By FindLaw Staff | Legally reviewed by Laura Temme, Esq. | Last reviewed July 20, 2022
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Religious freedom is one of the most strongly protected rights under the United States Constitution. The Supreme Court tends to side with religious organizations when constitutional challenges arise - especially in recent years. However, the Constitution also prohibits the promotion of one religion over another. And there are few places where this issue arises more often than it does in public schools.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."
United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
Upon recommendation of the state governing board, a local New York school required each class to begin each school day by reading aloud the following prayer in the presence of the teacher:
“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country.”
Students who wished to do so could remain silent or leave the room. The Supreme Court wrote:
“We think that by using its public school system to encourage recitation of the Regents’ prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York’s program of daily classroom invocation of God’s blessings as prescribed in the Regents’ prayer is a religious activity…
[W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government.1
Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause.
The Establishment Clause…does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.2”
Following the prayer decision came two cases in which parents and their school-age children challenged the validity under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. Scripture reading, like prayers, the Court found, was a religious exercise. Given that finding the exercises and the law requiring them are in violation of the Establishment Clause.3
Rejected were contentions by the state that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, the perpetuation of traditional institutions, and the teaching of literature4 and that to forbid the particular exercises was to choose a religion of secularism in their place.5
Though the place of religion in our society is an exalted one, the Establishment Clause, the Court continued, prescribed that in the relationship between man and religion, the state must be firmly committed to a position of neutrality.6
In Wallace v. Jaffree,7 the Court held invalid an Alabama statute authorizing a 1-minute period of silence in all public schools for meditation or prayer. Because the only evidence in the record indicated that the words or prayer had been added to the existing statute by amendment for the sole purpose of returning voluntary prayer to the public schools, the Court found that the first prong of the Lemon test had been violated, i.e., that the statute was invalid as being entirely motivated by a purpose of advancing religion.
The Court characterized the legislative intent to return prayer to the public schools as quite different from merely protecting every student’s right to engage in voluntary prayer during an appropriate moment of silence during the school day,8 and both Justices Powell and O’Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.9
The school prayer decisions served as precedent for the Court’s holding in Lee v. Weisman10 that a school-sponsored invocation at a high school commencement violated the Establishment Clause. The Court rebuffed a request to reexamine the Lemon test, finding [t]he government involvement with religious activity in this case [to be] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school.
State officials not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers. The Court, in an opinion by Justice Kennedy, viewed this state participation as coercive in the elementary and secondary school setting.11 The state in effect required participation in a religious exercise, since the option of not attending one of life’s most significant occasions was no real choice. At a minimum, the Court concluded, the establishment clause guarantees that government may not coerce anyone to support or participate in religion or its exercise.
In Santa Fe Independent School District v. Doe12 the Court held a school district's policy permitting high school students to vote on whether to have an invocation and/or prayer delivered prior to home football games by a student elected for that purpose to violate the establishment clause. It found the policy to violate each of the tests it has formulated for establishment clause cases.
The preference given for an invocation in the text of the school district’s policy, the long history of pre-game prayer led by a student chaplain in the school district, and the widespread perception that the policy is about prayer, the Court said, made clear that its purpose was not secular but was to preserve a popular state-sponsored religious practice in violation of the first prong of the Lemon test.
Moreover, it said, the policy violated the coercion test by forcing unwilling students into participating in a religious exercise. Some students—the cheerleaders, the band, football players—had to attend, it noted, and others were compelled to do so by peer pressure. The constitutional command will not permit the District 'to exact religious conformity from a student as the price' of joining her classmates at a varsity football game, the Court held.13
Finally, it said, the speech sanctioned by the policy was not private speech but government-sponsored speech that would be perceived as a government endorsement of religion. The long history of pre-game prayer, the bias toward religion in the policy itself, the fact that the message would be delivered to a large audience assembled as part of a regularly scheduled, school-sponsored function conducted on school property14 and over the school's public address system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as stamped with [the] school’s seal of approval.15
The Court concluded that [t]he policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events.16
1. Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).
