Free speech and press/Religion/Supreme Court

But it says "Congress shall make no law…"

Posted on by Kenneth Ballard / 0 Comment

The First Amendment to the Constitution of the United States states plainly:

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.

Recently in an article on The Right Scoop, this argument was raised regarding a senior reciting the Lord’s Prayer at a public high school graduation:

The left will not stop its intellectually bankrupt relentless attack on Christianity in America. 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.

Commonly argued by the pious right, many have come to believe that the First Amendment allows States to establish an official religion for that State (except where directly enjoined by their own Constitutions), allows students and school officials to join other students in a mass prayer, and all kinds of other things that have been explicitly denounced by the Supreme Court of the United States.

The Establishment Clause states plainly that Congress shall not make any laws respecting an establishment of religion. Let’s break this down using a dictionary commonly available when the Amendment was drafted [Samuel Johnson’s Dictionary of the English Language, 1785 edition: Volume 1, Volume 2]. Two words in particular need to be documented: respect and establishment. We’ll start with the word "establishment":

Establishment. n.

  1. Settlement; fixed state.
  2. Confirmation of something already done; ratification.
  3. Settled regulation; form; model of a government or family.
  4. Foundation; fundamental principle; settled law.
  5. Allowance; income; salary.
  6. Settled or final rest.

One thing that should be clear is that when the First Amendment says "respecting an establishment", it isn’t talking about the act of establishing. Definition 4 from above is what applies here. Establishment is another word for foundation or fundamental principle. Congress shall make no law respecting the foundations and principles of religion. Not any particular religion in general either, but all religion.

Now what does it mean with regard to "respecting an establishment"? Well Dr Johnson’s dictionary has a definition for "respect", but it has a more specific definition for the verb state of that word:

To Respect. v.

  1. To regard; to have regard to.
  2. To consider with a lower degree of reverence.
  3. To have relation to: as, the allusion respects an ancient custom.
  4. To look toward.

So to respect something is to show regard or consideration for it. With regard to the First Amendment regarding Congress’ prohibition on making laws "respecting an establishment of religion", the Constitution is prohibiting Congress from making laws that have regard for the foundations and principles of all religion. Sounds to me like the Constitution is prohibiting Congress from touching religion at all. But why Congress? Does this mean that the Executive Branch is not so enjoined?

Why Congress?

Why is the Amendment addressed at Congress? There is a simple, straightforward answer and it has to do with how the powers of the Federal government were to be exercised.

In looking at the Constitution, you will notice that Article I discusses the legislative branch of the Federal government, and that it is the longest article of the Constitution, even longer, I believe, than any single amendment. Yet if you look at the Federal government, the Executive Branch is by far the largest branch of the Federal government. Congress is actually the smallest, with the judiciary coming in a distant second.

With the Constitution all powers of the Federal government were to originate with Congress. Article I, Section 8 specifically spells out 17 enumerated powers and designates them to Congress. In short these powers are actually categories of permissions that Congress can grant to the Executive Branch by way of legislation. The way our government is supposed to work is that Congress decides what the President (by way of his many departments) shall do, and the President does it (after making an evaluation on whether the law is constitutional).

If Congress doesn’t say "yes", then the Executive Branch cannot do something. However Article I, Section 8 and the Amendments restrict and specifically lay out toward what Congress may say "yes", and with a few things, such as those in the First Amendment, specifically denies Congress the ability to say "yes".

But the First Amendment doesn’t apply to the States

Aside from the States that have provisions in their own Constitutions mirroring that of the Bill of Rights, how is it that an Amendment that says "Congress shall make no law" is applied to the States? The Supreme Court applies the Bill of Rights to the States by way of the Fourteenth Amendment under what is called the incorporation doctrine. The history of the doctrine can be traced back to two cases:

  • Chicago, Burlington and Quincy Railroad v. City of Chicago, 166 US 226 (1897)
  • Gitlow v. New York, 268 US 652 (1925)

The first case applied the "just compensation" clause of the Fifth Amendment to the eminent domain powers of States while the second required States to honor the free speech provisions of the First Amendment.

Section 1 of the Fourteenth Amendment states

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In prior jurisprudence in the case Barron v. Baltimore, 32 US 243 (1833), the Supreme Court held that the Federal courts could not stop State legislatures from enacting and enforcing laws restricting the rights enumerated in the Bill of Rights. This basically means that any State, or all States, could pass laws denying people within that State any or all of the rights protected by the Bill of Rights. That jurisprudential mistake means that States could, unless enjoined by their own constitutions,

  • establish a State religion and prohibit the expression of other religions,
  • deny the freedom of speech, press, and assembly,
  • take away all guns and rifles and bar ownership of all firearms,
  • quarter State militia troops in your home against your will,
  • deny you the right to counsel in your defense against criminal charges,
  • compel you to testify against yourself,
  • enact cruel and unusual punishments,

among many other things. In other words, under the jurisprudence in Barron, a State government could be downright tyrannical toward its citizens, and the citizens would be powerless to fight back. Article I, Section 9 requires that States always honor the right of habeas corpus, except in cases of rebellion or invasion, so the State cannot arrest you without reason. But under Barron they could deny you a trial by jury, seize evidence without a warrant and absent probable cause, and stop and frisk you without any probable cause. Good thing the Constitution prohibited States from enacting bills of attainder and ex post facto laws.

The Fourteenth Amendment, by way of the Due Process and Equal Protection clauses, applied the Bill of Rights to the States, so said the Supreme Court in Gitlow: (268 US 652 at 666)

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and ‘liberties’ protected by the due process clause of the Fourteenth Amendment from impairment by the States.

