The controversy of school prayer and religion in public institutions is an exercise in common sense and law, not ideology.
Disregarding our history and prejudices, the above question does not pass the common sense test unless there is some bad element in religion that should cause parents to shield their children from it. Although this may be a hidden agenda of some advocates for separation, it is not the argument used for justifying the prohibitions on religion.
This statement superficially fails the test of both logic and law. If religion is given special protection, it should not be singularly restricted.
The founders of our country did not desire that religion be banned from classrooms, yet ostensibly the best legal minds in the land have done that on the basis of the nation's founding law.
The First Amendment prohibited Congress from passing any law "respecting an establishment of religion" or "prohibiting the free exercise thereof.". This prevented the United States from establishing a national religion and guaranteed freedom of religion for the States and people.
The Tenth Amendment, one of the ten amendments of the Bill of Rights, gave the "powers not delegated to the United States by the Constitution" to "the States respectively, or to the people".
The First and Tenth Amendments provided the States an unlimited religious freedom, and this continued for many years.
The Fourteenth Amendment handed First Amendment rights to former slaves, by recognizing persons as citizens of both the United States and their State, and disallowing States from passing any law "which shall abridge the privileges or immunities of citizens of the United States", nor depriving persons of "life, liberty, or property" without "due process" or "equal protection"
A 1943 Supreme Court decision applied the Fourteenth Amendment to the First Amendment Establishment Clause. In 1947 a Supreme Court decision (Everson v. Board of Education of Ewing TP), citing the earlier case, inserted the word "State" in place of "Congress", redefining the law.
It read: "..a state 'shall make no law respecting an establishment of religion...' "
If there is a valid legal explanation for the verbatim substitution, the resultant was neither the intent of First Amendment nor Fourteenth Amendment authors. The Supreme Court effectively usurped the authority of the people by writing new law prohibiting the free exercise of religion, something that is expressly forbidden of Congress by the Constitution.
To demonstrate the problems created by a simplistic interpretation of the Fourteenth Amendment, the same logic might be applied to the Tenth Amendment in the Bill of Rights.
An exercise in substitution effectively renders state laws unenforceable, granting the people a constitutional right to be free from government. Powers not delegated to the United States will be privileges reserved to the People, not the States, even those powers delegated to the States, because the powers not delegated to the United States will be privileges or immunities granted to the people.
The ludicrous example is little different from Court interpretation of the Establishment Clause, which has followed a path of similar absurdity, the Court ultimately equating a student at a graduation ceremony with Congress, and his verbalized prayer as the establishing of religion by government.
The Fourteenth Amendment extended the protections given to persons, by the Constitution, to the States, granting them unrestricted safeguards for the free exercise and other rights. This was the intent of the Fourteenth Amendment. At that time, persons were free from United States religion, but not States' religion, just as they were immune from restrictive federal but not State law concerning speech and other constitutional rights.. The Fourteenth amendment disallowed States from passing a law abridging the rights granted to United States citizens.
The prohibition on Congress from making any law establishing religion cannot be directly applied to the States, because a law, in and of itself, will not abridge the privileges and immunities of citizens, and the States, unlike Congress, are not expressly forbidden from establishing religion.
A yet to be written law cannot be declared unconstitutional, but the Court does
exactly that with a precondition that the States cannot establish religion,
because the prohibition must be derived from supposition that a law
establishing religion will abridge citizen privileges and immunities..
A student's reciting of a prayer in a public school is not unconstitutional if
it does not abridge other's right to free exercise, even if the Court chooses
to regard it as the establishing of religion by government, because the
establishing of religion by government (Congress excepted) can only be
unconstitutional when it infringes on "the privileges and immunities" of
citizens.
This can be better clarified by examining freedom of
speech, which is similarly protected by the First and Fourteenth amendments.
