Legal Affairs – Prayer and Creationism: Met With Supreme Hostility

National Journal

It may now be unconstitutional for a public school teacher or student leader to recite the Pledge of Allegiance in class. Or at a football game. Or at a graduation. Or to recite the Declaration of Independence. Or to sing the national anthem.

At least, this is a plausible reading of the Supreme Court’s 6-3 decision on June 19 that struck down a Texas high school’s policy of allowing an elected student leader to pray over the public address system at football games. It seems most unlikely, of course, that the Justices would actually take the radical step of banishing the pledge from school ceremonies anytime soon-if only because it would be all too obvious that if the law says that, then the law is an ass. But the more-liberal Justices might have to strain to avoid carrying their logic that far. And the three dissenters had reason to complain that "the tone of the Court’s opinion … bristles with hostility to all things religious in public life."

To be sure, the Texas school may have crossed the line into unconstitutional sponsorship of religion. Justice John Paul Stevens properly stressed in his opinion for the majority that various detailed provisions of the school’s recently adopted policy-which authorized election of a single student leader for the entire season to deliver "a brief invocation and/or message" before each home game-rendered it "simply … a continuation" of the school’s long-standing practice of sponsoring official prayers. That inference was enhanced by allegations that school officials had "chastis[ed] children who held minority religious beliefs" and had "distribut[ed] Gideon Bibles on school premises."

But Stevens did not stop there. He also implied strongly that the Court would strike down as an act of the state any prayer initiated by a majority vote of students, even at a school whose administrators have always eschewed endorsing any form of religion and have made it clear that nonreligious and religious messages are equally welcome. "The majoritarian process implemented by the district guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced," Stevens asserted, leaving them "at the mercy of the majority" and feeling a "sense of isolation and affront."

Really? One Ben Marcus recalled in Time that far from " `isolation and affront’ … I sometimes found an unexpected degree of the opposite: inclusion and camaraderie with my teammates after taking part in the pregame prayers, a solemn connection that I wanted to scoff at but, because it moved me, could not."

The kind of prayer that Marcus found so benign is apparently too redolent of the Spanish Inquisition for the Supreme Court’s taste: "Students … feel immense social pressure … to be involved in … high school football," Stevens explained, and thus "to risk facing a personally offensive religious ritual…. [So] the delivery of a pregame prayer has the improper effect of coercing those present to participate in an act of religious worship." Wow.

Here we have two untenable propositions: that even though those present are free to sit or stand silently, turn their backs, or leave, any vote by a student majority to have prayers amounts to (1) "coercion" of nonbelievers and religious minorities to (2) "participate in an act of religious worship."

And that brings us to the Pledge of Allegiance. The most obvious problem is the phrase "under God," which was inserted in 1954 between "one nation" and "indivisible." Under the Court’s reasoning, those two words alone would seem to make the thousands of teachers who regularly lead their students in the pledge into serial violators of the establishment clause. (The same could also be said of teachers who lead students in singing the national anthem. The last verse includes: "And this be our motto: `In God is our trust.’ ") Well, we can fix that little problem by stripping "under God" out of the pledge, can’t we? Nope. Not if we superimpose the logic of the June 19 Stevens opinion upon that of the famous 1943 decision striking down a West Virginia law that had compelled all students-on pain of expulsion and prosecution of their parents-to join in saluting and pledging allegiance to the flag.

Ruling that Jehovah’s Witnesses had a right to refuse to salute or to recite the pledge (which did not then refer to God), Justice Robert H. Jackson penned some of the most stirring words in all of constitutional law: "If there is any 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." It violates the freedom of speech, Jackson held, to compel anybody to join in a public statement on any "matter of opinion" over his or her objection-whether or not religion is a factor.

"The refusal of these persons to participate in the ceremony," Jackson added, "does not interfere with or deny rights of others to do so." But now comes the June 19 Stevens opinion, which deems it "coercing those present to participate" when a student majority votes for a ceremony (at least a religious one) to which any student objects.

It’s hard to see why a patriotic ceremony would be any less coercive than a religious one. So it might be logical (if dumb) to extend to patriotic ceremonies Stevens’ assertion that "school sponsorship of a religious message is impermissible because it sends the ancillary message to members of the audience who are nonadherents that they are outsiders, not full members of the political community."

Suppose that the child of a Symbionese Liberation Army veteran, or of a Chinese diplomat, objects on political grounds to hearing the pledge recited at school. Under the 1943 decision, the child clearly could not be compelled to join in, and rightly so. But would Stevens also bar the school from allowing anyone to recite the pledge, with or without "under God," lest it send a message that those who object are "outsiders, not full members of the political community"?

A similar argument could be made for barring a recital of the Declaration of Independence if any student objects to the idea that "all men are created equal"-not to mention the neo-theocratic stuff that Thomas Jefferson threw in about being "endowed by their Creator with certain inalienable rights."

Far-fetched? Sure. But it’s unclear how and where the Court can stop sliding down this slope. And "if the speech of the majority may be restricted to avoid giving offense to the minority," as Jeffrey Rosen suggests in The New Republic, some evangelical Christians might raise equally plausible objections to evolution being taught in their presence, "on the grounds that it offends their belief in creationism."

Speaking of which, consider another vote by the same 6-3 majority, also on June 19, involving a Louisiana school board’s policy on teaching evolution. The policy did not bar such teaching, or require the teaching of creationism. It simply said that whenever "the scientific theory of evolution is to be presented," teachers should tell students three things: that it is "not intended to influence or dissuade the Biblical version of Creation or any other concept"; that each student has "the basic right and privilege … to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter"; and that "students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion."

That’s it. Seems pretty innocuous-indeed, enlightened-to me. Yet six Justices voted without comment to let stand a federal appellate decision striking down the policy as yet another establishment of religion. The dissent, by Justice Antonin Scalia, seems persuasive: "Far from advancing religion … the [effect of the] disclaimer … is merely to advance freedom of thought … [by an] acknowledgment of beliefs widely held among the people of this country."

Yes, there really are a lot of people in the hinterland who still believe such stuff. Not many of them went to Ivy League schools, or hang out with Supreme Court Justices. Nor do their traditions and beliefs get much consideration in such sophisticated quarters. So now we have come, in Scalia’s words, to "bar[ring] a school district from even suggesting to students that other theories besides evolution-including, but not limited to, the Biblical theory of creation-are worthy of their consideration."

Small wonder that some conservative Christians are starting to ask, as did an Illinois woman quoted last month by The New York Times, "How long it will be before they tell us we can’t pray in public places"?