The Joe Bob Report

Okay, people, it’s time to stop. Really. Fifty years is enough whining about school prayer.

Fifty years is one Biblical generation plus a ten-year grace period. The train has left the station. Jesus has left the building. Time to move on.

Like that’s gonna happen.

The Illinois Legislature was debating school prayer as recently as *last week*. The 2007 Democratic candidate for governor of Mississippi practically ran on a school-prayer *platform*, and he managed to get 38 percent of the vote against the Haley Barbour money-and-influence juggernaut. So obviously there are vast multitudes out there who refuse to give up on school prayer.

But let me try to convince you anyway, okay? I like lost causes.

So, first, consider these facts:

Since 1962, when the first Supreme Court decision came down, there have been more than one thousand constitutional amendments proposed to bring back school prayer. Five of them have reached the floor of Congress--in 1964, 1966, 1971, 1984 and 1998--and each time they were defeated, usually when the sponsors admitted there’s no way to write the language of the amendment without annoying someone. Even if one of them had passed, though, that would have only been the first step toward a state-by-state approval process, with 38 states required for amending the constitution. Let me put this into perspective for you: In 1962, eleven of the states had *already banned school prayer by law* without any help from the Supreme Court at all. That leaves 39 states to work with. If two of those 39 fail to vote “yes” on the amendment, you lose. So bring Karl Rove and John Ashcroft and Kenneth Starr all out of retirement and give it your best shot for that constitutional amendment campaign, but in Nevada (one of the states where school prayer was always banned), they’re gonna make the official odds for success at about, oh, three million to one.

But that’s just on the federal level. If we start counting proposed state laws, ranging from minute-of-silence edicts to voluntary-prayer resolutions to student-led Bible-study proposals, we could make a conservative estimate that there have been, say, 50,000 *legal* attempts over the past five decades to turn back the string of Supreme Court decisions that run from the late forties to the early sixties.

And now let’s add to that the attempts by misguided school officials to compose “nonsectarian” prayers that would pass constitutional muster (“We affirm our Supreme Being, creator of the Universe,” things of that sort), and you have to assume that we’re well beyond 100,000 attempts to circumvent the court’s unambiguous ruling that you can’t pray in school, period.

And by the way, that very first Supreme Court school prayer case, Engel v. Vitale, revolved around a 22-word “nonsectarian” prayer that’s perhaps the lamest one ever written. It’s impossible to write a lamer one or a less offensive one, so just stop trying! Don’t believe me? Okay, I’m gonna go ahead and quote it:

“Almighty God, we acknowledge our dependence upon Thee, and we beg For the Love of God, Stop! Please Stop!: The First, Last, Final,to make here is that all these efforts–all these prayer initiatives that enrich lawyers–are the ue in futility. For example, you would think that the final nail in the school prayer coffin–the giant sign that said “Turn back now, you can never win this”--occurred in 1981 when Charlene Boyd, a first-grade teacher in Mobile, Alabama, led her class in the “God is great, God is good” prayer, after which she was sued by a five-year-old boy in a case that eventually reached the Supreme Court in 1985, resulting in the justices saying, once again, and with verve, “Stop praying.”

But, of course, it didn’t stop there. We’re another quarter century down the road, and you can type “school prayer” into any search engine and find the public figure nearest your zip code who has either condemned the Supreme Court, signed a new school prayer law, or made a feisty “take back our heritage” speech–about issues that were pretty much resolved a half century ago! And that doesn’t even include the woolly fringe of conspiracy theorists, who look at the school prayer ban as an actual atheist plot, complete with secret meetings going back to 1933. (The alternative, but parallel, *Communist* plot theory has been in abeyance since 1991, even though that was one of the principal pillars of John Birch Society doctrine for three decades.)

To get just a small taste of the “church-state separation is a myth” school of thought, go to www.americansforvoluntaryschoolprayer.org, which is one of the milder groups and so doesn’t have quite so much bold-face type to navigate your way through. James Robison, who’s not even the most extreme evangelical on this issue, once said that the Supreme Court’s “ban on mandatory school prayer” was responsible for the political assassinations of the sixties, the acceleration of the Vietnam war, escalation of crime from then till now, plus “disintegration of families, racial conflict, teenage pregnancies, and venereal disease.” So our hearts go out to all the devastated single mothers who open their medicine cabinets each morning, reach for their herpes medication, and say to themselves, “If only they had made me pray in school.”

Let me say this again: the possibility of restoring a daily prayer during school hours is a complete non-starter. It’s obvious to any neutral observer that there will never, ever again be legal prayer in the public schools. You can gather for prayer five minutes before school starts and five minutes after it’s over. You can use the school building for prayer in the afternoon, prayer at night, and presumably prayer on Sunday morning, if you get the proper permission. You can have a comparative religion course in school, and you can read the Bible as a part of that course, and you can even read prayers out of that Bible in the context of the course. There are nineteen jillion ways you can pray whenever you want, and many of them involve praying in and around the school building. But you have to sympathize with the judge who sat through one of these cases and finally said, “I encourage you to pray, but would you please just not do it between 9 a.m. and 3 p.m.?”

