Prayers for Presidents and public schools

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Mar 16, 2009 1 Comment ›› Ben DuPré

Prayers for Presidents and public schools

It looks like prayer still has a prayer, according to two court cases decided in the past week.

Newdow v. Roberts. First, last Thursday, March 12, 2009, a federal district court in Washington, D.C. rejected the attacks (http://www NULL.pacificjustice NULL.org/resources/news/focusdetails NULL.cfm?ID=PR090312a) upon the clergy prayers given at the Presidential Inauguration, the latest in attacks on the public exercise of faith by atheist Michael Newdow & Co.  As we reported here (http://morallaw NULL.org/blog/?p=563), Newdow, along with the American Humanist Association and others, sued to stop Chief Justice Roberts from uttering “so help me God” at the end of the administration of the Presidential oath of office, and to stop prayers given by invited clergy at the Inauguration.

The district court did not rule on the merits of the case (whether the prayer or “so help me God” violated the Establishment Clause), but instead dismissed the suit because Newdow and the other plaintiffs lacked standing to bring it, they could not show how they would be harmed, and they failed to show that the Court even had the power to stop the inauguration prayers and “so help me God.”

Moreover, the Court finds that none of the plaintiffs in this case have standing to challenge the defendants’ actions as pled in the complaint because they have identified no concrete and particularized injury. And, even if the plaintiffs could establish such an injury, they have failed to demonstrate how the harm they allege is redressable by the relief they seek, or that the Court has any legal authority to award the relief requested. Therefore, the Court finds that the plaintiffs lack standing to bring this action and that it must dismiss this case.

Consider the doors of justice now closed to those attacking the time-honored American tradition of public prayer and recognition of God at the Presidential Inauguration.  And for Mr. Newdow specifically, consider that door locked:

ORDERED that plaintiff Newdow is precluded from challenging the issue of whether he has standing to contest the utterance of prayer at the Presidential Inaugural ceremony based on prior judicial determinations that he lacks standing.

Ouch.  Newdow has brought this argument before, in this court and others, and has no, ahem, prayer for relief any more in this matter.   We can only hope Mr. Newdow takes the hint, but he is not usually one to lack the faith to persevere.  And there is always the option to appeal, so stay tuned.

Croft v. Governor of Texas. Halfway across the country, the 5th Circuit Court of Appeals has upheld (http://www NULL.google NULL.com/hostednews/ap/article/ALeqM5imQG80YMezF1XffdAYD-tNESqClgD96V9O301) the Texas public school minute-of-silence law (http://tlo2 NULL.tlc NULL.state NULL.tx NULL.us/statutes/docs/ED/content/htm/ed NULL.002 NULL.00 NULL.000025 NULL.00 NULL.htm) that required “one minute of silence at each school” for students to “reflect, pray, meditate, or engage in any other silent activity.”  That moment of silence was apparently too offensive for the Croft family and others because the legislature specifically gave “pray” as one of the options.  They sued in federal court claiming the moment-of-silence law should have been silent about voluntary, silent prayer.

The Foundation for Moral Law filed an amicus brief (http://morallaw NULL.org/archive20080813 NULL.htm) in this case last year, pointing out the absurdity of having to argue that a time set aside for silence could unconstitutionally establish anything, let alone a religion.  The First Amendment, of course, only bans “law respecting an establishment of religion.”  Suggesting prayer as a voluntary option during a quiet time affirms religious liberty, it does not offend it.

The 5th Circuit did not apply the words of the First Amendment, unfortunately, but came to the same result (http://www NULL.oag NULL.state NULL.tx NULL.us/newspubs/releases/2009/031609croft NULL.pdf) using the judicially invented Lemon test.  The Court noted that most of the Texas legislators that commented on the bill before passage assured one another that they were not trying to restore prayer back to school.  There was “no evidence of a steady ‘prayer in schools’ effort,” as the Court put it.  The Court was satisfied that there existed two “secular” purposes for the moment-of-silence bill:  “Here, that intent was to promote patriotism and allow for a moment of quiet contemplation.”

While this is a victorious result for the fairly innocuous practice of moments-of-silence in public schools, it reaffirms the sense that even mentioning voluntary (and silent!) prayer in schools must be smuggled by the judicial guards under cover of secular patriotism and mental “down time.”  Suggesting to students that they pray for the sake of praying is verboten, thanks to Wallace v. Jaffree (http://supct NULL.law NULL.cornell NULL.edu/supct/html/historics/USSC_CR_0472_0038_ZO NULL.html) (1985).

In Wallace, the Supreme Court struck down an Alabama provision adding “or voluntary prayer” to the moment-of-silence statute.  The Court psychoanalyzed the Alabama legislators who sponsored the bill, particularly the sponsor, who dared to praise the “effort to return voluntary prayer” to the public schools.  This “religious purpose,” declared the Supreme Court, made the bill unconstitutional, not simply the addition of the words to the law.  The Wallace Court concluded:

The addition of “or voluntary prayer” indicates that the State intended to characterize prayer as a favored practice. Such an endorsement is not consistent with the established principle that the government must pursue a course of complete neutrality toward religion.

Thereafter, and here in Croft, judges must not only look at the challenged law, but must scour the legislative record to make sure the legislators were not thinking about praying when they put the word “pray” in the list of voluntary options for a temporarily silenced school room.  Prayer must remain in its lower caste as an officially disfavored practice to be allowed into government spaces.

Try to square the anti-prayer stance of Wallace with the courts’ repeated protection of the Presidential Inauguration’s much-more-public, much-less-neutral support—nay, invitation—of prayer, and you see why Newdow keeps coming back for more lawsuits.  If your attacks on public expressions of religion at first do not succeed, try another legal approach.  There’s always an anomalous outpost of an Establishment Clause case from which a fresh battle can be launched.

I predict it will not be long before Newdow takes a bold shot at the Supreme Court’s opening prayer: “God save the United States and this Honorable Court.” When that time comes, the Supreme Court will have so undermined its own ability to defend such a practice that it will either denigrate the invocation as a mere “ceremonial deism” devoid of any religious significance or it will simply surrender and censor itself as it has the public schools.

The Court is not likely to want to make itself look like a public school, however, because all the chiseling and sandblasting that would be needed to remove all the Ten Commandments symbolism off its courthouse walls (http://morallaw NULL.org/blog/?p=31) would be too much of a messy hassle. (Note the tablet to the left that sits above the Chief Justice (http://morallaw NULL.org/blog/?p=80).)  The Court would much rather denigrate public religious expression than its own courthouse.

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Comments

  1. Melanie Wood says:

    The Ten Commandments, the Five Pillars of Islam, the Torah, Hindu shrines, Buddha and their respective prayers- none have a place in public schools or other state buildings, where Business of the State is conducted.

    These belong in their respective churches, mosques and temples, where Business of Faith is conducted.

    Separation of church and state keeps our nation healthy and functioning, and to that end, our secular government is crucial and must be protected, as set forth by our Founding Fathers.

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