It is not unlawful for States to pass a
law restricting speech, but citizens can challenge it's lawfulness
when it infringes on their rights. Congress, however, may not pass such a
law because the Constitution expressly forbids it.. Even though the
outcome will be the same, it is an important distinction of law because the
latter can be challenged on it's face, but the former only when citizens rights
are violated. Applying it to religious freedom, the Court
cannot consider the Establishment Clause as a justification for
overturning a law that was not passed by Congress, and the outcome is not the
same, because an establishing of religion, unlike a restricting of speech,
is not a violation of citizen's rights. A court must consider only the effect of
established religion, and therefore, a State law cannot be declared invalid on
the basis that it is an establishing of religion.
The Founding Fathers did not simply forget to include the states when they
placed restrictions on Congress. In contrast to other rights protected by the
First Amendment, citizens practice their free exercise by way of
the public institutions that they fund and manage, through their elected
representatives. Prohibiting Congress from interfering with religion gave to the
states a greater freedom of religion, but to prohibit religion from the states bans it
from the public's daily lives. First and Fourteenth Amendment authors did not
ban religion from public institutions and citizens daily lives.
Slavery would still be legal with just Fourteenth Amendment protection,
but slaves would be free. Slavery was eliminated clearly and directly by the
Thirteenth Amendment: "Neither slavery nor involuntary servitude ... shall exist
within the United States, or any place subject to their jurisdiction.", and the
Fourteenth Amendment, passed a few months later, gave them freedom in their
State of residence. If citizens had
wanted a removal of religion from their daily lives, they would have written it
into the Constitution.
Even if the States were disallowed from passing laws establishing a religion, citizens should be free to openly verbalize their religious beliefs without fear of state interference, because the Constitution grants these rights generously to all citizens.
The argument that the mere hearing a religious message from another student, or even a teacher or principal, may prevent the free exercise of a non-believer or another faith is not valid. People habitually find many things to be offensive. What if, for instance, the President of the United States accepted an invitation to speak at a commencement ceremony. Graduates of a different political party may decide that their right to freedom of belief has been violated because the President's politically slanted speech amounts to a government endorsement of a political party, which is unlawful. What if a corporate businessman were asked to speak, but some students were anti-capitalist?
If a Marxist were invited and honored at graduation ceremonies and Christian students complained, would the Court offer them the same protections given to their adversaries? No, because Marxism is not protected by the Constitution.
How ever one attempts to apply the Fourteenth Amendment to the Establishment Clause, it is not difficult to see not just the inherent unfairness in current law, but also that Court interpretation of the Establishment Cause has accomplished exactly the opposite of it's intent..
Religions of past eras were the governments, and any political or social ideology is a religion by the broader dictionary definition, be it Communism, Capitalism; even Philosophy and Psychology. That only religions professing a belief in God are banned from public institutions, is a violation of Freedom of Speech and Equal Protection. That just religion is barred precisely because it is given protected status from federal interference, is an absurdity.
The protection of tax exemption for churches is equally available to charitable, educational, literary and scientific organizations. The court has not barred the ideas and practices of NOW, the NAACP or PUSH from publicly funded institutions because they are tax exempt.
The arguments directed against religion are applicable to any organization espousing ideas and social rules and values, even those that are not tax-exempt:: Tax money is used for furthering beliefs that some taxpayers may not approve of, the presenting of those beliefs might be construed as a policy of the government, and citizens could be unduly influenced by ideas that they would otherwise find unacceptable.
The only equitable solution would be the banning of all beliefs from public institutions, or the elimination of public entities. Otherwise, students and citizens will be subjected to a variety of ideas and thoughts, some of which they are not in agreement with.
The absurdity of the Court's argument for prohibiting religion in public institutions is apparent on it's face. Advocates of the free expression of thought must join with the religious believers who are denied their equal protections and right to free speech and religion. This is not an issue of ideology, but purely common sense and law.
-States Liberty Party, July 3, 2002
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The Establishment Clause prohibits citizens rights, and is not a Fourteenth Amendment protection.