The Inherent Tension in Law and Religion (by William H. Floyd)

March 30, 2012 By 7 Comments

Photo by Katherine Frey/ The Washington Post

This post is written in conjunction with the “Religion and Law in the U.S.” course dialogue project and is directed by Grace Yia-Hei Kao.

There’s an old saw about prayer in schools which seems to have originated among liberal politicians in the 1980s: As long as there are final exams, there will be prayer in schools.  Apart from its sly attempt at humor, the line also reveals distinct understandings about prayer.  The form of prayer brought on by exams is an individual one, even though most “school prayer” is actually in the form of a group prayer. While the quip about final exams might be a good sound bite, it describes a form of “school prayer” which has never been in question by the courts.

In almost every Supreme Court decision that dealt with school prayer, the prayer at issue was a group prayer performed by a school official.  In the landmark case of Engel v. Vitale 370 US 421 (1962), the court ruled teacher led prayer, which began the school day in New Hyde Park, NY, as violating the First Amendment’s establishment clause.  This proscription was extended to clergy led prayers at public high school graduation ceremonies in Lee v. Weisman 505 US 577 (1992). Student led prayers before high school football games were declared unconstitutional in Santa Fe Independent School District v. Doe 530 US 290 (2000).

None of those cases were unanimous, and it would be wrong to assume that there was broad consensus that these prayers are unconstitutional.  More importantly, the ultimate ruling is beside the point I am trying to make.  What’s striking is that the only form of prayer in schools that the Courts can consider in any meaningful way is group prayer.  It seems obvious that a good reason for this is the fact that a governmental prohibition on individual prayer would be a violation of the First Amendment’s free exercise clause.  Another explanation for the court’s exclusive examination of group prayers, though, is that the court is actually attempting to avoid making religious and theological pronouncements.

Religious arguments and legal arguments for prayer in school are inherently different, but what is most remarkable is the fact that the two arguments are not even operating under the same premises.  The legal arguments around school prayer boil down to whether or not students are “forced to pray,” who leads the prayer, and where the prayers are located.  When content is discussed, it is more about whether or not the prayer is “nondenominational” or not, and such arguments have essentially been relegated from the main discussion.  The legal arguments are really about the mechanics of government approaches to religion, which must be concerned with neutrality and minutia.

None of this is how the religious ever actually talk about prayer.  Prayer can be seen as communion with the divine, a plea for help, or even just a token of thanks.  Even prayers which are highly systematized and ordered, such as the Catholic rosary, are focused on the believer’s access to particular mysteries.  The regular group prayers of Mosques are public prayers, but for Muslims they are a way to serve God.  For a religious person, prayer is a matter of accessing the divine for any number of reasons.

This dichotomy between the Judicial approach to prayer in schools and the religious conversation about prayers reveals something quite important regarding case law on religion.  The United States Judicial System is 1) forbidden to establish religion, and 2) built around secular, Western ideas of the role of government.  The courts would never want to decree theological judgments or stake out religious values.  While historically courts have shown religious prejudice at times (see Everson v. Board of Education 330 US 1 (1947)), they also have consistently sought to leave religion as a matter of individual conscience.

In other words, the courts rarely talk about religion even when deciding religion cases.  Reynolds v. United States 98 US 145 (1878) is superficially about the legality of Mormon polygamy, but the opinion by Chief Justice Morrison Waite mostly discusses the validity and boundaries of laws.  Everson v. Board of Education officially is about whether government money can be given to parents of parochial schoolchildren for transportation.  The justices mostly discuss taxation.  The Church of Lukumi Bablu Aye v. City of Hialeah 508 US 520 (1993) is a case concerning laws prohibiting Santeria slaughter of animals, yet the court mostly deals with the ramifications of a law which targets a specific group of people.

This avoidance of discussing religion directly might actually be beneficial for the courts.  The backlash to school prayer decisions is probably enough evidence to show that when the courts affect religion in any way, someone will be upset.  The dichotomy between the legal and religious approach to issues regarding law and religion, though, means that there will always be two conversations on every issue.

William H. Floyd is a second year MA student with interests in American religion at Claremont School of Theology.

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  • Valentina

    Thank you for your post. As we have been reading our cases, I have found it most intriguing to see how the courts dance around issues of religion with finesse and on tip toes. Most times as I am reading half way through the cases expecting to see holdings and reasonings exclusively on the establishment clause or free exercise, I will read something completely unrelated to the law, as you mention above such as taxation, discrmination or state versus federal laws. The ability for the courts to take matters that may sit on such large constitutional issues such as the freedom of religion clauses, and invoke other areas of law that are less heavy and cumbersome is remarkable, spooky, and yet mystifying.

