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It appears that Alabama legislators want to trigger yet another legal challenge to the ban on prayer in public schools. A new piece of legislation introduced by Rep. Steve Hurst, R-Munford would require teachers to read a prayer every day. However, this bill has an interesting twist: it would have the teachers pick a prayer given in Congress. The point is obvious that if such prayers are permissible in one government setting, it must be permissible in this public setting. That assumption is misplaced and the timing for the bill may be as ill-conceived as its constitutional interpretation. There is a pending case dealing with legislative prayer before the Court and this controversy will only remind justices that the legislative prayer cases may collide with school prayer cases unless it draws a clear line in the constitutional sand. This however is an improvement for Hurst who has moved on to prayer from his prior interest in castration.
Hurst insists that “If Congress can open with a prayer, and the state of Alabama Legislature can, I don’t see why schools can’t.”
Here is the language of HB 318:
SYNOPSIS: This bill provides for a period of time in the public schools for studying the formal procedures of the United States Congress including the verbatim reading of a congressional opening prayer.
A BILL TO BE ENTITLED AN ACT
To prescribe a period of time in the public schools not to exceed 15 minutes for study of the formal procedures followed by the United States Congress, which study shall include a reading verbatim of one of the opening prayers given by the House or Senate Chaplain or a guest member of the clergy at the beginning of a meeting of the United States House of Representatives or Senate.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. At the commencement of the first class of each day in all grades in all public schools, the teacher in charge of the room in which such class is held shall, for a period of time not exceeding 15 minutes, instruct the class in the formal procedures followed by the United States Congress. The study shall include, but not be limited to, a reading verbatim of one of the opening prayers given by the House or Senate Chaplain or a guest member of the clergy at the beginning of a meeting of the House of Representatives or the Senate.Section 2. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.
The bill would raise a longstanding conflict in the jurisprudence of the Supreme Court, which has tried to allow certain prayers like at the start of Congress while drawing the line at schools. The issue is now before the Supreme Court in Town of Greece v. Galloway. Since 1999, the town has started its town council meetings with a prayer led local clergy or local residents. The case will return the Court to the area some thirty years after its ruling in Marsh v. Chambers when it held that the Nebraska legislature could begin its legislative sessions with prayers. This is an area however where the Court has avoided clear lines and left significant confusion in the wake of the decision. But the Court has never settled when legislative prayers go too far and cross the line separating church and state. Since 1999, the town of Greece, New York, which is outside Rochester, has started its town council meetings with a prayer led by members of the local clergy or local residents. In the case of the Town of Greece, all of the prayer leaders happen to have been Christians. It was challenged in 2007 by Jewish resident Susan Galloway and atheist Linda Stephens. One such example of the prayer involved in pastor proclaiming “the freedom that comes from knowing your son, Jesus.” A lower court found the prayer violated the first amendment as an endorsement of Christianity.
That in turn raises the Alabama proposal. The prayers before Congress are given by various demoninations, though teachers would be allowed to choose (which could produce an as applied problem). However, there is a problem with the audience which is viewed as a captive audience in past cases. In 1962, the Court considered a relatively mild prayer approved by the New York Board of Regents: “Almighty God, we acknowledge our dependence on Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” It ruled that such prayers violated the establishment clause. In 1963, it ruled in Abington School District v. Schempp that school-sponsored Bible reading in public schools in the United States is unconstitutional. Both rulings had overwhelming majorities.
Notably, these decisions did not ban prayer from schools since children could still individually pray. Moreover, it does not keep religion out of legitimate educational programs. In Abington School District, Justice Tom Clark stressed “Nothing that we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistent with the First Amendment.” He added:
“The place of religion in our society is an exalted one, achieved through a long tradition of reliance on the home, the church, and the inviolable citadel of the individual heart and mind. We have come to recognize through bitter experience that it is not within the power of government to invade that citadel, whether its purpose or effect be to aid or oppose, to advance or retard. In the relationship between man and religion, the State is firmly committed to a position of neutrality.”
That presents an interesting potential test case that falls between school prayers cases and legislative prayer cases — a distinction long opposed by secularists who want the government out of religious speech and practices. Marsh allows legislative prayers to be sure but not efforts to proselytize or favor or denounce a religion. However, the Court is likely to view this as yet another effort to circumvent its school prayer cases. The odds are heavily against Alabama which would mean that it will spend considerable money on the inevitable challenge to the law — only to likely lose in the federal courts.