And yet. And yet. People don’t get the message. As late as 1995, the public schools of Pontotoc County, Mississippi, continued to feature daily classroom prayer. If you’re wondering why the Deep South continually turns up in this respect, it could have something to do with Alabama Governor George Wallace’s declaration in 1962 that “I don’t care what they say in Washington, we are going to keep right on praying and reading the Bible in the public schools of Alabama.” Rather than seek a legal end run, he simply refused to comply–and got away with it until 1971, when the Supremes officially shut down school prayer in the state. But then again, maybe not! Because in 1985 the court had to nail the state a second time after an Alabama federal judge tried to outlaw the 14th Amendment. (The understated opinion called the judge’s reasoning “remarkable.”) But maybe Alabama’s mistake was calling attention to its defiance. The postmaster of Pontotoc County, Mississippi, still hadn’t delivered the letter announcing the Supreme Court decision after 33 years. In that blissfully ignorant locale, nothing changed until 1995, when the district was finally sued by the only Jewish student in the county. The Jewish family was then harrassed, of course–this is a sad common denominator in all school prayer cases–and, in an odd cultural inversion, the protesting Christian students gathered at the school to sing “God Bless America,” a song written by a Jew (Irving Berlin) and based on a saying of his Russian immigrant mother, who would stand over the sink in her Lower East Side tenement, sighing “God bless America,” meaning “Thank God the Jews have found this country where we don’t have to worry about pogroms.” I can’t even begin to get my mind around the levels of irony at work here.

One reason I’m thinking about this is that two excellent new studies have revisited the old Supreme Court decisions, in exhaustive detail, and you can read either one of them and get pretty much up to speed on why prayer was banned in the first place and why it’s never coming back. Interestingly, the books are about two different cases, and each author claims that his case is the one that ended school prayer. *The Battle Over School Prayer: How Engel v. Vitale Changed America* is Bruce J. Dierenfield’s look at the case that got to the courthouse first. *Ellery’s Protest: How One Young Man Defied Tradition and Sparked the Battle over School Prayer* is Stephen D. Solomon’s study of *Abington v. Schempp*, which was triggered by an incident in 1956, before any of the other cases had even begun.

There are actually four Supreme Court cases that mattered–another reason nobody can say that this issue wasn’t thoroughly examined–and most people mistakenly think the most important one was that of the Commie atheist Madalyn Murray O’Hair. (Part of the reason this myth endures is that Madalyn herself promoted it for the rest of her life.) But her case, *Murray v. Curlett*, was actually the least important of the four, partly because she *was* a Communist and an atheist. The conservative jurists on the Warren court were bending over backward to make it clear that they thought the establishment clause *protected* religious people, by removing the possibility of any government bureaucrat ever telling you what or when or how you *should* pray. They didn’t want the cases seen as religion vs. atheism, or Jew vs. Christian, and so when Tom Clark–the justice who affirmed Madalyn Murray O’Hair’s suit against the Baltimore school board–wrote his opinion, he hardly mentioned her atheism and emphasized instead the fact that the other plaintiffs, Ellery Schempp and family, were practicing Unitarians. For those Supreme Court-haters who would later say that the decision was handed down by “runaway liberals,” I should point out that Clark was a law-and-order conservative Texan, a Presbyterian church elder, the author of articles on religious piety, and the architect of the “I am not a Communist” loyalty oath, which he used to draft a list of allegedly subversive organizations. As U.S. Attorney General he had personally prosecuted top Communist Party leaders. Of course, that was all before June 17, 1963, day of the Schempp and Murray decisions, when, according to the conspiracy theorists, he turned liberal.

And speaking of Texas, I would be willing to guarantee that Justice Clark was not just any Presbyterian, he was a Cumberland Presbyterian. The reason I’m so sure of this is that in my childhood, the very first public school I ever attended was in Springlake, Texas, population 134, where both of my parents were teachers, and where both were unbothered by the fact that the Lord’s Prayer was recited every morning, verses were read from the Bible, and the entire student body, grades 1 through 12, would sometimes sing “Gimme That Old Time Religion” at school assemblies. This was because there were only three denominations in Springlake–to be precise you had to go six miles down the highway to Earth, population 1104, to find actual churches–and those denominations were Baptist, Methodist and Cumberland Presbyterian. There were massive doctrinal divisions among the three--or at least it seemed that way to us old-time religionists in West Texas. God forbid you tried to marry outside of your faith–my grandmother always feared scandal because, even though she was a Methodist, she had conjoined eternally with a Baptist–but fortunately for school officials the one thing the three denominations did agree on was the King James Bible. There were no Jews, no Catholics except for the occasional Mexican farmworker, and the 20 or so black students were all Baptists. The reason you could read the Bible in the public schools of Springlake, Texas, is the same reason you could invoke the god Mulungu in an East African tribal village. Because there were no other gods available for apostasy!

