it has a “compelling interest” in restricting the practice, and that its restriction is the most lenient way possible (the “least restrictive means”) of serving that interest.
The History of Prayer in Public Schools
The controversy over officially sponsored prayer in public schools did not begin in 1962, when the Supreme Court first ruled that such observances violate the Establishment Clause. It began more than one hundred years earlier, in the 1830s, when waves of Italian and Irish Catholic immigrants came to this country and objected to compulsory readings of the Protestant King James Bible and the recitation of Protestant prayers in most public schools. A bitter conflict erupted, including riots, the expulsion of Catholic children from public schools, the burning of convents, and even some deaths.
In the 1950s, as the religious diversity of our society increased, school prayer became a divisive issue once again. Now Jewish, Buddhist, Hindu, Muslim and atheist parents objected to Christian practices in the public schools.
Out of this conflict arose Engel v. Vitale, a 1962 case in which the Supreme Court ruled against officially sponsored and organized school prayer. “We think,” wrote Justice Hugo L. Black for the court, “that by using its public school system to encourage recitation of the Regents’ prayer [a nondenominational prayer created by the government], the State of New York has adopted a practice wholly inconsistent with the Establishment Clause.” The following year, in School District of Abington Township v. Schempp, the Court held that Bible readings in public schools also violate the First Amendment.
President John F. Kennedy, the country’s first Catholic President, urged respect for the court’s decision in Engel: “We have in this case a very easy remedy, and that is to pray ourselves. And I would think that it would be a welcome reminder to every American family that we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of our children.”
– reprinted from ACLU Briefing Paper #3, Church and State
A Joint Statement of Current Law Religion in Public Schools
The Constitution permits much private religious activity in and about the public schools. Unfortunately, this aspect of constitutional law is not as well known as it should be. Some say that the Supreme Court has declared the public schools “religion-free zones” or that the law is so murky that school officials cannot know what is legally permissible. The former claim is simply wrong. And as to the latter, while there are some difficult issues, much has been settled. It is also unfortunately true that public school officials, due to their busy schedules, may not be as fully aware of this body of law as they could be. As a result, in some school districts some of these rights are not being observed.
The organizations whose names appear below span the ideological, religious and political spectrum. They nevertheless share a commitment both to the freedom of religious practice and to the separation of church and state such freedom requires. In that spirit, we offer this statement of consensus on current law as an aid to parents, educators and students.
Many of the organizations listed below are actively involved in litigation about religion in the schools. On some of the issues discussed in this summary, some of the organizations have urged the courts to reach positions different than they did. Though there are signatories on both sides which have and will press for different constitutional treatments of some of the topics discussed below, they all agree that the following is an accurate statement of what the law currently is.
Student Prayers
1. Students have the right to pray individually or in groups or to discuss their religious views with their peers so long as they are not disruptive. Because the Establishment Clause does not apply to purely private speech, students enjoy the right to read their Bibles or other scriptures, say grace before meals, pray before tests, and discuss religion with other willing student listeners. In the classroom students have the right to pray quietly except when required to be actively engaged in school activities (e.g., students may not decide to pray just as a teacher calls on them). In informal settings, such as the cafeteria or in the halls, students may pray either audibly or silently, subject to the same rules of order as apply to other speech in these locations. However, the right to engage in voluntary prayer does not include, for example, the right to have a captive audience listen or to compel other students to participate.
Graduation Prayer and Baccalaureates
2. School officials may not mandate or organize prayer at graduation, nor may they organize a religious baccalaureate ceremony. If the school generally rents out its facilities to private groups, it must rent them out on the same terms, and on a first- come first-served basis, to organizers of privately sponsored religious baccalaureate services, provided that the school does not extend preferential treatment to the baccalaureate ceremony and the school disclaims official endorsement of the program.
3. The courts have reached conflicting conclusions under the federal Constitution on student-initiated prayer at graduation. Until the issue is authoritatively resolved, schools should ask their lawyers what rules apply in their area.
4. Teachers and school administrators, when acting in those capacities, are representatives of the state, and, in those capacities, are themselves prohibited from encouraging or soliciting student religious or anti-religious activity. Similarly, when acting in their official capacities, teachers may not engage in religious activities with their students. However, teachers may engage in private religious activity in faculty lounges.