Source: Anniston Star
Oro:
“The 1oth Amendment doesn’t do anything — it is a truism: those powers not granted to the federal government nor prohibited to the states are reserved.
Duh.
But reserved unto whom? ”
One thing is crystal clear–the aforementioned powers (in the Bill of Rights) are not granted to the federal government. I would agree that should be a “duh” but remarkably that is precisely what has happened.
” The 14th Amendment? It incorporates and makes applicable some of the protections of the Bill of Rights against state action,including the free expression of religion, Cantwell v. Connecticut, 310 U.S. 296 (1940), and the establishment of religion, Everson v. Board of Education, 330 U.S. 1 (1947).”
Actually the 14th has been used to incorporate virtually all of the Bill of Rights beginning with Gitlow v New York (1925) and most recently with McDonald v Chicago (2010). Eighty five years of gradual usurpation have radically altered our federal system consolidating power to a great degree in the process.
This is in conflict with the original meaning of the 14th and if one wanders away from the meaning of the words at the time of their passing and instead allows for “rational basis” (among the other artificial legal constructs necessitated when the Court made itself the Great Seer) at any given time to be the standard then Pandora’s box has been opened.
Who then becomes the arbiters of what is rational? The elected representatives of the people?
Your position transfers the authority to decide this from elected officials to life tenured judges. Your position takes the governing away from the representatives of the people and gives it to a small cadre of lawyers who are answerable to no one.
Your position takes the government “of the people, by the people” and makes it “of the few, by the few”–the justices themselves.
Your position undermines our republic.
This is not a conservative/liberal issue but a constitutional issue. While this may allow for societal progress at times (from a liberal perspective) it also has made for conservative victories as well. Bush v Gore was a 14th amendment case and McDonald extended the right to individual gun ownership to the states much to the chagrin of many liberals. Another 14th amendment case.
You see it now becomes simply a power issue. What ideological side has five votes? Within the constraints of stare decisis that side wins.
The demons let loose in the mid twentieth century are proving difficult to control.
Why don’t we leave religious instruction to religious institutions and the teaching of reality to the schools? Then the kids can decide what’s true when they reach the age of majority.
I suspect the churches don’t like the odds.
I can remember when the McCarthy/Eisenhower Republicans drove prayer into the public schools back in the 1950s with the ostensibly “voluntary” addition of an insidious little prepositional phrase that rendered an already odious daily loyalty oath even more toxic to the impressionable young mind. Henceforth — and only to whet the insatiable appetites of reactionary American totalitarians — American primary and secondary school students would actually program themselves into knee-jerk obedience to the dictates of princes and priests. So I propose dropping all the pseudo-magical mumbo jumbo and just have the kids recognize up front the purpose of their own indoctrination by reciting:
The Boobie Pledge of Subservience
(from Fernando Po, U.S.A., America’s post-linguistic retreat to Plato’s Cave)
I offer my obedience
I pledge undying love
To any symbol formed to serve
The needs of those above
Who rightly feel that I deserve
The fist inside the glove
I stand and mumble publicly
With fear upon my brow
Lest some mistake my silence for
An insufficient vow
Let all who see and hear me know
How easily I cow
Authority need never fear
I swear I know my place
I pledge to take the gauntlet slapped
Across my beaten face
The Seizure Class knows I’ll accept
Chastisement with good grace
About such things as freedom, I
Have not the slightest clue
By birth and class it’s come to THEM
I know that it’s THEIR due
To hand me down instructions as
To just what I must do
And so I promise faithfully
To play my scripted part
Each day I’ll chant Two Minutes’ Hate
To finish, from the start
Until I love BIG BROTHER from
The bottom of my heart
I swear to do as I am told
I will not think too deep
I’ll huddle in conformity
Just like the other sheep
To take my whipping like a slave
And utter not a peep
I pledge to stand up every day
Within my schoolroom class
And mouth my mantras on demand
Without backtalk or sass
Until the program makes me a
Compliant, docile ass
I swear upon my loyalty
To stuff my head with fat
And place my nation “under” “GAWD!”
Supinely prone and flat
With me then going “down” “beneath”
And “lower” “under” that
I swear to go to Sunday School
Upon the public dime
Each morning in my homeroom class
I’ll mouth my dreary rhyme
And if I leave out words
THEY can Indict me for my crime
I pledge and vow and promise that
I’ll swear from dusk to dawn
And never fail to chant or moan;
To never blink or yawn
And with each cry of “GAWD IZ GRATE!”
