I am a huge advocate of free speech. However I also hold the belief, like many others, that free speech does not mean you have an unrestricted license to say what you want. But one thing that is clear is that Courts tend to hammer hard on those who seek to restrict the free speech rights of others – most notably and recently, the Supreme Court of the United States ruling in favor of the Westboro Baptist Church.1
Now as a result of various observations of how hostile the Courts, and most notably the Supreme Court, have been with regard to attacks on free speech, it comes with little surprise that those on the religious right are attempting to assert free speech rights, but not technically with regard to speech.
Those on the religious right are trying to escape the Establishment Clause by rebranding prayer under the Free Speech Clause. The First Amendment states simply:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Recall that the First Amendment is applied to the States by way of the Fourteenth Amendment. This is called the incorporation doctrine.2
The typical scenario with regard to public schools involves a student who, over a PA system at a public school, recites a prayer, either with the support of the school administration or completely against any restrictions the school attempts to make, if any restrictions are made at all. In the eyes of religious conservatives, the former is the school "abiding" by the Constitution (despite decades of jurisprudence to the contrary) or going with the will of the people, and the latter is a "brave" student attempting to assert their rights against the tyranny of the school and atheists trying to take away their religious rights.
I will say this up front: prayer is a form of speech because it is a form of expression. Free speech means not just the ability to speak with words, but the ability to express yourself through any medium you select, be it art, music, or a comedy show, and in any language you select, be it English, Spanish, Esperanto, Elfish, Klingon or Pig Latin. Religious expression is expression, therefore it can also be reasonably called speech. But… (insert long, dramatic pause) as the First Amendment separates religious expression and free speech in its text, the two are to be treated separately in matters of law.
Getting to the Constitution, what does this scenario fall under? Is it the free speech doctrine, the Establishment Clause, or the Free Exercise Clause?
Free Exercise Clause
The conservative blog The Right Scoop attempted to make this argument with regard to Laci Rae Mattice, calling her a "brave senior" (emphasis theirs):3
The Constitution clearly restricts the making of laws in order to establish religion or to prohibit the free exercise of religion. A prayer said by a senior, listed on a graduation event program is nothing short of the free exercise of religion and has nothing to do with the creation of any law. End of story.
As I explained in my previous article, the First Amendment restricts Congress from doing more than just attempting to establish a religion. It restricts Congress from affecting the establishments of religion, meaning the foundations and principles of religion itself. The Free Exercise Clause means that the free exercise of religion cannot be restricted by Congress. The incorporation doctrine applies the same restrictions on the States.
Unfortunately the Right Scoop is 100% wrong for several reasons.
One thing that seems to escape a lot of people is the simple fact that public schools are government-owned. Speaking about a meeting she attended – if you can call it that – 15 year-old atheist public high school student Jessica Ahlquist had this to say about one of the speakers:4
Next, a priest named Roman Manchester stood up to speak and looked down at me with a smirk while he spewed some incoherent nonsense about government owned schools in Russia and how "honey, we don’t want that."
Public schools are established by an official act of the government. All public schools, including public colleges and universities, are government-established, meaning they are also government-owned. Plain and simple. Being government owned and government operated, public schools are just as enjoined as the legislature when it comes to matters of religion, and are further enjoined to only specific things by the legislature that created it.
This same injunction restricts schools from respecting the establishments of not only Christianity, but also Judaism, Islam, Wicca, Paganism, Druidism, Pastafarianism, and any other religion out there. A pastafarian can no more provide an invocation thanking the Flying Spaghetti Monster than can a Jew or Christian provide an invocation thanking God.
Public schools are also enjoined by other items in the Constitution that trickle down to the States as recognized liberties protected by the Fourteenth Amendment. Many atheists have said that this includes the provision of Article VI of the Constitution that forbids religious tests for public office:
but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.
