This House would prohibit school prayer

The debate concerning the legitimacy of formal prayer in public schools channels two raging currents of American constitutional law - the regulation of education and the protection of religious liberty. The Republic was founded by emigrants from Europe who sought to escape the bondage of laws which compelled their support and attendance at government sponsored churches. Accordingly, the First Amendment of the Constitution of the United States provides inter alia that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”[1]. Thus religious liberty receives the dual protection of the establishment clause, that demands the separation of government and governmental functions from religious doctrine, and the free exercise clause, that precludes government interference with the exercise of religion. On behalf of the Court, Chief Justice Warren in Brown v. Board of Education (‘Brown I’) 347 U.S. 483, 74 S. Ct. 686 held that education is “perhaps the most important function of state and local governments”[2]. It is therefore unsurprising that the Court has consistently struck down school prayer initiated by school officials as a violation of the establishment clause[3]. However, the strictness of scrutiny devoted to apparently innocuous religious practice remains remarkable. The Court has rejected non-denominational prayers as unconstitutional: Engel v. Vitale 370 U.S. 421, 82 S. Ct. 1261[4]. It has also found that non-sectarian prayers violate the establishment clause: Lee v. Weisman 505 U.S. 577, 112 S. Ct. 2649[5]. The Court has struck down an Alabaman law authorizing schools to set aside one minute at the start of each day for meditation or voluntary prayer: Wallace v. Jaffree 42 U.S. 38, 105 S. Ct. 2479[6]. Not even a high school program that empowered the student body to elect a student speaker who would precede varsity football games by delivering a short speech to “solemnize the event” survived the scrutiny of the justices: Santa Fe Independent School District v. Doe 530 U.S. 290, 120 S. Ct. 2266[7]. Given the prevailing jurisprudence, it is remarkably unlikely that public school prayer could be rendered constitutional in the United States at least in the foreseeable future. Nevertheless, no commentator would be advised to dismiss a debate that has captivated the most dynamic constitutional court in the world throughout the past century.

This topic demands consideration of broad social and philosophical themes that include the proper extent to which a school should be paternalist; the separation of church and state; and role of the democratic imperative in education.

Moreover, the circumstances of this debate are not limited to the school and judicial systems of the United States. The European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 also recognises “the right to freedom of thought, conscience and religion” under article 9[8]. In the United Kingdom, the relationship between religious liberty and public education has commonly attracted controversy in the context of faith-based schools whose admission policies are dependent upon proof of religious practice[9]. Many of the arguments canvassed in this debate are cross-applicable to just such a discussion of religious schools.