  • Drew Baker

    Thanks for this post, Will. It is very thought provoking. I think your charitable assessment that the Supreme Court typically tries to “avoid making religious and theological pronouncements” is correct in most cases. You are also right that the court seems to address difficult religion cases in other terms if it can. Many cases that could have easily been about “Free Expression,” for instance become “Free Speech” cases. However, I wonder if the Supreme Court is ever truly successful in achieving this goal. While Reynolds was about the general applicability of laws (as you suggest), I think it would be a mistake to discard the rhetoric in the decision as inconsequential to the case; regardless of what you think of the actual decision itself, the rhetoric of Reynolds was just as (if not even more so) anti-Mormon as Everson was anti-Catholic (as you note). In fact, many of the cases that courts try to avoid questions of religion entirely end up revealing more about religion in America than the cases that explicitly address religion. Consider the case about the haunted house that I discussed in my blog post below; the court of appeals attempted to avoid religion, but ended up saying a lot about religion in its discussion of what it took to be “superstition” rather than religion. Perhaps the courts respecting personal, private prayer (and disallowing group prayer) is not just a matter of attempting to respect “religion” as much as possible; perhaps it is also about supporting one kind of “religion” over against other kinds of “religion.” If this is true, even the absence of the courts “discussing religion” will “upset” some people. Of course, the judiciary cannot please everyone. However, the courts can recognize their (inevitable whether they like it or not) role and responsibility in shaping religion in the U.S.

  • Katie Kubitskey

    Thanks for the post! As you have mentioned, the Court tends to leave the case of “religion” to the individual conscience, shying away from ever needs to define it or make it a matter of the state. However, what about the cases we saw this week in class (the infamous Ten Commandments cases) where the courthouses saw no problem addressing and possibly endorsing a certain religious past/influence upon the present legal body? Following what Drew said, of course, the Court should not expect to please everyone, but in a case where their intent to endorse religion is clear, should an acknowledgment of this bias be made clear? It would be interesting to see if the legal conversations surrounding the Establishment Clause (for instance, in rural Kentucky courthouses) are extremely different from greater legal conversations, such as in the Supreme Court, in which a broader range of biases or perspectives are met.

  • Saul Barcelo

    Hey Will, you post is very interesting just like all your comments in class. I think all most of us reading your post would agree with you that the Supreme Court tries to “avoid making religious and theological pronouncements.” In a way, I can’t blame them since religion seems to be so intermingle with American culture. Some groups are still fuming the court’s decision of prohibiting organized prayer in the public schools, since they feel prayer is part of their identity as Americans. In the different cases mention regarding prayer, the issue is not about impending a person’s religious freedom, but about enforcing the Establishment four Court at the cost of sacrificing religion.

  • Bryan Cottle

    Great post Will! I never really thought before about the notion that two conversations are actually going on in these cases, and I can see your argument as being true. However, like Drew mentioned, I also wonder if the courts can ever truly accomplish their goal. As much as the courts try to avoid making religious and theological pronouncements I think they still end up doing just that. Even if the decision is stated in the context of the boundary and validity of law, religious pronouncements are made. I think this comes into context with the interchangeable concepts of religion and secular/societal moral codes. Often religion is associated with morals, or a certain social code. As you mentioned, U.S. courts are built around secular, Western ideas about the role of government. In the case of Reynolds, the court was heavily influenced on secular Western ideas to the extent that polygamy did not fit the secular, cultural, Victorian accepted norms of marriage. A main thrust of the decision was that the U.S. had the right to maintain a certain order of society that was found to be in its best interest. Polygamy was a perceived threat against the social norm or the morals of that society, and thus the court ruled as they did even using historical precedent regarding the founders beliefs’ regarding polygamy. Thus, in the act of trying not to make a religious or theological statement, in fact the Reynolds court subtly did. Polygamy was a moral ill to society that the government deemed important to prevent, even though Mormons practiced it religiously under a belief of biblical precedent. Sometimes even secular Western norms can determine a ruling of what is “religiously,” and I include in that “morally” right. I know this might be a stretch, but secular law and norms can aid in a form of religious pronouncement. And as disclaimer here: I am in no way defending polygamy.

  • Katrina

    Thanks for the post Will. I echo many of the sentiments expressed by our peers above. And, I think you are very much correct in assessing the courts often reluctance to rule on actual religious practices, even as they are ruling on First Amendment cases. I think that this gives a lot of power to the justices, yet as you point out is probably beneficial to the justices. While I think the court can (and sometimes does) get religion wrong, I think it is equally important they they do consider other laws as well, as the first amendment certainly does not exist in a vacuum. -Katrina

  • Grace Yia-Hei Kao

    Will: this is a great post. When I used to teach these various school prayer to college students in a context where many of them found the rulings upsetting, I would always remind them of your first point that it’s incorrect to say that the Supreme Court “banned prayer from schools” – it was only teacher-led prayer. I’d tell them that their right to pray – about whatever, to whomever – remained their right, so long as it was not disruptive (e.g., if I were to call on them in class and they were to consistently say “I can’t answer that question now, I’m praying,” there’d be a problem…”)