The Supreme Court of the United States in Torcaso v. Watkins, 367 US 488 (1961), instead applied the Free Exercise Clause:
We repeat and again reaffirm that neither a State nor the Federal Government can constitutionally force a person "to profess a belief or disbelief in any religion."5
This means that, under the Free Exercise Clause, public schools cannot require teachers, administrators and students to profess or deny any particular religious belief. "Free exercise" means that a person cannot be compelled at any time to profess a particular belief, regardless of whether the person in question holds that belief or not. The person is instead free to profess it at any time of their choosing without compulsion, within other limitations that are beyond the scope of this article. This limitation also means that the schools cannot compel students to exercise any particular religious belief against their will, such as with the recitation of an official school prayer plus a few Bible verses, so said the Supreme Court in the case Abington School District v. Schempp, 374 US 203 (1963), reaffirming the above quoted statement from Torcaso.
Let me also make this clear: private schools, such as schools established by the Catholic Church, are not enjoined by the First Amendment in the way public schools are enjoined. There is a clear distinction between public and private schools that must be kept in mind. Public schools are enjoined by the Constitution in more ways than private schools by way of their government establishment from which they cannot be divorced.
A public school is as much a government agency as the local police department. Period.
As the schools are government owned, any platform for speech provided by the school is a government-provided platform. Any person who speaks on that platform is selected by the school, and so the school can exercise some control over what that person can and cannot say.
And the school is enjoined by applicable laws, including the Constitution, in what they may allow a person to say.
Many don’t realize this, as well, but schools already do censor speech when it comes to speeches given at official school functions. With many functions, appointed speakers must compose and submit in advance the speech they will give to have it reviewed and approved by the school. For example, a student who holds white supremacy views will likely not be able to state those views on the government-provided platform, and if said student were to attempt to do so, that student would would likely be removed and reprimanded.
Now the speaker may deviate from their speech, and a creative or entertaining speaker may actually do so, but they’re not given a very wide berth.
And opening your speech by joining everyone in one mass recitation of the Lord’s prayer, such as with the recent antics of Laci Rae Mattice, requires such a wide berth, and it is a wide berth that a public school cannot give, so says the Supreme Court in the case Santa Fe Independent School District v. Doe, 530 US 290 (2000):
The delivery of a message such as the invocation here-on school property, at school-sponsored events, over the school’s public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer-is not properly characterized as "private" speech.
A speaker at an official school function or school-sponsored event, be it a graduation or football game, that speaks over the school’s public address system, is doing so at the school’s discretion. As the school is enjoined by the Constitution, so is the student when speaking at a school function.
Free Exercise Clause, revisited
As student speakers at public school functions inherit the same injunctions that apply to the school, the student speaker cannot make any kind of religious expression upon the school-provided, school-sanctioned platform without the school’s permission. As the school cannot provide such permission, because it is enjoined by the Constitution from doing so, the student inherits the injunction of the First Amendment.
Let us now turn to the Free Speech doctrine of the First Amendment.
The Jeremiah Project is a Christian web site run by Vic Bilson with a clear Christian objective and purpose:
This Jeremiah Project web site is my response to the situation in America today, a "famine in our land of hearing the words of the Lord" – Amos 8:11
In these pages we will look at the world today from a distinctively Christian worldview. I won’t "tickle your ears" but rather proclaim the sometimes hard truth that America so desperately needs to hear.
Looking through much of the web site, Vic uses his private platform of speech to spread some conspiratorial arguments that include the New World Order and the Illuminati. Interspersed within are hundreds of Bible quotes as well. On his web site, he also provides "examples of the courts and local authorities stifling free speech", all of which are examples of how the proliferation of religious expression by State and local governments have been restricted by the Courts under the incorporation doctrine.
Now this person obviously is not representative of the entirety of Christianity. To say so would be embellishing things to an extreme degree. However it would also be an embellishment to say he is alone in trying to apply the free speech provision of the First Amendment to prayer. Last year, the Greenwood, Indiana, school district attempted to do the same:6
A central Indiana school district argues that prohibiting a planned graduation ceremony prayer because of a federal lawsuit filed by the top-ranked senior would violate students’ free speech rights.
And I’m confident there are others who have attempted to assert the same. In fact I’ll be providing a very recent argument in just a little bit.
