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On Monday, June 19, the United States Supreme Court dealt another
damaging blow to religious freedom in the United States.

In Santa Fe Independent School District v. Doe, the Court, in a 6-3
decision, struck down a Texas school district’s policy that allowed an
elected student representative to deliver a public invocation before
home high school football games. The Court declared the policy
unconstitutional in that it violates the Establishment Clause of the
First Amendment.

So that we know what we are talking about, let’s look at the language
of the two “religion” clauses of the First Amendment itself: “Congress
shall make no law respecting an establishment of religion (Establishment
Clause), or prohibiting the free exercise thereof (Free Exercise
Clause).”

In its legal brief the district argued that “there is a crucial
difference between government speech endorsing religion, which the
Establishment Clause forbids, and private speech endorsing religion,
which the Free Speech and Free Exercise Clauses protect.” The Court
agreed that there is a distinction between government (public) speech
and private speech, but disagreed that the pre-game prayer was private
speech.

The Court was unimpressed that the students themselves and not the
school district would decide whether there would be a prayer, who would
deliver it and its content. The prayer was public because it would be
“authorized by a government policy and (would) take place on government
property at government-sponsored school-related event.” The student
elections, according to the Court, would “effectively silence” minority
religious views because the “degree of school involvement” would put
“school-age children who objected in an untenable position.”

Some are encouraged by the language and tone of Justice Rehnquist’s
vigorous dissent. Joined by Scalia and Thomas, he condemned the majority
opinion as bristling “with hostility to all things religious in public
life.” He also criticized the majority for invalidating a policy that
hadn’t even been implemented yet, accusing them of “venturing into the
realm of prophesy.”

I must confess that I am not much heartened by the dissent. Even the
minority has apparently fallen into the trap of history revisionism in
their interpretation of the Establishment and Free Exercise Clauses. The
record needs to be corrected.

The Establishment Clause forbids Congress — that is the national
legislature — from establishing a national religion. You probably won’t
believe me without serious digging on your own, but it was never
intended to preclude the individual states from establishing a state
religion. Did you know, for example, that at the time of the
ratification of the Constitution, as many as three New England states
had established religions and other states had officially sanctioned
religious beliefs? Indeed, constitutional scholar Stan Evans reminds us
that House debates at the time reveal that the First Amendment’s
religion clauses were aimed at preventing Congress from establishing a
“national” religion that would threaten the religious diversity of the
states.

But, you say, the 14th Amendment made these prohibitions operative
against the states as well. That is arguably true, depending on what
prohibitions you’re talking about. The First Amendment was never
intended to prohibit officially sponsored prayer. On the next day after
the First Amendment was approved by the House of Representatives, “the
self-same House of Representatives passed, by a better than two-to-one
majority, a resolution calling for a day of national prayer and
thanksgiving.”

Evans correctly concludes that if the First Amendment didn’t prohibit
officially sponsored, tax-supported prayer, then the Fourteenth
Amendment, by imposing First Amendment protections against the states,
couldn’t possibly have done so either. The purpose of the Establishment
Clause was “to make sure the central authority didn’t meddle with the
customs of local jurisdictions.”

Of course I’m not arguing that states ought to be able to establish
religions (their own Constitutions forbid that now anyway). But an
undistorted historical record is critical to understanding that the
framers openly embraced religion and did not intend to erect a wall of
separation between church and state. I don’t mean to offend anyone here,
but it is absurd to argue that the school district’s indirect
involvement with its students’ prayers constituted an establishment of
religion by the State of Texas.

We must remember that the framers, in drafting both religious
clauses, were seeking to preserve, not ban religious worship — even on
public property. The Supreme Court, in the name of preserving religious
freedom, is severely diminishing it.

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