My own soul I will pawn
The Papal bulls and fatwas tell
Me all I need to know
Which isn’t much because I see
I’ve nowhere left to go
I swear to never set my sails
Against the winds that blow
The Popes, Imams, and Rabbis tell
Me what and where and how
The master’s overseer tells
Me which row I must plow;
To toady, genuflect, and crawl;
To grovel, scrape and bow
I’ll train to “hurry up and wait”
And do the Bulgar drills
To stand at rapt attention dressed
In military frills
Just point me and I’ll drop the bomb
No matter whom it kills
I pledge and promise on my word
To do the things I ought
To work for lower wages
So my labor comes to naught
I swear to vote Republicrat
To prove I can be bought
The Party keeps us all at war
Which makes us quake with fear
And so we give up all those rights
Our ancestors held dear
Which saves our enemies the need
To take them from us here
But I won’t think of bygone days
The past I’ll just rewrite
I’ll call my history “old news”
To make it pat and trite
Which sleight of mind will help me keep
Its lessons out of sight
With this capitulation I
Agree to sell my pride
Before I even own it or
It grows too big to slide
Into the shabby, craven cave
Wherein I must reside
Michael Murry, “The Misfortune Teller,” Copyright © 2005
“The way the Founders created the republic was for the states/people to decide (10th Amendment)” — Eleazar
The 1oth Amendment doesn’t do anything — it is a truism: those powers not granted to the federal government nor prohibited to the states are reserved.
Duh.
But reserved unto whom? There is some uncertainty in the language of the amendment: “reserved to the states respectively, or to the people.”
Furthermore, to which of the Founders do you refer? Those of the 14th Amendment? It incorporates and makes applicable some of the protections of the Bill of Rights against state action,including the free expression of religion, Cantwell v. Connecticut, 310 U.S. 296 (1940), and the establishment of religion, Everson v. Board of Education, 330 U.S. 1 (1947).
Elaine, LOL. Beat the devil out of them thar heathens.
“Should it be freedom of religion or from religion?”
Both, Francesco: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof[.]”
Brogi:
“I am agnostic, but it would not bother me a bit if people wanted to pray werever they wanted to pray. So long as one is not forced to convert I think each community should be allowed to choose if and when and where to pray.”
The way the Founders created the republic was for the states/people to decide (10th Amendment) The federal government was not to decide. (Congress shall make no law…). This has been changed to a one size fits all policy by the Supreme Court.
If a muslim community wants to pray to Allah (say Detroit) they should be allowed to do so. If a community of agnostics wanted no prayer (say in Vermont) they should be free to not do so.
I do not believe anyone should be coerced to pray to Allah, Jesus, or whomever. However, standing respectfully as the mojority of a community I have chosen to live in prays should be allowed as the Founders intended. A captive public audience (such as school children) would be the same for me. Do not make them pray but they should be taught to respect the community ethic.
There was more freedom in this regard at the beginning than there is now.
A favorite quote of mine is from Wallace v Jaffree (Rehnquist dissent)
“It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from “endorsing” prayer. George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.” History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.”
Francesco, What a sane response compared to the insane responses. In answer to your question, there are people who believe it should be freedom FROM religion. Indeed, one of the most radical advocacy groups is out of The Peoples Republic of Madison. It is called Freedom From Religion. It’s a family operation handed down from Mommy Gaylor to Daughter Gaylor, just like the Graham family patriarchal family. To understand culture and history one must appreciate irony.
I still don’t get it. Should it be freedom of religion or from religion? How far do we get from estabilishing a religion and saying a prayer in school?
I am agnostic, but it would not bothewr me a bit if people wanted to pray werever they wanted to pray. So long as one is not forced to convert I think each community should be allowed to choose if and when and where to pray.
DavidM,
You do understand peer pressure and the need for children to be felt inclusive…. But, then again…. I’m still trying to figure out your agenda….
So far, you don’t like the ACLU standing up for a woman’s right to be medically informed of the exact nature of her pregnancy, is this correct??????
You think that a teacher openly praying in school is ok and that most children would not feel pressured to submit to peer pressure… Is that correct?????
And that it’s not ok for gays to be teachers….. Is that correct?????