As soon as a Jew, or a Catholic, or a devotee of Mulungu, or–horrors!–a Muslim moves into such a community, it is my opinion that, Supreme Court or no Supreme Court, all school prayer must cease. Not because we are ordered to do it by the highest authority in the land (although that’s a pretty damn good reason), but because it’s the right thing to do. At the risk of offending 35 million evangelicals who claim to be working toward the restoration of school prayer, I would go further and say that it’s the *Christian* thing to do.

When this issue comes up, principals and school boards invariably defend the status quo, and the first thing they say is always, “Nobody complained about it for a hundred years, and then this *one guy* came along. How can he have the right to ruin everything for 99 percent of our community!”

One thing we know about Jesus, though, is that, faced with a choice between the multitude and the *one guy*, he always sided with the one guy. Especially if the guy was persecuted. Especially if the guy was a non-believer. And especially if the guy was despised. Every plaintiff who has ever brought an anti-school-prayer lawsuit has been despised. In fact, the families were threatened with death (anonymously, of course), their pets were killed, their homes were raked with buckshot, their cars set on fire, and their doorknobs smeared with feces. But even in the cases where there was no violence or thuggish behavior, the plaintiffs in these cases were shunned. They lost their friends and some even lost their jobs. That automatically puts them on the side of Jesus. Jesus was in the business of calling people to him, not beating them over the head with doctrine. Jesus was in the business of laying down his life, not his philosophy. Jesus was, in the context of the school prayer decision, a First Amendment radical. “Render unto Caesar what is Caesar’s, and unto God what is God’s”–12 words that perfectly sum up the 16 words of the religion sentence of the First Amendment, but from God’s side instead of Caesar’s.

So how did we get into this mess? It’s very simple. Pay attention.

In the beginning, all schools were religious. At the time the First Amendment was written, there was really no such thing as a public school, and most of the states still had official government-supported churches–Congregationalism in New England, Anglicanism in the South. (The notable exceptions were Pennsylvania, Rhode Island, New Jersey and Delaware, early movers in religious toleration.) When you learned to read, you learned to read the Bible. When you learned to write, you learned to write something religious.

By the time the first public schools started showing up in the 1830s, Bible verses were already a problem. Horace Mann, the founder of the public school movement, came up with a solution: yes, you can read the Bible in class, but just don’t make any comment on it. He knew what happens when you get Baptists, Methodists and Cumberland Presbyterians in the same room. He was afraid of starting sectarian battles during the Second Great Awakening, the religious revival going on at the time. It was a good solution for the time–let’s call it the Springlake Solution--because the students might have been different denominations, but all those denominations were Protestant.

And then . . . uh oh . . . some Catholics show up. And not just a few of them either. The potato famine drives several million Catholics from Ireland to the cities of the east coast.

Now we’ve got a problem. Not only do some of the Protestant sects believe Catholicism is satanic, but the Catholics don’t even read the same Bible. Think that’s a small matter? You wouldn’t if you’d been in Philadelphia in 1844, when three days of rioting and warfare between Irish Catholics and “nativists” left several people dead, churches burned to the ground, and a monastery destroyed. The issue at stake: whether Catholic school children would be allowed to read the Douay-Rheims Bible in class, instead of the “Protestant” King James. (Today we don’t think of the King James as very Protestant, but we’re talking about the Irish here–their beef may not have been so much that the translation was sponsored by the Church of England as that the Church of England was English.) Then as now, the evangelical Protestants weren’t inclined to compromise.

I pause here to ask the question: If Christians–forget about Jews, atheists, Muslims, whatever–if *Christians alone* couldn’t figure out how to read the Bible in class together in 1844, why would we *ever* think that 120 years later, after the entire continent had filled up with every religion on the planet, that it was a wise idea to continue to try?

Okay, just a question. Back to our story.

The second thing principals and school boards always say in their defense is, “If someone doesn’t want to pray, they can be excused from the prayer, but they won’t be allowed to spoil it for the rest.”

This has come up so many times in school prayer cases that they have a legal name for it: the excusal doctrine. In every case where it’s come before the Supreme Court, it’s been struck down as inadequate–for good reasons that we’ll get to later. Yet there are still school officials today, in 2007, who are apparently too lazy to read the Supreme Court decisions and believe that if the teacher makes an announcement that “those who do not wish to pray may leave the room or sit silently at your desks,” then the religious exercise is permitted.

It’s not. But even if it were, hasn’t it occurred to anyone that, if you’re allowed to *leave the room* during the exercise, then the school has admitted that *it has nothing to do with education*? If a student were asked to leave the room during his social studies lecture, or his math exercises, he would be laughed at, disciplined, or flunked. By allowing the student to leave, the school is saying, “Some of us are taking a little time-out from real school right now, and you might think this is weird, and we completely understand how you could think that.”

There shouldn’t be anything *that weird* in a school!

The excusal doctrine first developed in the late 19th century when schools were faced with all those pesky Catholics, who continued to flood into the United States from Ireland, then Germany, then–the ultimate tidal wave–from Italy. Certain bishops were always adamant that Catholic children not be exposed to the King James version, and in some cases the students would stage mass walk-outs from class. Many dioceses eventually gave up and formed their own parochial school system, but that was a drain on church resources and caused even more battles as they claimed that they were entitled to government funding for those schools because the King James lovers had forced them to leave the public system.