Teaching About Religion
5. Students may be taught about religion, but public schools may not teach religion. As the U.S. Supreme Court has repeatedly said, “it might well be said that one’s education is not complete without a study of comparative religion, or the history of religion and its relationship to the advancement of civilization.” It would be difficult to teach art, music, literature and most social studies without considering religious influences.
The history of religion, comparative religion, the Bible (or other scripture)-as-literature (either as a separate course or within some other existing course), are all permissible public school subjects. It is both permissible and desirable to teach objectively about the role of religion in the history of the United States and other countries. One can teach that the Pilgrims came to this country with a particular religious vision, that Catholics and others have been subject to persecution or that many of those participating in the abolitionist, women’s suffrage and civil rights movements had religious motivations.
6. These same rules apply to the recurring controversy surrounding theories of evolution. Schools may teach about explanations of life on earth, including religious ones (such as “creationism”), in comparative religion or social studies classes. In science class, however, they may present only genuinely scientific critiques of, or evidence for, any explanation of life on earth, but not religious critiques (beliefs unverifiable by scientific methodology). Schools may not refuse to teach evolutionary theory in order to avoid giving offense to religion nor may they circumvent these rules by labeling as science an article of religious faith. Public schools must not teach as scientific fact or theory any religious doctrine, including “creationism,” although any genuinely scientific evidence for or against any explanation of life may be taught. Just as they may neither advance nor inhibit any religious doctrine, teachers should not ridicule, for example, a student’s religious explanation for life on earth.
Student Assignments and Religion
7. Students may express their religious beliefs in the form of reports, homework and artwork, and such expressions are constitutionally protected. Teachers may not reject or correct such submissions simply because they include a religious symbol or address religious themes. Likewise, teachers may not require students to modify, include or excise religious views in their assignments, if germane. These assignments should be judged by ordinary academic standards of substance, relevance, appearance and grammar.
8. Somewhat more problematic from a legal point of view are other public expressions of religious views in the classroom. Unfortunately for school officials, there are traps on either side of this issue, and it is possible that litigation will result no matter what course is taken. It is easier to describe the settled cases than to state clear rules of law. Schools must carefully steer between the claims of student speakers who assert a right to express themselves on religious subjects and the asserted rights of student listeners to be free of unwelcome religious persuasion in a public school classroom.
a. Religious or anti-religious remarks made in the ordinary course of classroom discussion or student presentations are permissible and constitute a protected right. If in a sex education class a student remarks that abortion should be illegal because God has prohibited it, a teacher should not silence the remark, ridicule it, rule it out of bounds or endorse it, any more than a teacher may silence a student’s religiously-based comment in favor of choice.
b. If a class assignment calls for an oral presentation on a subject of the student’s choosing, and, for example, the student responds by conducting a religious service, the school has the right – as well as the duty – to prevent itself from being used as a church. Other students are not voluntarily in attendance and cannot be forced to become an unwilling congregation.
c. Teachers may rule out-of-order religious remarks that are irrelevant to the subject at hand. In a discussion of Hamlet’s sanity, for example, a student may not interject views on creationism.
Distribution of Religious Literature
9. Students have the right to distribute religious literature to their schoolmates, subject to those reasonable time, place, and manner or other constitutionally-acceptable restrictions imposed on the distribution of all non-school literature. Thus, a school may confine distribution of all literature to a particular table at particular times. It may not single out religious literature for burdensome regulation.
10. Outsiders may not be given access to the classroom to distribute religious or anti-religious literature. No court has yet considered whether, if all other community groups are permitted to distribute literature in common areas of public schools, religious groups must be allowed to do so on equal terms subject to reasonable time, place and manner restrictions.
“See You at the Pole”
11. Student participation in before- or after-school events, such as “see you at the pole,” is permissible. School officials, acting in an official capacity, may neither discourage nor encourage participation in such an event.
Religious Persuasion v. Religious Harassment
12. Students have the right to speak to, and attempt to persuade, their peers about religious topics just as they do with regard to political topics. But school officials should intercede to stop student religious speech if it turns into religious harassment aimed at a student or a small group of students. While it is constitutionally permissible for a student to approach another and issue an invitation to attend church, repeated invitations in the face of a request to stop constitute harassment. Where this line is to be drawn in particular cases will depend on the age of the students and other circumstances.