I certainly wouldn’t want my children to be subjected to the prayer of the day by any religion. I also strongly doubt parents would be open to all sort of prayer. I suspect the push to get prayer back in school is just a way to open the door, then when the it’s Wiccan prayer day, there would be a huge outcry and it would be withdrawn, and so on and on, until the only prayer left in schools was Christian in nature. I don’t think this inclusiveness of David’s is sincere.
The American Taliban is alive and well.
David,
I commend your personal openness but I do not believe for one second that most parents would tolerate prayers to the wiccan god/desses. This is about praying to the christian god, even a very narrow vision of the christian god which all christians don’t share. It is not about learning from other religions, otherwise the school would offer a course in comparative religions.
As others have pointed out, the cynical calling upon one deity or another by Obama and congress is different in that no one is forced to attend that BS they are laying out. School is mandatory for children and they may not leave upon hearing prayer. That’s the difference.
Obama’s god tells him who to kill and even who to kill, every Tuesday. It’s in Obama’s new book, his daily devotional. That is not a god I care to pray to, nor would I like children forced to pray to the god of a killer who commands killing.
Freedom of religion is sacred and should be treated as such. The idea of forcing this on children or any other captive audience should be an anathma to religious people because it is a violation of conscience. We ought to hold dear that freedom. History drips with blood of the religious who impose their piety on others with the sword. The screams of the tortured and dead cry out to anyone who will listen.
“…On the one hand we are supposed to be a ‘nation under god’….”
No, Isaac, we most certainly are NOT. We NEVER were supposed to be, NEVER were and NEVER will be. We are a nation under our secular US Constitution. Period. The ONLY “obvious solution” is for theists to keep their praying ( silent meditations: a transparent attempt to insert prayers) in their churches, mosques and synagogues and out of the public and political spheres.
David:
“When President Obama called upon his God to bless the United States during his most recent State of the Union speech, did he force you or anybody else to call upon Obama’s God?”
That was as equally inappropriate as beginning Congressional sessions with a prayer, inserting “..under god…” in our Pledge of Allegiance and the appearance of “In god we trust” on our currency. All of these are dead wrong and are quite offensive.
Isaac wrote: ““…On the one hand we are supposed to be a ‘nation under god’….”
rcampbell wrote: “No, Isaac, we most certainly are NOT. We NEVER were supposed to be, NEVER were and NEVER will be. We are a nation under our secular US Constitution. Period.”
You are grossly mistaken in your assertions. The US Constitution is NOT a secular document. It is a document that historically and politically rests firmly upon the Declaration of Independence (DOI). The DOI clearly identifies the reason for the formation of our country being the infringement of rights given to us by our Creator, many rights which are more specifically enumerated in the Bill of Rights of the U.S. Constitution. The DOI makes a strong appeal to reliance upon the Supreme Judge of the world, ending with the sentence: “And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” The Constitution itself dates itself from the year of “Our Lord,” and it makes specific accommodation for the Christian religion by the exception clause of the Christian holy day in Article I.
Following the establishment of both the Declaration of Independence and the U.S. Constitution, the continuance of our foundation as a nation under God became reflected in our coins having “In God We Trust” imprinted upon them, and many of our government buildings containing inscriptions to God or Scriptures like the Ten Commandments (even in the highest court of the land), our pledge of Allegiance having the phrase “One Nation under God,” Congress establishing military chaplains, Congress enacting legislation to proclaim a National Day of Prayer every year, National Cemeteries having images of crosses on a plethora of headstones, and our National Anthem having the words: “Praise be the Power that hath made and preserved us a nation, Then conquer we must, when our cause it is just, and this be our motto, In God is our Trust.”
When the SCOTUS in Zorach v. Clauson ruled to allow public schools in New York to release students during school hours for religious instruction, it plainly acknowledged: “we are a religious people whose institutions presuppose a Supreme Being.” Even a dissenter in that decision, Justice Black, acknowledged that this concept of our institutions presupposing a Supreme Being was true at the time of the drafting of the First Amendment.
Your attempt to declare us as always being a secular nation is gross revisionist history that is basically a big lie of modern lawyers and atheists, a lie that was promulgated less than 100 years ago.
rcampbell wrote: “The ONLY “obvious solution” is for theists to keep their praying ( silent meditations: a transparent attempt to insert prayers) in their churches, mosques and synagogues and out of the public and political spheres.”
