A football coach in Washington was recently suspended from his duties because he made a habit of praying at midfield following games. Players or students were never asked or required to participat,e but some did join him voluntarily for a post-game prayer that typically lasted 15 to 20 seconds. Prior to his suspension, the coach was ordered to stop praying because school officials, citing the Supreme Court, said they did not want to be seen as endorsing religion. The school district said that “students required to be present by virtue of their participation in football or cheerleading will necessarily suffer a degree of coercion to participate in religious activity when their coaches lead or endorse it.” On the matter of religion, we have moved far from the vision of this nation’s founders.
At the time of this country’s formation, religion was an integral part of daily activities in both government and schools. The Bible was a textbook in many schools; church services were held in the Capitol building; and prayer in both forums was commonplace and routine. The Founding Fathers who wrote the First Amendment lived in such a world and valued its ideals, but in reaction to the heavy hand of the Church of England they thought it prudent to ensure that there would be no national, government-sponsored church denomination in their new country.
In a span of little more than two centuries, America has been transformed from a country where religious activity was valued and welcomed in the public square to a place where a government employee can be fired for simply praying on school grounds. Officials cite the First Amendment and claim that if a school leader prays on the property and students can volitionally join, this equates to a full-fledged endorsement of religion, thus violating the Establishment Clause.
Nothing in the Constitution has been so judicially perverted from its original intent as the Establishment Clause. The same clause went from protecting the people from a tyrannical state-run church to punishing those who dare to voluntarily pray on government property.
The transformation of the meaning of the Establishment Clause began with the new definition of the clause in Everson v. Board of Education in 1947. Justice Hugo Black’s broad and sweeping interpretation gave legal effect to Thomas Jefferson’s “wall of separation” statement, thus drawing a judicial line between all things religious and all things government. Everson also determined that liberties under the establishment clause are subject to the due process clause, meaning that governmental entities, including state and local, must also comply with whatever behavior the court deems appropriate under its wavering interpretations. This new precedent served as the legal foundation for a series of cases in the 1960s concerning school prayer in which the Supreme Court held that the daily recitation of prayer was now unconstitutional.
In the modern era, even a moment of silence in schools for the purpose of private prayer was disallowed, because it was determined that the intent of the lawmakers was to advance religion.
This now-established constitutional precedent has no basis in the legislative history of the First Amendment and would be flatly rejected by the Founders. Supreme Court Justice Joseph Story was nominated to the bench by James Madison and was a contemporary of many of the Founding Fathers, and his legal commentary on the meaning of the Establishment Clause reflects the intent of its authors and its purported effect:
The general, if not the universal sentiment in America was, that Christianity ought to receive encouragement from the State so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.
Story’s interpretation of the Establishment Clause is supported by numerous policy positions in the founding era, such as the appointment of a congressional chaplain, the provision in the Northwest Ordinance calling for religious education, and the presidential proclamations of days of prayer.
The Establishment Clause in its original form and intent was never meant to secularize schools and government, but the repeated perversions of its meaning via judicial precedent have created a culture in which religion in the public square is anathema. This has resulted in hair-trigger reactions by school districts and government officials to ban any activity that carries any semblance of religion on state grounds.
The First Amendment – and the Bill of Rights more generally – was designed to be a restraint on Congress and the federal government, but is now used to prevent voluntary actions of individuals simply because they take place on land owned by a government. The federal government should neither establish a state church, nor should it endorse a specific denomination, but preventing free and voluntary exercise of religion using the very clause designed as a check on federal authority is an offense to the Constitution, the states, and individuals.
