By Jay Wexler
Professor of Law, Boston University
Readers of On Faith are likely familiar with the Pensacola prayer hullabaloo that has been going on for the past week. In January, a federal district court, responding to a pattern of first amendment violations, ordered officials at Pace High School to refrain from leading prayers at school functions. Shortly thereafter, the principal asked the athletic director to say a prayer before a meal at a luncheon honoring contributors to a new school athletic facility. That sent the case back to court, but the judge found the principal and athletic director not guilty (on a technicality) of violating her original order.
One curious piece of the whole Pensacola affair that might easily be missed is the letter sent to the two accused school officials by over 60 members of Congress, who suggested that the Pensacola government’s actions might somehow be justified by the fact that the House of Representatives has long employed a chaplain who offers a daily prayer before the beginning of its sessions.
The letter concludes that the “tradition of offering prayer in America has become so interwoven into our nation’s spiritual heritage, that to charge someone criminally for engaging in such an innocent practice would astonish the men who founded this country on religious liberty.”
It is indeed remarkable that, in a country founded on principles of church-state separation, both houses of our national legislature start every day off with a prayer, sometimes to Jesus. If, like me, you find this bizarre (or at least interesting), you should check out the Web site of the House Chaplain. There you can find the day’s opening prayer, a prayer archive, the “Thought of the Day,” and a schedule for Bible studies and other religious activities. You can learn, for example, that the topic of the staff Bible study on the day of the Pensacola hearing was “Are the Ten Commandments Still Relevant?” (it met in Room H2-637 Ford, from 12-1 pm).
The Senate Chaplain does not provide as much public information as the House Chaplain. When I was researching my recent church/state road trip book, however, I spent a week in Washington D.C. where I watched the Senate’s daily prayer and talked at length with the Senate Chaplain Barry Black. Though I had expected the daily prayer to be kind of a bland and lifeless affair (these prayers sometimes ask for things like giving the Senators “a new delight for matters of drudgery” and a “zest for unfinished details”) I actually found Chaplain Black’s prayers to be quite powerful. The Chaplain himself is incredibly learned and charismatic.
But the existence of the congressional Chaplains lends no support to the constitutionality or appropriateness of school prayer. For one thing, the Supreme Court’s decision upholding legislative prayer, Marsh v. Chambers, rests almost entirely on the unique history of the practice of legislative prayer, which predated the First Amendment itself. Public schools, by contrast, didn’t even exist in the United States until long after the First Amendment was ratified. More important, though, legislative chaplains are not responsible for the teaching of students and do not lead prayers where children are present. Public school officials, on the other hand, are trusted with the care and supervision of our children. They have no right to tell those children what they should or should not believe.
To the extent that the decisions of the Supreme Court on legislative prayer and school prayer differ, moreover, it is the Court’s upholding of legislative prayer that is problematic. Why should anyone in the government be able to proclaim through prayer its belief in god (and only ever, by the way, one god, and sometimes explicitly the Christian one) when not everyone in the country shares this belief? It’s for this reason that I think the power of Chaplain Black’s prayers makes them more frightening, from a constitutional perspective, rather than less. But in any event, the fact that Chaplain Black may offer a prayer before a group of Senators says nothing about whether the principal of a school district may offer a prayer before a group of students.
Jay Wexler is Professor of Law at Boston University. His book Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, was published in June by Beacon Press.