By declaring at all that there exist liberties that the States, by way of the Fourteenth Amendment, may not abridge, the Supreme Court set themselves up for a cavalcade of jurisprudence that would result in a jurisprudential landscape by which the States must honor the Bill of Rights. Included in the jurisprudence were Supreme Court cases that limited the interaction of State governments with religion.

The first case to apply the Establishment Clause to the States is Everson v. Board of Education of the Township of Ewing, 330 US 1 (1947). Prior to this case, the Bill of Rights was interpreted as applying only to the Federal government, meaning the States were permitted to grant certain religious denominations certain privileges, whether legislative, effective or miscellaneous. In a sweeping decision by a 5 to 4 vote, the Supreme Court ended it with the stroke of a pen: (330 US 1, at 15, 16)

The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’

The situation that gave rise to the Everson decision involved taxation for transportation to both public and private schools. Of the private schools that benefited, virtually all were Catholic schools. Writing for the minority, dissenter Justice Rutledge wrote: (330 US 1, at 31, 32)

The [First] Amendment’s purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

Basically Rutledge felt that the decision in Everson, while striking a major blow at the entanglement of State governments with religion, was not sweeping enough. This arguably would be corrected in later decisions, most notably and extensively in application to public schools, though in some ways the Court has only muddied the waters in such a way that it is difficult for individual jurisdictions to determine whether a particular incorporation of religious expression by a government entity is a violation of the Establishment Clause.

Typically the muddy waters are with regard to holiday displays, such as those sponsored by city governments. Displays of the Ten Commandments have come under attack as well. On those, one thing is clear: a display of the Ten Commandments by itself in a government building (courthouse, public school, etc.) is a violation of the Establishment Clause.

But getting back to the article on The Right Scoop, how does this apply to public schools, or, more specifically, prayer at public school functions?

Government entities

Before getting to public schools specifically, a couple principles need to be established.

First, a legislature cannot establish government entities with powers beyond those granted to the legislature itself. Any specific restrictions on the legislature apply to the Executive Branch as well. The legislature cannot establish a government agency with powers beyond those granted by the applicable Constitution, nor can it grant powers to a government agency specifically denied by the applicable Constitutional provisions. To do so would result in tyranny.

School boards, state departments of education, and public schools are government entities, all established by acts of their superior legislatures. This means that public schools and their administrations inherit the same limitations applicable to their superior legislatures. This includes the restrictions of the First Amendment.

Prayer at public school functions

The Supreme Court has ruled in two cases applicable to prayer at public school functions:

  • Lee v. Weisman, 505 US 577 (1992), and
  • Santa Fe Independent School District v. Doe, 530 US 290 (2000)

The Lee case involved specifically the graduation ceremony of a public middle school and a prayer benediction to be delivered by a Jewish rabbi. The student in question was Deborah Weisman, whose parents filed suit on her behalf seeking an injunction barring the rabbi from delivering the benediction. Various facts about the case only served to seal its fate at the Supreme Court. The decision, written by Justice Anthony Kennedy, would state prominently: (505 US 577, at 592)

Our decisions in [Engel] and [Abington] recognize, among other things, that prayer exercises in public schools carry a particular risk of indirect coercion. The concern may not be limited to the context of schools, but it is most pronounced there. What to most believers may seem nothing more than a reasonable request that the nonbeliever respect their religious practices, in a school context may appear to the nonbeliever or dissenter to be an attempt to employ the machinery of the State to enforce a religious orthodoxy.

This established what is considered a "coercion test" with regard to prayer and public schools and school functions. This test would be applied in the follow-up case, Santa Fe Independent School District v. Doe, with regard to student-led prayer at school functions, noting specifically

The delivery of such a [religious] message–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.

One prominent fact about the Santa Fe case that is important to note: there are two families represented by the Doe moniker, one Mormon and the other Catholic.

Let’s look at this from a slightly different perspective.

The ability for students to elect student representatives and the purposes those representatives shall serve is entirely at the discretion of the public school at which the elections shall take place. As such the representative offices created by the school administrations, to be filled by the popular vote of students for particular candidates, are limited by the same applicable Constitutional provisions that limit the school itself, for the school cannot create an office, even an office to be occupied by a student representative, with greater power or ability than itself.

This means that student representatives are too enjoined by the First Amendment to the Constitution when operating within the capacity of their appointment and representation. Which brings us to Laci Rae Mattice.

Laci Rae Mattice

Laci Mattice was a school-appointed student representative chosen to speak at her graduation ceremony. As such her conduct and permitted actions are restricted by the First Amendment. The school even informed her of such before, telling her that the moment of silence on the program was to be just that. Instead she decided that her faith compelled her to thank God, after which she said some choice phrases designed with an attempt to escape the restrictions of the First Amendment – which her appointment by the school makes the First Amendment inescapable – before reciting the Lord’s Prayer.

She exceeded the scope of the authority granted her by the school and violated the religious rights of everyone in her graduating class, not just Damon Fowler, the atheist student who objected to the inclusion of a prayer in the graduation ceremony.

Despite what Mattice said, her actions were not compelled by her faith, but by her own willful disregard for the Constitution and her own willful disrespect of her fellow classmate. Other atheists around the blogosphere have commented that Mattice’s actions were more of a "Fuck you!" to atheists than a "Thank you" to God.

I am inclined to agree, as the evidence is overwhelming that the thought running through Laci’s mind as she approached the podium was simply this: fuck what that student has to say, I’m doing what I want, and let’s see them try to stop me.

Her actions, however, could lead to civil liability for the school if the principal had reason to believe that Mattice would perform the actions that took place and did nothing to stop her. As for whether Mattice herself could be held liable – well that’s up to the Courts to decide. And personally, I would support any lawsuit by Damon Fowler against Laci Mattice. I believe it would be the first of its kind.

Links and resources

Kenneth Ballard