The Equal Access Act
13. Student religious clubs in secondary schools must be permitted to meet and to have equal access to campus media to announce their meetings, if a school receives federal funds and permits any student non-curricular club to meet during non-instructional time. This is the command of the Equal Access Act. A non-curricular club is any club not related directly to a subject taught or soon-to-be taught in the school. Although schools have the right to ban all non-curriculum clubs, they may not dodge the law’s requirement by the expedient of declaring all clubs curriculum-related. On the other hand, teachers may not actively participate in club activities and “non-school persons” may not control or regularly attend club meetings.
The Act’s constitutionality has been upheld by the Supreme Court, rejecting claims that the Act violates the Establishment Clause. The Act’s requirements are described in more detail in The Equal Access Act and the Public Schools: Questions and Answers on the Equal Access Act*, a pamphlet published by a broad spectrum of religious and civil liberties groups.
Religious Holidays
14. Generally, public schools may teach about religious holidays, and may celebrate the secular aspects of the holiday and objectively teach about their religious aspects. They may not observe the holidays as religious events. Schools should generally excuse students who do not wish to participate in holiday events. Those interested in further details should see Religious Holidays in the Public Schools: Questions and Answers*, a pamphlet published by a broad spectrum of religious and civil liberties groups.
Excusal From Religiously Objectionable Lessons
15. Schools enjoy substantial discretion to excuse individual students from lessons which are objectionable to that student or to his or her parent on the basis of religion. Schools can exercise that authority in ways which would defuse many conflicts over curriculum content. If it is proved that particular lessons substantially burden a student’s free exercise of religion and if the school cannot prove a compelling interest in requiring attendance the school would be legally required to excuse the student.
Teaching Values
16. Schools may teach civic virtues, including honesty, good citizenship, sportsmanship, courage, respect for the rights and freedoms of others, respect for persons and their property, civility, the dual virtues of moral conviction and tolerance and hard work. Subject to whatever rights of excusal exist (see #15 above) under the federal Constitution and state law, schools may teach sexual abstinence and contraception; whether and how schools teach these sensitive subjects is a matter of educational policy. However, these may not be taught as religious tenets. The mere fact that most, if not all, religions also teach these values does not make it unlawful to teach them.
Student Garb
17. Religious messages on T-shirts and the like may not be singled out for suppression. Students may wear religious attire, such as yarmulkes and head scarves, and they may not be forced to wear gym clothes that they regard, on religious grounds, as immodest.
Released Time
18. Schools have the discretion to dismiss students to off-premises religious instruction, provided that schools do not encourage or discourage participation or penalize those who do not attend. Schools may not allow religious instruction by outsiders on premises during the school day.
Appendix
American Civil Liberties Union
American Ethical Union
American Humanist Association
American Jewish Committee
American Jewish Congress
American Muslim Council
Americans for Religious Liberty
Americans United for Separation of Church and State
Anti-Defamation League
Baptist Joint Committee
B’nai B’rith
Christian Legal Society
Christian Science Church
Evangelical Lutheran Church in America,
Lutheran Office for Governmental Affairs
Federation of Reconstructionist Congregations and Havurot
Friends Committee on National Legislation
General Conference of Seventh-day Adventists
Guru Gobind Singh Foundation
Interfaith Alliance
Interfaith Impact for Justice and Peace
National Association of Evangelicals
National Council of Churches
National Council of Jewish Women
National Jewish Community Relations Advisory Council (NJCRAC)
National Ministries, American Baptist Churches, USA
National Sikh Center
North American Council for Muslim Women
People for the American Way
Presbyterian Church (USA)
Reorganized Church of Jesus Christ of Latter Day Saints
Union of American Hebrew Congregations
Unitarian Universalist Association of Congregations
United Church of Christ, Office for Church in Society
Pro School Prayer Position
Since the Engel decision in 1962, religious advocates have been assailing the Supreme Court for “taking God out of the classroom.” In an effort to reverse this trend, conservative religious groups have been fighting for the passage of a school prayer amendment to gain greater leeway for religious activities in schools. Clearly not all school prayer advocates agree as to what types of religious activities are permissible in public schools and why, but the following are some of the most frequently heard arguments.
