Amending the School Prayer Amendment

The missing clause in the Republicans’ “Contract With America,” which surfaced for a moment after last November’s election only to be submerged until this summer, is the promise to secure a vote on a constitutional amendment that would permit voluntary and student-led prayers in the public schools. Nonetheless, Newt Gingrich’s personal commitment to an amendment to the Constitution permitting voluntary school prayer is clear. Not only has the Speaker promised a House vote on an amendment by the summer, but the sentiment behind the proposal seems genuinely to be central to the articulated vision of a “renewal of American civilization” that informs all the speeches of this professor-turned-politician. “I do not have a vision of America which is dramatically better just because people pray,” he said in a speech at the Heritage Foundation a month before the November vote, “but I do have a vision of an America in which belief in the Creator is once again at the center of defining being an American.”

Though usually identified with the entrepreneurial wing of conservatism, Gingrich follows in the tradition of authors such as Michael Novak in seeing a link between individual enterprise and religious faith. His critique of the secular welfare state and his ambition to dismantle it rest not on secular libertarian premises but on his sense that the welfare state undermines the sense of responsibility for oneself and others that goes along with seeing oneself as God’s creature. The point of allowing school prayer, Gingrich argued in that speech, is to “reestablish . . . that there is a spiritual dimension to our existence” and “to remind everyone of the word ‘Creator.’“ Without such an understanding, such evils as poverty and crime are intractable.

Shortly before last November’s election, Representative Ernest Istook of Oklahoma introduced, with the Speaker among his cosponsors, a draft constitutional amendment:

Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or by any State to participate in prayer. Neither the United States nor any State shall compose the words of any prayer to be said in the public schools.

To my mind this draft is a good start for this year’s deliberations, but in accepting in its final sentence the verdict of the Supreme Court’s first prayer decision, in 1962, which threw out New York’s simple and ecumenical Regents’ prayer, the draft is either too timid (liberty depends on the voluntariness of a prayer’s recital, not the accident of its composition) or too sectarian (given the Court’s expansive notion of state action in the 1992 graduation prayer case, even suggested guidelines for nonsectarian public prayer might be forbidden). If the moment is ripe, and if something more is intended than a constitutionalized version of the Equal Access Act, then a proposal is due, at least for debate, that would stem the tide of militant secularism that has flooded American life and law since the 1960s. Opposition to any school prayer amendment is assured, after all, so nothing is lost by a serious effort to recover the place of religion in American public life.

Remembering that the Bill of Rights was originally drafted by James Madison after assembling the many proposals for amendments submitted by state ratifying conventions, and that the amendments as actually passed were significantly altered from Madison’s initial draft, I would add the following version to the deliberations:

The prohibition of laws respecting an establishment of religion shall not be construed to forbid voluntary prayer or other religious exercise in public places, or to bar expenditure of public money for the general welfare through religious institutions; nor shall general laws be held invalid on grounds of the religious beliefs or motives of those supporting enactment of such laws.

Let me recount what I think are the advantages of an amendment of this sort. The peculiar locution, or circumlocution, with which this draft amendment begins is meant to take a clear position on a fundamental issue necessarily raised by any effort to further amend the Constitution with respect to religion: The purpose of the amendment would be to restore the original understanding of the Founding generation, which has been misconstrued by several generations of justices on the Supreme Court, and not to alter the historic American principle of religious liberty. As scholars as diverse as Robert Cord, Gerard Bradley, Ellis Sandoz, Thomas Curry, Michael McConnell, and others have shown, and as Supreme Court justices including Warren Burger, William Rehnquist, Antonin Scalia, and others have accepted, the Religion Clause of the First Amendment must be understood in the context of the vibrant spiritual life of late eighteenth-century America and thus should not be seen as forbidding a wide array of then-contemporary practices, including government-sponsored prayer, proclamations of days of prayer and thanksgiving, even grants to the clergy to run schools for the Indians. The prohibition against laws “respecting an establishment of religion” was meant, in the eyes of these scholars and justices, to insure that the federal government would not prefer one denomination to another (as some states at the time still did); at most, even taking Jefferson’s and Madison’s campaign for disestablishment in Virginia as the paradigm rather than the exception, the intention was to prevent the government from subsidizing religion itself. (As Speaker Gingrich puts it, “the Founding Fathers were trying to limit government in a world in which, literally, you had to pay a tax to a church you didn’t belong to and didn’t believe in.”) Nearly everyone at the time assumed that society depended upon a shared morality, and that morality, at least for most men, was a product of religious faith. As Paul Johnson writes in his January 1995 Commentary article, “God and the Americans,”