2. 370 U.S. at 430. Justice Black for the Court rejected the idea that the prohibition of religious services in public schools evidenced a hostility toward religion or toward prayer. Id. at 434. Rather, such an application of the First Amendment protected religion from the coercive hand of government and government from control by a religious sect. Dissenting alone, Justice Stewart could not see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation. Id. at 444, 445.
3. Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963). [T]he States are requiring the selection and reading at the opening of the school day of verses from the Holy Bible and the recitation of the Lord’s Prayer by the students in unison. These exercises are prescribed as part of the curricular activities of students who are required by law to attend school. They are held in the school buildings under the supervision and with the participation of teachers employed in those schools. None of these factors, other than compulsory school attendance, was present in the program upheld in Zorach v. Clausen. Id.
4. 374 U.S. at 223–24. The Court thought the exercises were clearly religious.
5. 374 U.S. at 225. We agree of course that the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believe in no religion over those who do believe.’ Zorach v. Clauson, 343 U.S. at 314. We do not agree, however, that this decision in any sense has that effect.
6. 374 U.S. at 226. Justice Brennan contributed a lengthy concurrence in which he attempted to rationalize the decisions of the Court on the religion clauses and to delineate the principles applicable. He concluded that what the Establishment Clause foreclosed are those involvements of religious with secular institutions which (a) serve the essentially religious activities of religious institutions; (b) employ the organs of government for essentially religious purposes; or (c) use essentially religious means to serve governmental ends, where secular means would suffice. Id. at 230, 295. Justice Stewart again dissented alone, feeling that the claims presented were essentially free exercise contentions which were not supported by proof of coercion or of punitive official action for nonparticipation.
While numerous efforts were made over the years to overturn these cases, through constitutional amendment and through limitations on the Court’s jurisdiction, the Supreme Court itself has had no occasion to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating statute requiring the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom, on the grounds the Ten Commandments are undeniably a sacred text and the pre-eminent purpose of the posting requirement was plainly religious in nature).
7. 472 U.S. 38 (1985).
8. 472 U.S. at 59.
9. Justice O’Connor’s concurring opinion is notable for its effort to synthesize and refine the Court’s Establishment and Free Exercise tests (see also the Justice’s concurring opinion in Lynch v. Donnelly), and Justice Rehnquist’s dissent for its effort to redirect Establishment Clause analysis by abandoning the tripartite test, discarding any requirement that government be neutral between religion and irreligion, and confining the scope to a prohibition on establishing a national church or otherwise favoring one religious group over another.
10. 505 U.S. 577 (1992).
11. The Court distinguished Marsh v. Chambers, 463 U.S. 783, 792 (1983), holding that the opening of a state legislative session with a prayer by a state-paid chaplain does not offend the Establishment Clause. The Marsh Court had distinguished Abington on the basis that state legislators, as adults, are presumably not readily susceptible to 'religious indoctrination' or 'peer pressure' and the Lee Court reiterated this distinction. 505 U.S. at 596–97. This distinction was again relied on by a plurality of Justices in Town of Greece v. Galloway, see 572 U.S. ___, No. 12-696, slip op. at 18–24 (2014), in a decision upholding the use of legislative prayer at a town board meeting. Justice Kennedy, on behalf of himself and Chief Justice Roberts and Justice Alito, distinguished the situation in Lee, in that with legislative prayer, at least in the context of Town of Greece, those claiming offense at the prayer were mature adults who are not susceptible to religious indoctrination or peer pressure and were free to leave a town meeting during the prayer without any adverse implications. Id. at 22–23 (quoting Marsh, 463 U.S. at 792).
12. 530 U.S. 290 (2000).
13. 530 U.S. at 312.
14. 530 U.S. at 307.
15. 530 U.S. at 308.
16. 530 U.S. at 317.
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