(1) Our Government is based on Religious Principles
School prayer proponents maintain the United States was established as a Christian nation with religion playing a central role in guiding the nation’s destiny. Supporters of religion in school claim the founding fathers never intended a separation of church and state, evidenced by the fact that the phrase “separation of church and state” is not in the Constitution. Signs of a church/state union can be seen regularly: Congress prays at the opening of every session; federal officials take their oaths upon a Bible; “In God we trust” is stamped on our national currency; and Moses and the Ten Commandments are featured prominently in the Supreme Court building. If religion is accepted in these government institutions, they reason, it should not be stopped at the schoolhouse door.
(2) The Free Exercise Clause Protects School Prayer
Despite decades of Supreme Court rulings, many religious advocates claim the Constitution protects school prayer. According to their interpretation, the First Amendment does not separate God and government, but actually encourages religion. Many supporters believe the Establishment Clause was intended to bar only the establishment of a state religion. They narrowly interpret the Free Exercise Clause as requiring the government to accommodate religious observances in public life. Many advocates believe the restriction on graduation and student-led school prayers violates their First Amendment right to practice religion without government interference.
(3) Banning School Prayer Leads to Moral Decline
Since the banning of organized prayer in public schools, the nation has been in steady moral decline. Divorce rates, teen pregnancy, violent crime, and drug use have all increased. Many school prayer supporters believe there is a direct correlation between the removal of prayer from public schools and the decline of morality. Religious conservatives are convinced that religious influence in the schools is necessary to teach students morals and values.
(4) Majority Should Rule
Public opinion has remained strongly opposed to the court rulings that barred classroom prayer and Bible readings in the 1960s. National polls repeatedly indicate that the majority of Americans favor organized prayer in public schools. School prayer advocates argue that to forbid the majority the right to pray because the minority objects is undemocratic. Supporters are generally committed to majority rule at a local level, and are favorable to laws that would allow local majorities to make decisions about religion in public forums.
Anti School Prayer Position
Over fifty years of Supreme Court jurisprudence has maintained a “wall of separation between Church and State” based on the principles that public schools may not take sides in matters of religion and may not endorse a particular religious perspective or any religion at all. Opponents of a school prayer amendment believe its passage would breach the Church-State wall and diminish religious liberty in this country. Below are some of the most frequently heard arguments against state-sponsored prayer and responses to arguments by school prayer proponents.
(1) State-Sponsored School Prayer is Unconstitutional
Opponents of a school prayer amendment contend that officially sponsored prayer in public schools undermines the religious freedom clauses of the First Amendment. According to their interpretation, the Establishment Clause proscribes the establishment of religion in general – including religious practices. Since prayer is a religious exercise, state-supported prayer amounts to the establishment of a religious practice and is therefore unconstitutional. Additionally, they believe state-sponsored prayer violates the Free Exercise Clause by exposing students to prayer against their will or forcing them to absent themselves to avoid hearing prayers.
(2) Prayer in School is Already Legal
Contrary to the assertions of school prayer advocates, those opposed to organized school prayer maintain that public schools are not hostile to students’ religious expression. The First Amendment guarantees every child the right to pray in school on a voluntary basis. Most religious activity is permitted in public schools, as long as the state plays no role in organizing it, and it does not disrupt the educational mission of the school.
(3) State-Sponsored Prayer Will Lead to Religious Intolerance
Many opponents to a school prayer amendment believe that promoting organized school prayer will endanger religious diversity and breed intolerance. Students of minority religions may feel left out or uncomfortable praying with students of different beliefs. Others may feel pressure to participate or face the disdain of the teachers and peers. Although some school prayer lobbyists have proposed non-denominational prayers, opponents believe it is impossible to compose a prayer that will reflect the religious beliefs of all students. Even non-sectarian prayer infringes upon students who follow no religion.
(4) Moral Decline and School Prayer are Unrelated
Contrary to the assumptions of school prayer supporters, opponents of organized school prayer find no evidence that prayer will improve morality or challenge students to lead ethical lives. Separationists generally attribute the country’s social problems to poverty, inequality, and lack of opportunity – issues which they believe should be addressed by serious analysis and sufficient resources, not by classroom prayers. In response to the presumption that the removal of organized prayers from public schools in the 1960s spurred the country’s moral decline, opponents are quick to point out that school prayer coexisted with the Jim Crow laws of the South, the official discrimination against women in education and employment, and the discrimination against minorities in political, cultural, and social institutions.