I’ll pause here to ask another impertinent question. Why didn’t the Protestant officials, who controlled the public schools at the time, simply alternate Bibles? King James on Monday, Douay-Rheims on Tuesday.

The answer: Because they didn’t want *their* children going to class and having someone say “Today we’ll be reading from Esdras II, the third chapter.” Even *with* the excusal doctrine!

Finally, in 1869, a school board decided that Bible reading in class was just an all-around bad idea. The city of Cincinnati outlawed it entirely. Cincinnati at the time was full of Catholics, Jews, Lutherans, Mormons and other sects that were still considered unorthodox, and they were sick of dealing with the complaints. After the ban on Bible reading, parents sued the school board–Protestant parents, of course–and one of the first anti-Bible-reading decisions came down from Superior Court Judge William Howard Taft (father of the future president). “No sect,” wrote Taft, “can, because it includes a majority of a community or a majority of the citizens of the State, claim any preference whatever. It can not claim that its mode of worship or its religion shall prevail in the common schools. I cannot doubt . . . that the use of the Bible with appropriate singing, provided for by the old rule, and as practiced under it, was and is sectarian. It is Protestant worship. And its use is a symbol of Protestant supremacy in the schools, and as such offensive to Catholics and Jews.” This opinion was affirmed, in its entirety, by the Ohio Supreme Court, in 1872.

Let me repeat that: 1872. Bible reading in schools should be over in 1872.

And still it continued.

And it took the Jews to stop it.

The great unsung crusader for the abolition of school prayer was a lawyer named Leo Pfeffer, the nation’s leading First Amendment scholar, who worked for the American Jewish Congress. In the late 1940s he was the first to recognize that eventually the Supreme Court was going to have to deal with the problem, and he spent ten years trying to get people *not* to file various lawsuits because he wanted the test case to be perfect. He didn’t want the court to rule just on prayer, or just on Bible reading, or just on Christmas and Easter celebrations, or just on the singing of religious songs, or just on teachers proselytizing, or just on Gideons handing out free New Testaments in schools–he wanted to find a gigantic case of All Of The Above.

And he found it. You can’t read about it in the archives of the Supreme Court, but the case of *Chamberlin v. Dade County* was a doozie. Apparently if you went to public school in Dade County, Florida, in the late fifties, you were pretty much required to deal with daily devotional services, daily Bible readings, mandatory recitations of the Lord’s Prayer, celebrations of every Christian holiday, an Easter crucifixion play featuring a student dying on the cross with stage blood pouring off of him, pictures of Jesus on the walls, nativity scenes in the hallways, mandatory assemblies to celebrate the birth of Christ, regular singing of carols, Christian movies shown during the school day, and prayers “in Christ’s name” at all school events. When Jews complained, the school officials tried to appease the denizens of Miami Beach by having a rabbi come in once a year and light some Hanukkah candles–enraging Jews all the more, because they didn’t particularly want to celebrate Hanukkah at school!

Unfortunately, Leo Pfeffer never got to argue against Dade County before the Supreme Court. The other three cases–*Engel v. Vitale*, *Abington School Board v. Schempp*, and *Murray v. Curlett*–beat him to the docket by just a hair, so that by the time Pfeffer’s case came up, the Supreme Court felt it had already said enough about school prayer and gave Pfeffer his victory in a one-line decision with no comment.

The truth is, the anti-school-prayer decisions of 1962 and 1963 were not some lightning bolt out of the blue. School prayer had been making people nervous for a hundred years by then, and the only reason the majority didn’t recognize it is that most people who were offended by all the praying didn’t have the resources to sue, and if they did, their case would play out in a local or a state court, where they would probably lose. But decade by decade the Supreme Court had been revisiting the 14th Amendment, the one passed in 1868 to make sure that the southern states didn’t persecute ex-slaves by claiming that the Bill of Rights doesn’t apply to the states. (As we’ve seen, one Alabama federal judge was still making this claim as late as 1985.) In fact, prior to that amendment, the Bill of Rights did *not* apply to the states. But slowly, through one decision after another, the Court dealt with each amendment in the Bill of Rights, and eventually said all of them apply to the states as well as the federal government (with the strange exception of the Second Amendment, which has never been fully adjudicated).

Leo Pfeffer was following all these developments on behalf of the American Jewish Congress and waiting for the right time to pounce. (Conspiracy theorists cite him as a participant in the “Jewish plot,” and I suppose that, in this case, they’re right. He was plotting to get the Supreme Court to act.) Even though Jews had been in America at least since 1654 (I know this because I walked past a synagogue this morning that had the date on its cornerstone), they were fairly quiet about their daily encounters with Christianity. Partly this was because they’d escaped so much truly horrendous treatment in Eastern Europe that having to write an essay on “Why Jesus Loves Me” (yes, it happened) seemed a small price to pay. Partly it was because they had a long diaspora tradition of blending in with the dominant culture. And partly it was because they knew it would be a nasty fight.

