Prayer and the Pledge

School Prayer

The most enduring and controversial issue related to school-sponsored religious activities is classroom prayer. In Engel v.Vitale (1962), the Supreme Court held that the Establishment Clause prohibited the recitation of a school-sponsored prayer in public schools. Engel involved a simple and seemingly nonsectarian prayer composed especially for use in New York’s public schools. In banning the prayer exercise entirely, the court did not rest its opinion on the grounds that unwilling students were coerced to pray; that would come much later. Rather, the court emphasized what it saw as the wrongs of having the government create and sponsor a religious activity.

The following year, the high court extended the principle outlined in Engel to a program of daily Bible reading. In Abington School District v. Schempp, the court ruled broadly that school sponsorship of religious exercises violates the Constitution. Schempp became the source of the enduring constitutional doctrine that all government action must have a predominantly secular purpose – a requirement that, according to the court, the Bible-reading exercise clearly could not satisfy. By insisting that religious expression be excluded from the formal curriculum, the Supreme Court was assuring parents that public schools would be officially secular and would not compete with parents in their children’s religious upbringing.

With Engel and Schempp, the court outlined the constitutional standard for prohibiting school sponsored religious expression, a doctrine the court has firmly maintained. In Stone v. Graham (1980), for instance, it found unconstitutional a Kentucky law requiring all public schools to post a copy of the Ten Commandments. And in Wallace v. Jaffree (1985), it overturned an Alabama law requiring public schools to set aside a moment each day for silent prayer or meditation.

School sponsorship of student-led prayer has fared no better. In 2000, the Supreme Court ruled in Santa Fe Independent School District v. Doe that schools may not sponsor student-recited prayer at high school football games.

More sweeping in its consequences is Lee v. Weisman (1992), which invalidated a school-sponsored prayer led by an invited clergyman at a public school commencement in Providence, R.I.The court’s 5-4 decision rested explicitly on the argument that graduating students were being forced to participate in a religious ceremony.The case effectively outlawed a practice that was customary in many communities across the country, thus fueling the conservative critique that the Supreme Court was inhospitable to public expressions of faith.

So far, lower appellate courts have not extended the principles of the school prayer decisions to university commencements (Chaudhuri v.Tennessee, 6th U.S. Circuit Court of Appeals, 1997; Tanford v. Brand, 7th Circuit, 1997).The 4th Circuit, however, found unconstitutional the practice of daily prayer at supper at the Virginia Military Institute. In that case, Mellen v. Bunting (2003), the appellate court reasoned that VMI’s military-like environment tended to coerce participation by cadets.The decision was similar to an earlier ruling by the U.S. Circuit Court of Appeals for the District of Columbia, which found unconstitutional a policy of the U.S. service academies that all cadets and midshipmen attend Protestant, Catholic or Jewish chapel services on Sunday (Anderson v. Laird, 1972). For the court, the key element was the service academies’ coercion of students to attend the religious activity.

The Pledge of Allegiance

In 1954, Congress revised the Pledge of Allegiance to refer to the nation as “under God,” a phrase that has since been recited by generations of schoolchildren. In 2000, Michael Newdow filed suit challenging the phrase on behalf of his daughter, a public school student in California. Newdow argued that the words “under God” violated the Establishment Clause because they transformed the pledge into a religious exercise.

The case, Elk Grove Unified School District v. Newdow, reached the Supreme Court in 2004, but the justices did not ultimately decide whether the phrase was acceptable. Instead, the court ruled that Newdow lacked standing to bring the suit because he did not have legal custody of his daughter. In concurring opinions, however, four justices expressed the view that the Constitution permitted recitation of the pledge – with the phrase “under God” – in public schools.

Since then, the issue has not again reached the Supreme Court but is still being litigated in the lower courts. In Myers v. Loudoun County Public Schools (2005), the 4th U.S. Circuit Court of Appeals upheld the reciting of the pledge in Virginia, but a U.S. district court in California ruled the other way in a new suit involving Michael Newdow and other parents.The court ruling in California, Newdow v. Congress of the United States (2005), is on appeal in the 9th U.S. Circuit Court of Appeals.

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