法律英语：108 Prayer in School

Hello, and welcome to Legal Lad’s Quick and Dirty Tips for a More Lawful 1 Life. I’m your host, Adam Freedman.

But first, your daily dose of legalese: This podcast does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.   

Today’s episode concerns School Prayer. Mary writes: “At my children's high school there is a teacher/coach that leads prayer…..  He also has a link from the school's Web page to his own personal Web page that endorses 2 his religious beliefs.  Is this a violation 3 of the establishment clause?”

That, Mary, is an excellent question.

The Establishment Clause is part of the First Amendment 4 to the Constitution. It states that “Congress shall make no law respecting an establishment of religion.”This innocent sounding provision has been a constant source of controversy 5 and litigation almost from the beginning.

Those Anti-Establishment Founders 6

For starters – what did they mean by “an establishment of religion?” An established church was a concept well known to the Founding Fathers – most notably 7 in the form of England’s established Anglican Church. Historical evidence suggests that the framers used the term “establishment of religion” (rather than “established church) so as to prohibit government aid to churches that may fall short of establishing a national religion.

No Sects 9, Please!

The founders looked back in horror at the religious wars that had raged across Europe during the previous century. James Madison, often referred to as the “Father of the Constitution” said that the key to religious freedom, “consists in . . . a multiplicity of sects.” The fear was that if one religious sect 8 gained the backing of the government, it could use its power to punish dissenters 10. You might say that the Establishment clause was the founders’ attempt to promote sects, not violence.

The Perennial 11 Controversy

Translating these ideals into real-world decisions isn’t easy and the courts have been wildly inconsistent in interpreting the Establishment Clause. On a single day in 2005, the Supreme 12 Court held that a display of the Ten Commandments at the Texas state capitol was constitutional while a similar display in a Kentucky courthouse was not – meanwhile, the US Supreme Court building itself features no fewer than three representations of Moses bearing the Ten Commandments.

The State Must Be Neutral on Religion

Still, certain principles are fairly clear. Since 1947, the Supreme Court has held that the First Amendment "requires the state to be a neutral in its relations with groups of religious believers and non-believers. ”In the context of public schools, that means that students are free to say a prayer in their free moments, or even to form prayer groups with their fellow students. But teachers and school administrators 13 are representatives of the state, and when they’re on duty they can’t encourage or discourage religious activity.For example, in Engel v. Vitale, the Supreme Court held that teachers and other public school officials may not lead their classes in prayer, devotional readings from the Bible, or other religious activities. In the 1992 case of Lee v. Weisman, the Court also held that schools couldn’t sponsor prayer at a graduation ceremony.

So, as to the first part of the question: if the teacher in question is leading students in prayer while acting 14 in his official capacity as a teacher, there may well be an Establishment Clause issue. Even in his capacity as an athletic 15 coach, he shouldn’t really encourage religion, beyond the occasional “hail mary” pass.

Does a Hyperlink 16 pass the “Lemon Test”?

The second part of today’s question concerns the school’s Web page – it has a link to the teacher’s personal web page which in turn features religious content. Whether the existence of that hyperlink on a school website violates the Establishment Clause is a fascinating question.

Courts often evaluate questions like this based on the so-called “Lemon test.” This has nothing to do with citrus fruits or used cars; it comes from the Supreme Court case of Lemon v. Kurtzman. Under the Lemon est, government action involving religion has to meet three criteria 17: (i) it has to promote a secular 18 purpose; (ii) its primary effect must be neither to advance nor inhibit 19 religion; and (iii) it must not foster an excessive entanglement 20 with religion. It’s a pretty fuzzy standard, and it’s hard to predict how a court would come out in any particular case.

A Link and a Prayer

Although I’m not aware of a case directly “on point,” in May 2008, a federal court in Tennessee held that a school had violated the Establishment Clause by giving “preferential treatment” to a prayer group formed by some of the parents. One aspect of that preferential treatment was providing a link to the group’s website from the school’s site.But that was only one of many facts in that case – whether there’s a First Amendment issue with your local school’s website will depend on all the facts.

Finally, it’s worth remembering that the Establishment Clause is meant to unite all Americans in our religious diversity. In the words of the Pledge of Allegiance, we remain “one nation, under …” Well, you get the idea.

Thank you for listening to Legal Lad’s Quick and Dirty Tips for a More Lawful Life. 

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