Meanwhile, the schools were already getting rid of prayer and Bible study on their own. Except in a few isolated pockets of the country--Springlake, Texas, among them–the trend was toward less and less Bible reading, more emphasis on the Easter bunny and less on the cross on Good Friday, and a general encouragement of mouthing rote prayers to a vague and indistinct God. If you’d asked a typical suburban parent in, say, 1955, what he thought of religion in the schools, he probably would have said “the less, the better,” even if he stopped short of an outright ban on it. It wouldn’t be far wrong to say that the eventual decisions of the Supreme Court were less an aggressive blow against a thriving American tradition than the mercy killing of an institution that had forgotten why it was there in the first place.

The abolition of prayer in the public schools, as it finally played out, was a triumph of the high school nerd.

Madalyn Murray’s son William was an atheist nerd. Ellery Schempp was a Unitarian nerd. (Just the name Ellery Schempp resonates with exalted nerddom.) All the plaintiffs’ kids in the Herricks school district in Long Island, where the Engel case played out, were Jewish nerds, except for three who called themselves beatniks and one that was a Jew-turned-Unitarian. They were smart kids, over-achieving kids, often straight-A students. Ellery Schempp, a 16-year-old junior at Abington High School in suburban Philadelphia, was the kind of brainy scholar who enters the local science fair and stays after school to debate philosophy with his favorite teacher. In fact, he first talked about refusing to participate in the daily prayer at a regular Thursday-night meeting where honors English students gathered to discuss Plato, Emerson and Thoreau. And consider how he carried out his protest--like he was working on a school project:

On the day after the Thanksgiving break in 1956, Ellery stuffed a copy of the Koran into the zip-up binder that he customarily carried to school, then reported to his homeroom class early. After his teacher took the roll, the students were asked to clear their desks for the daily Bible reading that would be broadcast over the school’s public address system. But Ellery refused to comply. Instead he opened his Koran and read silently. When the ten Bible verses were finished, everyone rose for the Lord’s Prayer, but Ellery stubbornly remained seated. Asked by his teacher for an explanation, Ellery said that in good conscience he could no longer participate in the prayer or the Bible reading. He was sent to the principal’s office, then the guidance counselor, who questioned him to see if he was “psychologically disturbed.” For the next year and a half he would be isolated from the student body by being sent to the counselor’s office every day during the Bible reading and prayer. (The school was clumsy about its attempts to avoid a lawsuit, because Ellery could still hear the prayers and readings over the p.a. system.) Ellery was frequently dressed down for his “lack of respect,” and his behavior made the school officials so angry that the vice principal actually wrote letters to colleges, saying they shouldn’t accept him as a student because he was a troublemaker. (The vice principal failed spectacularly in his attempts to frustrate Ellery’s academic ambition. Ellery Schempp became an honors student at Tufts University, earned his PhD in physics from Brown University, taught physics at the University of Pittsburgh and the University of Geneva, and worked on problems of nuclear waste disposal at the Lawrence Berkeley National Laboratory. Don’t mess with a dedicated nerd.)

In this one case we have all the elements that were repeated over and over again in school districts across the country, and which continue to be played out even today. A brainy kid with brainy parents–either Jewish or Unitarian or “ethical culturalist” or (rarely) atheist--stages a symbolic protest. (Ellery was not a Muslim and carried the Koran just to make his point.) School officials don’t take it seriously, and they cite a number of reasons why the protest is silly. When the religious practice continues, the parents sue. The other parents persecute the plaintiffs in the lawsuit. The plaintiffs win, and the persecution intensifies. The school board then changes the prayer and Bible reading policy but refuses to admit defeat.

Not only did this happen in all four of the famous cases that played out between 1956 and 1963, but the Supreme Court rulings–which were lengthy, specific and clear–are often ignored to this day in the most glaringly obvious ways. The excusal provision, as I pointed out, had been ruled unconstitutional as early as 1948, but the point had to be made again in 1962, in 1963, and in every case since then. The court gave two reasons for not buying the “they can leave the room” defense. The first, and most important, is that the establishment clause of the First Amendment forbids government from taking any position on religion–you can’t support it and you can’t inhibit it–and a state-mandated prayer does exactly that, regardless of whether you have the right to be excused from it or not. The second reason, also cited by numerous justices over the years, is that no schoolchild wants to be seen as an “oddball,” to use Justice William Douglas’s term, which is exactly what would happen if he or she had to ask to be excused from the prayer every day. So the policy amounts to passive coercion, therefore violating the “free exercise” clause. As Justice Felix Frankfurter put it, “Non-conformity is not an outstanding characteristic of children.”

In all three of the landmark decisions, the vote was one vote short of unanimous, with only Justice Potter Stewart holding out for a narrow interpretation of the establishment clause. Stewart maintained that the clause forbids the United States from having an official church, but nothing more. His current intellectual descendant on the court is Justice Antonin Scalia, who believes the same thing and has publicly derided “our embarrassing Establishment clause jurisprudence.” But if you look back over all the church-state cases from the forties, fifties and sixties, you always had some of the most staunch conservatives (John Harlan, Byron White, Robert Jackson, Felix Frankfurter) insisting on the “wall of separation.”

