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The Collegian

Fresno State's student-run newspaper

The Collegian

Notes & Asides, 9-7-11

In a recent blog post, I wrote, “The First Amendment’s Establishment Clause only prevents the federal government from establishing a state religion and from prohibiting a person from practicing their religion. By my reading, the First Amendment does not preclude prayer in public schools.”
Commenter joshua4234 disagreed:

I don’t think you read the First Amendment right. It doesn’t say, “Congress shall make no law establishing a state religion,” it says, “Congress shall make no law respecting an establishment of religion.” Let’s break this down, what is “an establishment?” You ever talked about a business by saying “this establishment?” Basically it’s an institution, so an institution of religion, aka church. Now what does “respecting” mean? Does it just mean establishing as a state religion? Or perhaps treating it favorably compared to a different religious thought? This is why I take it to mean it shouldn’t give one religion preferential treatment to another, and thus by extension not prefer any religion or not having one. Thus, public teachers, being an extension of the state, shouldn’t lead prayer.

To an extent, this is merely an academic discussion: the Supreme Court holds that the Fourteenth Amendment incorporates this clause to the states, and also holds that teachers in public schools cannot lead students in prayer in class.

However, that doesn’t mean that the Court cannot be wrong. All one must do is look at the Dred Scott case. So the question is relevant.

Joshua4234’s reasoning, however, is difficult to follow. One can reach the same conclusion that he reaches without using these convoluted (and, frankly, false) definitions of “establishment” and “respecting.”

The view I take is the one that the country took until the Supreme Court interpreted the Incorporation Doctrine into the Bill of Rights.

The relevant First Amendment clause reads thus: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

Therefore, Congress could not establish a State religion, and neither could they pass laws which prohibit people from practicing their religion.

The words “respecting” and “establishment” do not change this reading of the clause. To establish a religion means exactly that ”” instituting a State religion with a State church, a la Great Britain. That the Constitution outlaws Congress from making a law respecting such a church just means that they cannot pass a law that does this.

On top of this, the clause only applied to the national government (Congress shall make no law…). States could and in fact did have state churches, up until the 1830s.

With the advent of the Fourteenth Amendment, this changed a bit ”” there have been varying views on how this amendment should be interpreted, but pretty much everyone believes at least part of the Bill of Rights are to be incorporated to the states.

Even still, I doubt that the Framers envisioned that the same Supreme Court that prays before it begins its business could outlaw the same action in public schools.

View Comments (4)
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Comments (4)

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  • D

    David WintersJan 9, 2012 at 8:59 am

    You seem to ignore the possibility that “establishment” can be a verb.

    Further the term “respecting” in that day meant “with respect to.” (Respect was not a verb, only a noun, as in “respect for the opinions of mankind” used previously in the Declaration.)

    Reply
  • M

    MichaelSep 7, 2011 at 6:03 pm

    I see that this platform is turning into a “hit” parade of posters that challenge, which I didn’t see coming when I read the initial post as to why this was created. I find it odd.

    Nonetheless, I’ve seen some growth in the writer from previous semesters. He seems more willing, and capable, of making arguments, breaking down and analyzing texts, etc. I just think its odd that he’s confronting/challenging the commenters, being that they don’t have an equal platform to respond.

    The last one regarding 3rd parties was baffling to me because the discussion started to center and revolve around a relatively meaningless question (who was the most successful 3rd party presidential candidate) rather than confronting the reasons why 3rd party candidacy has become so marginalized and hopeless. And whether or not it is compatible with democracy to have two goliath parties deliberately block access to non-major party candidates, and whether these methods are ethical or just. Or on the pros/cons of voting for 3rd party candidates, considering its implications on the two major party candidates.

    The author is right in that the courts, and often the precedents they set, are wrong, and Joshua is right, in that that is what we are forced to work with.

    I think if certain public school districts want to have a prayer session in their schools (which is not necessarily religious), while it may be a bad idea and make many people uncomfortable, it doesn’t seem incompatible with “congress shall pass no law respecting the establishment of religion…” Prayers to “God” do not have to invoke any particular God or religion. Stupid, yes. Unconstitutional, I’m not so sure. If the school district or state mandated schools lead Christian or Muslim prayers, then sure, that is blatantly unconstitutional. And parents and community can object to these things if they don’t like it, and if there is enough outrage, their representatives will take note and (in a functional democracy) change it.

    In terms of policy, Joshua is right in asking the author to imagine sitting in class with pagans (or Muslims, or Jews, or atheists, etc.) and asked to worship many different gods (or Allah, or Yaweh, or nothing) because the best policy is to keep public sectors like schools as sterile as possible. That is not (ideally) the public sectors place. Individuals should be able to do whatever — the Christian should have a time and space to pray if they choose (privately) at school, and the atheist should be free from taking part in that — and not be forced into some unified arbitrary act.

    I mean the constitution is very inconvenient to our lives, it often disagrees with our personal views, because it is very limited as to what it does not (or does) allow.

    Reply
  • P

    PhilosotrollSep 7, 2011 at 5:59 pm

    The Framers had nothing to do with the writing of the fourteenth amendment, so its hard to argue that they would see the issue unfolding this way. Of course, that’s only one of many issues that they didn’t have foresight on; there’s a reason the 14th amendment was, and is, a necessity for protecting minority rights.

    The issue is whether the government is responsible for keeping the schools neutral with respect to religion. Joshua has already explained (pragmatically) why they should.

    The issues with bullying are severe enough that this shouldn’t even ben an issue that requires judicial protection. It should be a common sense protection that exists for public school students, as it is highly correlated with instances of bullying and other forms of abuse. In a setting controlled by the government, like public education, there is an obligation to ensure equal protection; that is the issue.

    Reply
  • J

    joshua4234Sep 7, 2011 at 1:53 am

    All you seemed to do is call my reasoning hard to follow and definitions false without much explanation past that it’s what you believe, simply restating you think all it means is establishing a state religion. I tried to explain why I think the wording there implies something broader that simply establishing a state religion. They didn’t just take that phrase and make it part of the constitution right off the bat, there were debates and several iterations that lead to that specific wording. What I’ve gathered from their progression has lead me to believe what I do. Maybe since I’m more a fan of Jefferson and Madison I’m reading their beliefs more into it than I should. Regardless, I don’t think my belief about that is terribly important compared to court rulings and how it’s being applied.

    Since the main topic that started the conversation was about prayer in school, how about we set aside the legality and more importantly why you think it’s the right thing to do. Try to ignore your Christian privilege for a moment and imagine having gone to a state middle school where everyone else was pagan of some stripe. Now imagine every morning there was time where the teacher and all classmates would sing/chant a prayer to many gods of nature. How would you feel? Would you feel there was nothing wrong going on?

    Reply