Basically the argument is that by not allowing a student to recite a prayer in front of a student body at a public school, or join that student body into a prayer, that student’s right to free speech is being restricted. Except one thing they seem to be overlooking is that there is a big difference between saying this:
And I thank God every day for the blessings I have and the strength He has given me to get through the toughest times in my life…
God, thank you for the blessings in my life…
The former is speaking of faith, the second is expressing it. The former is permitted in a speech before a student body, and atheist students won’t try to say it’s a prayer because it clearly is not. The former is saying that God is thanked every day, and it may generate a few "Amen!"s from the audience, while the latter tries to join everyone in actively thanking God – do you really think a student body that is very, very likely to be close to entirely Christian is going to just let the speaker say a prayer by him or herself? The former speaks of God, while the latter speaks to God.
As such the former will fall under free speech, but the latter falls under the Establishment Clause and Free Expression Clause.
That is the difference between speech and religious expression. Few atheists will attempt to stop a person from speaking about their religion, even at a public school. However once you start not only trying to exercise your religion, but joining everyone else in the exercise, that is where you’ve crossed from free speech to religious expression.
Some would have you believe that there is a fine line between the two, between free speech and religious expression, one that is easily blurred. This is not the case. The line is quite well-defined.
All we ask
Let’s visit a question that few have actually bothered to ask: what happens when a person is told they cannot use a particular platform for religious expression, yet it happens anyway?
Well there’s not much that can be done, and the pious know it. Laci Mattice knew it when she forced a prayer upon a student body – the fact they willingly joined in is immaterial. It is an unfortunate aspect of this whole thing, which is why when an atheist does press the issue of a prayer being said in a venue or upon a platform where it has been deemed illegal and unconstitutional time and again, all we are asking is that you respect the laws to which we are all subject.
Why does that always seem like a tall order?
Respecting the law does mean that there are things you cannot do, even if they are things you really want to do. For example, college students can respect the law by not purchasing, possessing, and consuming alcohol until they reach the age of 21. Yet what happens every weekend during the academic semester on college campuses and in college towns? Underage college students and their enablers are arrested or issued citations for underage possession of alcohol. And those not respecting the law complain about getting busted for breaking the law when they know they are breaking the law.
Well there’s a simple answer: respect and obey the law. Again why does that seem like a foreign concept to people?
It is one thing to complain about a law while still obeying it, but you look like a jackass complaining about a law while you are breaking it or being prosecuted for breaking it, especially if you know you’re breaking the law and your complaints about the law are being directed toward the court of public opinion instead of the court of competent jurisdiction that is trying your case.
Further, where an action or law and the constitution are in conflict, the constitution prevails. Always.
Yet that also seems like a foreign concept as well.
Oh wait, no that’s not the foreign concept. The foreign concept is the idea that there are times where the majority does not prevail. Yet that is the exact reason we have a Constitution and Courts and judges sworn to uphold and defend the Constitution: to ensure that the majority does not prevail in areas where they are trying to trample over a minority. The United States is not a democracy. The United States is a republic. There is a big difference between the two, and if you are not aware of the differences, I invite you to educate yourself on those differences.
In the analysis of this we turn to Medina Valley Independent School District in Western Texas.
Schultz v. Medina Valley Independent School District
On June 1, 2011, the United States District Court for the Western District of Texas granted Christa and Danny Schultz an injunction against Medina Valley in the form of a restraining order enjoining the school district from permitting what could be perceived as student-led prayer from occurring during the upcoming high school graduation ceremony. Citing the jurisprudence cited in this article and much beyond, Chief Judge Samuel Fred Biery ordered specifically that (quoting directly from the order):
- The District shall remove the terms "invocation" and "benediction" from the program of ceremonies for the graduation exercises. Those terms shall be replaced with "opening remarks" and "closing remarks."
- The District, through its officials, shall instruct the students previously selected to deliver the "invocation" and "benediction" to modify their remarks to be statements of their own beliefs as opposed to leading the audience in prayer. These students, and all other persons selected to speak during the graduation ceremony, shall be instructed not to present a prayer, to wit, they shall be instructed that they may not ask audience members to "stand", "join in prayer", or "bow their heads," they may not end their remarks with "amen" or "in [a deity’s name] we pray," and they shall not otherwise deliver a message that would commonly be understood to be a prayer, nor use the word "prayer." The students may in stating their own personal beliefs speak through conduct such as kneeling to face Mecca, the wearing of a yarmulke or hijab or making the sign of the cross.