And you knew I was gonna bring that up, didn’t you?

“Wall of separation”--the three fighting words in today’s battles over school prayer, the three words seized on by evangelical conservatives as part of the conspiracy to distort the “true” history of the First Amendment. The term makes them so mad, in fact, that they’re determined to eliminate it from the debate entirely. If you go to any of the school prayer websites, you’ll eventually find an essay that says, “The phrase ‘wall of separation’ is found nowhere in the Constitution or in any law of the land. The idea of ‘separation of church and state’ is not mentioned in the Declaration of Independence or the U.S. Constitution.”

Which is true. But since you brought it up, let’s get down to the nitty here . . .

It was Thomas Jefferson, newly elected as president, who coined the phrase “wall of separation between Church & State” in a letter written on January 1, 1802, to the Danbury Baptist Association in Connecticut. The Baptists had asked Jefferson to declare a national day of prayer, in order to heal the wounds of the recent election, but he said no. And here’s the pertinent passage:

“I believe with you that religion is a matter which lies solely between Man & his God . . . I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church & State.”

So it’s not in the Constitution, but it’s in a letter by the guy who wrote the first religious liberty document in America (the Virginia Bill for Establishing Religious Freedom), who worked with James Madison on the Memorial and Remonstrance against Religious Assessments, and who is considered, at the very least, the co-creator of the Bill of Rights. Jefferson also had a lifelong preoccupation with religious affairs, even going so far as to publish his own expurgated New Testament, which was handed out to incoming Congressmen for many years thereafter. Madison’s views on the subject are even better documented–he was a purist to the end of his life, and was troubled by even minor things like military chaplains and prayers in the Congress. “Religion and government will both exist in greater purity,” he famously said, “the less they are mixed together.”

But the point is that, even if you still maintain that the “wall” metaphor is taken out of context, it doesn’t matter because . . . it’s also enshrined in the very first case that applied the religion clause to the states!

Justice Hugo Black, a Southern Baptist turned Unitarian who had taught Sunday School in Alabama, quoted the Jefferson “wall” letter in Everson v. Board of Education of Ewing Township, a 1947 case in which the state of New Jersey was sued for reimbursing Catholic parents who had to bus their children to parochial schools. Oddly enough, the practice was upheld, 5-4, but Black wanted it understood that it was upheld only because the case involved transportation to and from school, not favoritism toward religion. “Neither a state nor the Federal Government can set up a church,” wrote Black. “Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” Then he quoted Jefferson’s “wall of separation between Church and State,” only to conclude that busing had a state purpose, not a religious one. The conservative justices Jackson and Frankfurter dissented, saying even busing a kid to a religious school was too much involvement with religion.

At any rate, I’ve gone on at some length about the “wall of separation” issue because it seems so heavily fraught with charges of betrayal, as though the court had just made it up in order to foist rulings on the public. Justice Scalia has even written that Jefferson is not worthy of reference on the First Amendment, because he was in Paris at the time the amendment was adopted. According to this logic, we should start Google-mapping every Congressman at the time of every vote, and disqualify their influence if they happened to be in, say, Baghdad at the time of passage. “Wall of separation” is obviously a phrase that caught on, and the *reason* it caught on is that it’s a simple way to understand what the Amendment actually says, using the neutral metaphor of a wall to indicate that religion and the state should never be entangled. In the first part of that sentence, Jefferson actually quotes *both* religious clauses of the First Amendment, then says “thus” . . . the wall! He may have been in Paris, but at least he was *alive* when the debate occurred!

Anyway, all this talk about what the Founding Fathers *really* intended by the 16 words in the First Amendment gets a little tiring after a while. Jon Meacham, the managing editor of *Newsweek*, recently attempted to find every single reference to God by the Founding Fathers and other American leaders throughout history, and he assembled his findings in *American Gospel: God, the Founding Fathers, and the Making of a Nation*, a fairly decent summary of the sources usually cited as well as the ones that we tend to overlook. If I can try to sum up his 400 pages succinctly, it would be this way. If the Founding Fathers had a holy book, it was John Locke’s *A Letter concerning Toleration*, written in 1688 and calling for governments to get out of the religion business entirely. You see Locke turning up all through the religious freedom documents of the late 18th century, beginning with the term “free exercise” in the Virginia Declaration of Rights in 1776. So American political liberals are correct when they say that the first leaders of this country wanted the actual government to have as little to do with religion as possible.

But they’re only partially correct. The Founding Fathers tended to be deists, but none of them were atheists. When you read the more intemperate attacks on the religious right, the writers sometimes assume that the Founding Fathers had no religion at all. This is absurd. George Washington, for example, was extremely devout and, unlike Jefferson, had no compunction about calling for national days of prayer and fasting. If you try to find the *least* religious among the founders, you probably end up with Jefferson, Hamilton and Madison, and yet if you read their biographies, they spent more time in church than the average American today. The target of their secular laws was not God, but the entanglement of God with government. They encouraged, not discouraged, prayer and devotion in the public arena.

