Steven Douglas Smith (University of San Diego School of Law) has posted Why School Prayer Matters (7 pages) on SSRN. Here is the abstract:
Recently President Trump has been emphasizing the importance of school prayer and promising “big action” on the subject. Although the President’s understanding and intentions are difficult to discern, his statements provide an occasion for remembering the audacity of the Supreme Court’s school prayer decisions, and their transformative significance not only for the jurisprudence of church and state but for the national self-understanding.
And from body of the paper:
[The] regular recitation [of prayer] in public schools was expressive of– and constitutive of– a nation that considered itself to be, as the Pledge of Allegiance puts it, “under God.” This understanding was subtly communicated both to fidgeting or distracted students and to the citizenry as a whole. Conversely, the official elimination of school prayer– its elimination on the proclaimed if implausible premise that the nation’s constitutive instrument, the Constitution, prohibited such prayers– both expressed and helped to inculcate a very different national self-understanding. This newer self-understanding represented a decisive break with American traditions. Although the words “under God” were added to the Pledge in the 1950s, they were of course taken from perhaps the most revered official expression in our history: we are, Lincoln had declared in his Gettysburg Address, “this nation, under God.” And Lincoln was speaking within a well-established constitutional tradition. Thus, in the first presidential inauguration, George Washington had offered these earnest words:
[I]t would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe . . . . No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency . . . .
Through much of American history, such unapologetic invocations were common enough. Even irreverent and supposedly “secular” figures like Thomas Jefferson eloquently called upon deity in their official statements. And as late as 1952 the Supreme Court itself could declare that “we are a religious people whose institutions presuppose a Supreme Being.” Insofar as constitutional jurisprudence from the school prayer decisions onward has insisted on a secular governmental sphere, it has in a very real sense cut us off from our own past. We gaze back at Washington and Jefferson and Lincoln from across a gaping constitutional divide.
And in conclusion:
But might that traditional self-understanding ever be revived as an official matter– in actual constitutional doctrine? And might the judicial decisions that more than any others helped to marginalize and displace the founding and traditional understanding of this nation as one “under God”– namely, the school prayer decisions– themselves come in for judicial reexamination?
The prospects may seem unlikely. But who knows? History, like its Author, can work in mysterious ways.
Posted at 6:55 AM