though the Constitution and the Bill of Rights made no provision for a state church-quite the contrary-there was an implied and unchallenged understanding that America was a religious country, that the republic was religious not necessarily in its forms but in its bones, that it was inconceivable that it could have come into existence, or could continue and flourish, without an overriding religious sentiment pervading every nook and cranny of its society. This religious sentiment was based on the Scriptures and the Decalogue, was embodied in the moral consensus of the Judeo-Christian tradition, and manifested itself in countless forms of mainly Christian worship. Since American religion was a collection of faiths, coexisting in mutual tolerance, there was no alternative but to create a secular state entirely separated from any church. But there was an unspoken understanding that, in an emotional sense, the republic was not secular. It was still the City upon a Hill, watched over and safeguarded by divine providence, and constituting a beacon of enlightenment and an exemplar of conduct for the rest of the world.

That this consensus survived until almost yesterday can be confirmed by anyone who reads the walls at the great monuments in Washington, D.C., or considers the paintings that hang in the rotunda of the Capitol, or goes over in his mind all the verses of nearly any of our patriotic songs.

Now my point is not to deny any plausibility to the alternative interpretation; after all, some of the leading statesmen of the Founding seem to have been quite a bit more secular than most of their contemporaries, and an America that became ever more religious in the wake of the Second Great Awakening was the America that went to Civil War. Rather, it is that, since the interpretation sketched in the preceding paragraph has its own cogency, it is legitimate for the people to establish it as authoritative, and it would be wise for them to so establish their authority in a way that recovers the American tradition, or in other words, in a way that keeps the prohibition on establishment and the guarantee of free exercise of religion intact.

No one is suggesting that the American experiment in religious liberty has proven a failure and that as a consequence we must repair to the comfort of an established church, but only that the recent experiment in strict separationism and militant secularism has impinged on religious liberty itself and must be curbed. The language offered, “shall not be construed,” borrowed from the Ninth and Eleventh Amendments and used as well in the Istook draft, makes it clear that the error to be corrected was committed in legal circles. The implication is, I think quite evidently, that states and cities and counties and towns would have ample room to determine for themselves how to acknowledge and involve the spirit of religion in the life of their communities, provided that no particular church gained official status and that the rights of conscience were preserved.

The aim of the draft amendment’s school prayer clause is obviously to allow a long-standing American tradition to be restored. The universal acquiescence in speaking explicitly of voluntary prayer shows that the advocates of a school prayer amendment do not differ from the courts in rejecting coercion in religious matters. They only have a hardier notion of what it means to be coerced: religious liberty is not a right never to be confronted with ultimate questions or made uncomfortable by difference. To be sure, the sort of public prayer that is usually offered will seem thin gruel to an Orthodox Jew, a traditional Catholic, or a Protestant evangelical, but that hardly seems to be a reason for supposing it does no good, only a reminder that civil religion is an introduction to, not a replacement for, the real thing.

As for the protection offered in my text for “other religious exercise in public places,” I mean to endorse an interpretation of what the Constitution permits in holiday displays and in the use of public facilities by religious groups that does not privilege secular culture over religious culture in the public life of a community. To the fear that majority culture will so dominate the scene as to exclude minority religions, I would reply that America’s religious diversity seems generally to insure that politicians, unlike judges, soon learn at the polls a hard lesson in tolerance if they offend. Besides, the Free Exercise provision would not be touched by this amendment, but, arguably, would be reinforced.