There was only one Christian denomination not represented at the Constitutional Convention, and that was the Baptists. Why? Because the Baptists wanted absolutely nothing to do with government. John Leland, the pastor of the most influential Baptist congregation in Virginia, was the ally of Jefferson and Madison against Patrick Henry, who wanted state support of all Christian sects. The Baptists were scandalized by the idea of receiving money from government, and Leland was especially aggressive, calling ministers who took money from the state “hirelings.” He was also opposed to Sunday closing laws, saying that that was a way for government to recognize the Christian Sabbath, and he wanted no such recognition from the government. Leland wasn’t at all vague about his support for the “wall,” pushing through a Baptist resolution that any state support of religion was “repugnant to the spirit of the Gospel” and that “no human laws ought to be established for that purpose.” (Evidence that the spirit of Pastor Leland was still alive two centuries later comes from Rabbi James Rudin, a former Air Force chaplain and now senior interreligious advisor of the American Jewish Committee, who in 1942 was the only Jew in his third-grade class in Alexandria, Virginia. After being banished to the hallway every morning for two weeks along with two Catholics, so that 27 Protestant eight-year-olds could have Bible reading and class prayers, Rudin’s father complained to the school. The Southern Baptist principal then summoned the Southern Baptist teacher and chastised her in front of the Jewish and Catholic parents, referring frequently to “Mr. Jefferson,” who in the Old Dominion needs no first name. The story is recounted in Rudin’s book, *The Baptizing of America*, which is also a handy little guide to the strange intellectual origins of Dominionism.)

By the way, almost all the Southern Baptist preachers in the Greater Springlake Metropolitan Area of my youth would have agreed with Pastor Leland about “the wall,” as many of them frequently warned their congregations about the sin of “mixing”–putting the name of God on politics. I miss those guys. One of them was Herschel Hobbs, president of the Southern Baptist Convention, who called the Engel decision in 1962 “one of the greatest blessings that could come to those of us who believe in the absolute separation of church and state.” Unfortunately, he was overshadowed by a more famous Southern Baptist named Billy Graham, who continued to rail against the decision from his bully pulpit for the next two decades. Even more indication of the divided Baptist community: Graham’s own magazine, *Christianity Today*, came out for the Supreme Court.

All right, if you’ve been paying attention, then you must be starting to wonder, just a tad, how it was possible to continue fighting this issue in the courts for the next 45 years. Let me run down just a few of the ways:

We’re not reading the Bible or praying for any religious reason, but purely for “moral and ethical teachings” that promote “virtue and morality.” (This was already revealed to be farcical at the time of Schempp. The court pointed out that there are several thousand *other* “moral and ethical” texts that could be used just as well.)
We’re not promoting any particular religion. We’re promoting *all* religion. (This is a violation of Justice Black’s test in the 1947 case.)
The differences between one prayer and another, one Bible and another, one expression of devotion as opposed to another expression, are so slight as to be harmless. (This argument had been struck down by the Illinois Supreme Court in 1910, which noted, “Sectarian aversions, bitter animosities and religious persecutions have had their origin in apparently slender distinctions.”)
The Bible is being studied as a “work of great literary value.” (This one actually got approved several times by lower courts before being struck down by the Supremes.)
The state has no policy on school prayer. It’s entirely the teacher’s discretion. (A non-starter. The teacher is still an employee of the state.)
No one has ever sued our school district. (Yes, Pontotoc County, we know, and that’s no excuse.)
All prayer is student-led. (That still allows the majority religion to control prayer. It’s a violation of the free exercise clause.)
All prayer is voluntary and silent. (These laws were thrown out for using the term “prayer,” leading to the “moment of silence” laws still in effect in some places today.)
We don’t pray, we sing the fourth stanza of “The Star-Spangled Banner” (the only one with God in it) without singing the first three, because the students like that one better. (Oddly enough, “America,” better known as “My Country ‘Tis of Thee,” also has a Godly fourth stanza.)

And on, and on, and on. Perhaps the most bizarre and elaborate attempt to circumvent the Supreme Court occurred in Netcong, New Jersey, in 1969. Students were required to attend a five-minute daily assembly at 7:55 a.m., five minutes before school formally began, and a student volunteer read a passage from the *Congressional Record*. The passage chosen always just happened to be the “remarks” of the Congressional chaplain, which consisted of a Bible reading and a prayer.

This, too, failed to pass Constitutional muster. Members of Congress, said the court, are adults and can decide what they want to hear. Students cannot.

We return once again to the first case, *Engel v. Vitale*, and Tom Clark’s clear and simple test for determining whether a law, a prayer, or a religious exercise violates the constitution. It’s a two-part test. The first part is: What is the purpose of the law? If it either advances religion, or inhibits religion, then it’s unconstitutional. And the second part of the test is: What is the effect of enacting the law? In other words, even if the *purpose* of the law is non-religious, the effect might promote or inhibit religion, and that, too, is against the law.