No, the plan from our foundation was religious TOLERATION, not persecuting the religious into silence and obscurity.
rcampbell wrote: “That was as equally inappropriate as beginning Congressional sessions with a prayer, inserting “..under god…” in our Pledge of Allegiance and the appearance of “In god we trust” on our currency. All of these are dead wrong and are quite offensive.”
I pray that you will learn to develop the tolerance of the founding fathers of our great nation.
Simple solution: on Monday dress in orange and lead the class in a chant of “Hare Krishna, Krishna Krishna, Hare Hare.” Wednesday you can have a Wiccan festival in honor of Woden, father of Norse Gods. On Friday, being the Muslim holy day, bring prayer rugs and have “Allahu Akbar” called over the PA system.
Isaac wrote: “The obvious solution for this is to allow a two minute moment of absolute silence in school classrooms before the day starts, during announcements.”
You may want to read Wallace v. Jaffree. In that case an Alabama law set aside one minute at the start of the day. The SCOTUS said no, that moment of silence is unconstitutional. It was a divided and poorly argued decision, but it has standing in regards to your “obvious solution.”
http://www.oyez.org/cases/1980-1989/1984/1984_83_812
Alabama Bill Would Require School Prayer, Disguised as Civic Education
Written by Don Byrd
Baptist Joint Committee for Religious Liberty
Wednesday, 12 February 2014
http://www.bjconline.org/index.php?option=com_content&task=view&id=5880&Itemid=134
I have to hand it to Alabama State Representative Steve Hurst. Despite clearly established First Amendment law prohibiting school-sponsored prayer in public schools, he is still trying to find some way to make it a reality. Via Religion Clause, House Bill 318 would require schools to open the day with a 15-minute session that includes a prayer. How does he try to sidestep that pesky thing called the Constitution? Well, according to Hurst, it’s not really prayer as a religious exercise. It is instead an education in civic history because schools will be merely reading prayers that have been delivered in Congress and the state legislature to open their days.
Sneaky, huh? He just wants to expose the students to those great prayers of congressional and state capitol history.
The Anniston Star brings us the quote of the day, from Hurst:
“If Congress can open with a prayer, and the state of Alabama Legislature can, I don’t see why schools can’t,” said Rep. Steve Hurst, R-Munford, the bill’s sponsor.
Really? Don’t see why?
Rep. Hurst may not see it, but there are significant and obvious differences between Congress and state legislatures on the one hand and public schools on the other that make his proposal especially outrageous. First, public school attendees are *children.* Courts consistently emphasize the importance of safeguarding children from the coercive effects of state-sponsored prayers in school and at school events. Parents should be the ones to make decisions regarding the religious indoctrination of their children, not principals and certainly not state legislators.
Second, students are a captive audience. They are required to be at school. If you have ever watched an opening prayer in Congress, you know that hardly anyone is there. And the gallery that is there plays just an observer’s role, not a participant in the congressional session.
So, I award points for ingenuity to Rep. Hurst, but his proposal still falls short. School-sponsored prayer, no matter how you package it, runs afoul of the religious freedom rights guaranteed by the First Amendment.
A clever move highlighting the difference in jurisprudence between differing branches of government.
Many make sport of the word “study” but I think that is precisely what is desired. There would be no prayer–instead they would be conversing with the students about why it is that the government is confused. This would in itself pressure the Court to actually makes sense. As Thomas said in Davenport v American Atheists as the writs of cert were denied in 2011,
“Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”
Perhaps with Galloway the Court will provide clarity but I am certainly not holding my breath.
The Court rests uneasy in its relatively new position of Buddha on top of the hill. As petitioners crawl up the mountain periodically asking “Is ….this acceptable?” they waffle.
No doubt with hidden fingers in the air our Ivy leage aristocratic oligarchy measures the consequences of their decisions between inteviews with journalists.
Take heart. Perhaps a clerk will read Professor Turley’s blog and let the Justices know that most people do not want this law.
That should do the trick.
These are children, impressionable children. Why would I want someone’s else’s religion imposed on my chld? As Jill said a prayer to any deity would be possible. Would the unconstitutionality of this thing go all the way and include only Christian prayer? How is this any different than the bus driver prostheliizing to a bus load of captive children? Why do these state entities attempt to bring back organized prayer in schools? It smacks of “A Christian Nation”.