- The District, through its officials, shall review, and make any necessary changes to, the students’ revised remarks to ensure that those remarks comply with this Order, and shall instruct the students that they must not deviate from the approved remarks in making their presentations.
In other words, those that have been selected by the school to speak during the graduation ceremony may not use that government-provided platform to make a prayer and/or join the audience in making prayer to a specific deity. That was the order.
Needless to say a lot of the press very, very much misrepresented the Court order, which is not surprising. I never trust what the press says in regard to anything coming out of a Court except for whether a particular defendant was found guilty or not guilty. In regard to court orders and decisions, I always seek the original, and you should as well. You’ll find that the press does misrepresent and overstate Court orders… well almost all the time.
Many took the specifics provided by the Judge in the second point to mean specific words that the students may not speak. In general that is true, as the specifics provided are words that are generally associated with prayer. It is not uncommon for a judge to make a general order ("These students…shall be instructed not to present a prayer") and then follow up with specifics to ensure the order is properly understood and executed. The Court was not attempting to restrict the content of the speech and the students could, as I stated earlier by example, speak of their faith, speak of their deity instead of speaking to their deity.
In vacating this order, the United States Court of Appeals for the Fifth Circuit cited two reasons:
- that they "we are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school-sponsored."
- "plaintiffs’ motion may be rooted at least in part in circumstances that no longer exist. For example, the school has apparently abandoned including the words "invocation" and "benediction" on the program."
Now this only vacates the temporary restraining order that is typically requested prior to an actual trial. This matter is not settled, and the actual trial of facts and merits still awaits the District Court. Personally I do not see the school district prevailing. They have decades of jurisprudence working against them.
The case number in the United States District Court for the Western District of Texas is SA-11-CA-422-FB.
I’ve never seen such a restriction on speech issued by a court or the government. It seems like a trampling of the First Amendment rather than protecting the First Amendment.
That’s right, he calls the Court’s order that students may not lead an audience in prayer a restriction on speech. Again, prayer falls under the Establishment Clause and Free Exercise Clause of the First Amendment, not the Free Speech clause.
Leading audiences in prayer during public school functions has repeatedly been deemed unconstitutional, yet every time such a ruling is handed down, the religious right treat it as a new attempt, as the Texas Attorney General put it, "by atheists and agnostics to use courts to eliminate from the public landscape any and all references to God whatsoever".
Let me put it this way: atheists and agnostics don’t mind God being in the public landscape. If we did, we’d be campaigning to get all churches and other religious buildings torn down – which would be a shame as architecture has always been one of Christianity’s highlights, in my opinion. Plus there’s what appears to be a beautiful synagogue on Grand Avenue in Des Moines, Iowa, that I think would create a loss for that area if it were torn down or otherwise destroyed. So let me make this clear.
Practice your religion all you want. Just don’t use the arm of the government to build you a platform by which you may exercise your religion. And don’t use any platform provided by the government to exercise your religion either. If you try to do so, we will object.
But bear in mind, too, that agnostics and atheists are not the only ones objecting to attempts by the religious to use a government-provided platform to express and exercise their religion. Remember that with the case Santa Fe Independent School District v. Doe, two families are represented by the moniker Doe: one Mormon, the other Catholic.
All we are trying to do is stop the expression of one religious belief on a government-provided platform by government-appointed speakers, nothing more. In other words, all we ask is that you obey the law. Why does that seem like a foreign concept?
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Citations and references
- Snyder v. Phelps, No. 09-751, 562 U. S. ___ (2011) [↩]
- Incorporation of the Bill of Rights. (2011, May 25). In Wikipedia, The Free Encyclopedia. [↩]
- "Brave senior led prayer at school graduation despite ACLU". Posted May 23, 2011, at the blog "The Right Scoop". [↩]
- "A Quick History", posted May 21, 2011, by Jessica Ahlquist on her blog. [↩]
- Torcaso v. Watkins, 367 US 488 at 495 [↩]
- Associated Press. (2010, April 23). "Greenwood schools call graduation prayer free speech". [↩]
- Kapitan, Craig. (2011, June 4). "Medina Valley graduates hear prayers aplenty". San Antonio Express-News. [↩]
- Starnes, Todd. (2011, June 2). "Federal Judge Prohibits Prayer at Texas Graduation Ceremony". FoxNews.com [↩]