So it was then, and so, with several elaborations, it is now. So why do people continue to beat this dead mule? Why expend so much effort to force students of 1,500 separate American faiths (at last count) to mouth empty phrases that, even if legal, would have no value for the church or the individual soul?

Fortunately we know why.

The J-man told us why.

“And when thou prayest,” he said, “thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, they have their reward. But thou, when thy prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly. But when ye pray, use not vain repetitions, as the heathen do: for they think that they shall be heard for their much speaking.”

When Justice Black was reading his opinion in the Engel case, he paused for a moment and departed from the official text. This is rare in the Supreme Court, and especially rare for Black, but apparently he felt moved to make an additional point. “The prayer of each man from his soul,” he said, “must be his and his alone.”

Those who would force the vain repetitions of public prayer, in any form, are Pharisees and hypocrites, even if they enforce it only on the faithful. They do it to be seen of men.

I close with two examples from history. The first is about a Pharisee who ran a school. The second is about hypocrites who attended a school.

In 1859 an 11-year-old Catholic boy named Thomas Whall refused to read the Lord’s Prayer and the Ten Commandments during his weekly required exercises at a Boston public school, so assistant principal McLaurin F. Cooke whipped the boy’s hands with a three-foot-long rattan stick, pausing occasionally to give him a chance to begin his recitations. The beating continued for 30 minutes, with the boy’s classmates shouting at him not to give in, but the pain and the blood were too much and he finally relented and agreed to read as instructed. The Whall family lodged a criminal complaint, but the judge said that the Bible exercises were required by law so that young children could learn “humanity, and a universal benevolence, sobriety, moderation and temperance.” Complaint dismissed.

History does not record whether the boy developed a deep reverence for the Ten Commandments, or whether he became benevolent, sober, moderate and/or temperate. History does record, however, that 400 other Catholic students remained defiant, ripping the Protestant Ten Commandments out of their readers--after which they were all expelled. Tom Whall himself received tributes, presents and a gold medal from admiring Catholics around the country. For he was a martyr. No one has trouble identifying the hypocrites in this story.

But in our own times we might need some help.

Fast-forward 136 years, once again to a small town in Texas. At Santa Fe High School--where even in 1995 teachers were known to openly evangelize in class and the Gideons still handed out Bibles at the schoolhouse door–school officials decided they would have an elected “student chaplain” pray before football games “in Jesus’ name.” When two students-one Catholic, one Mormon–complained, the school refused to deal with them, so a lawsuit was filed by “Jane Doe” and “John Doe.” (They filed anonymously so they wouldn’t be hassled in the halls of the school.) The school district was so incensed that bogus petitions were circulated–one supporting prayer, one opposing it–to try find out the identities of the students, until a furious district judge threatened the officials within an inch of their lives. Eventually the Fifth Circuit said that, no, you couldn’t pray over the p.a. system at the football game, especially if the prayer was plainly sectarian.

But the school district refused to give up. They wrote a new policy, saying that prior to each game there would now be “an invocation and/or message,” delivered by an elected student, and that student would be told that the message couldn’t be specifically Christian. The winner of the election was Marian Ward, the daughter of a Southern Baptist preacher. At the first football game after her election, as soon as the microphone was switched on, she defied the instruction, asked for God’s blessing on the team, and closed with “in Jesus’ name, I pray.” For this, she got a standing ovation, acclamation from the Texas Legislature, and the personal approval of then Governor George Bush, who instructed the state Attorney General to prepare a brief for Santa Fe’s appeal, asking the Supreme Court to “focus on the rights of the speakers, not of the listener. Constitutionally speaking, the majority view is just as valid as the minority view.” (What’s remarkable about this particular sentence is that, constitutionally speaking, the exact opposite is true.) Whereas Thomas Whall had been proclaimed a hero for being punished for the sake of the gospel as he understood it, Marian Ward was proclaimed a heroine for doling out the punishment herself, ramming her own gospel down people’s throats, especially the throats of that Mormon and that Catholic who were skulking somewhere among the bleachers. And so times had changed.

When the Santa Fe case finally got to the Supreme Court in 2000, the justices ruled against student-led prayers at football games, and Justice John Paul Stevens wrote that under the Santa Fe system, “minority candidates will never prevail and . . . their views will be effectively silenced.”

Justice Stevens couldn’t have added the final verdict, because it would be Caesar infringing on God’s place. But I’m going to invoke my credentials as an old-time religionist and say it myself.

I was a hypocrite and a Pharisee in Springlake, Texas.

You, Marian Ward, are a hypocrite, and your supporters on the Santa Fe school board are Pharisees.

You, George Bush, I forgive, because I’m certain you know not what you do.

You, Antonin Scalia, my Catholic brother, should know better. You would replace the dangerous and beautiful prayer of St. John of the Cross, Therese of Lisieux, the Benedictines, the Trappists, the Cistercians, the Carthusians and the Desert Fathers–you would replace this mystery with the boredom of a public state-mandated catechism. You are a Pharisee *and* a hypocrite and much too smart a gentleman to be fraternizing with my Baptist brothers, who at least have the advantage of ignorance when they take comfort from the empty wheezing of dead words.