The second substantive clause in the draft, allowing expenditure of public money for the general welfare through religious institutions, has the immediate purpose of insuring room for the sort of experimentation in the provision of charitable social services that Speaker Gingrich suggests, not to mention forestalling judicial interference with serious programs of school choice. The further intention is to acknowledge that the modern crisis concerning religious establishment arose coevally with the welfare state, which itself was a response, perhaps misguided, to economic modernization. As government came to absorb increasing wealth through income taxation and to hold itself responsible for keeping people fed, schooled, and housed, it crowded out the earlier providers of charitable services, most especially churches. Even if Republicans succeed in their most radical ambitions of dismantling the welfare state, some of its parts, for example federal old-age insurance, are apt to remain, and it is always good to hedge against the sure bet that sooner or later public policies will change. Again, the point is not to remove the ban on government paying priests to say mass or ministers to preach revivals, but to allow the full participation of churches and church-sponsored institutions in the charitable and intellectual life of the community in an age when government resources tend to dominate the field.

The third clause, reaffirming the right to speak and act from religious motives in the public square, must seem the strangest. The free speech and press clause of the first Amendment and indeed the whole character of democratic politics would seem already to guarantee this, and unlike school prayer and parochial aid this right has not obviously or not often fallen before a majority of the Supreme Court. I include it because a ban on religious principle in public action-achieved indirectly by voiding legislation advocated by its proponents on religious grounds-seems to me the logical next step of the secularists, already foreshadowed: certain opinions in abortion cases have suggested that restrictions on abortion, because they originate in tenets of religious faith, cannot be enacted into law without running afoul of the Establishment Clause; in Wallace v. Jaffree (1985) the Court threw out a state statute mandating a moment of silence at the beginning of the school day because a few state legislators had been imprudent enough to suggest that students might use the time to pray; and in cases concerning state restrictions on the teaching of biological evolution, the religious origin of the contrary opinion proved to be the statutes’ fatal flaw. The issue here is precisely the “naked public square,” and the responsibility of seeing it decently clothed. As America will impose on no one a constitutional faith, so its Constitution should be such as can be embraced in good conscience by servants of the Lord.

Let me close by considering briefly a few objections that might be raised to a prayer amendment or to the version I propose. To the claim that the First Amendment ought not to be disturbed, I reply, in the spirit of John Locke’s account of the right of revolution, that the disturbance has already occurred in the form of a generation or two of judicial decisions that upset the original and long-standing arrangement concerning the place of religion in public life. The frankly restorative form of the version here recommended would remedy the ill without revising the Founding principle.

To the claim that a prayer amendment has no chance of succeeding but is merely an exercise in symbolic politics, I would reply that the surprising changes signaled by elections in both 1992 and 1994 ought to make anyone hesitate to speak with certainty about what the electorate will and will not do. Passage of such an amendment would certainly be difficult, but the hard work of building a successful coalition would have its own reward, because it will require a coming together not only of Protestants, Catholics, and Jews, but also of whites and blacks-many recent incidents in the press concerning school prayer have involved the latter-especially in the South, and no one needs to be told how historic that would be.

An objection I can imagine from readers of this journal would be to wonder why the forces of conservatism should expend their limited resources on a school prayer amendment, even in expanded form, rather than mobilize to withstand the threats in the burgeoning abortion and euthanasia culture that seem so much more immediate and real. Here I am tempted to plead realism: public opinion seems stalled at a more or less even divide on abortion, and, barring actuarial surprise, the Supreme Court seems fixed in its favor for at least another decade. But perhaps, since success for the pro-life cause looks increasingly as though it will depend upon the conversion of hearts rather than on political acumen and current electoral strength, it is providential that the question of prayer should come first. For if a prayer amendment could, in the process of its enactment and in its effect, restore the original American understanding of the place of religion in republican life, I am confident that a people who have rediscovered how to see the hand of the Almighty in their daily lives will soon come around to seeing life itself as God’s gift.

James R. Stoner, Jr. is Associate Professor of Political Science at Louisiana State University.