Should the Children Pray? / That Godless Court? Supreme Court Decisions on Church-State Relationships

Article excerpt

SHOULD THE CHILDREN PRAY? Fenwick aims to be objective, not providing a personal answer to the question she asks in the title, but allowing history, legal case authority, and finally quotations drawn from political debates to answer the question for the reader. Of course, it is not difficult to see her position in the choices she makes about what history to tell, which legal opinions to quote, and which politicians to remember. What comes through loud and clear is that if the question concerns praying in public school, her answer is "No."

Flowers is more frank. He comes out in a similar place, where the wall of separation between church and state is high and impenetrable. He writes in his epilogue:

The Court, by its very nature, is neither godly nor godless. It is, rather, an institution of a secular state.... The Supreme Court has the responsibility to maintain between church and state a relationship by which the state maintains the most benevolent attitude toward religion by keeping its distance from it. That may appear to the hyper-pious to be "godlessness" but in reality it is the best for religion in all the forms it has taken in the fertile minds of men and women.

So while Fenwick the lawyer is more subtle, Flowers the preacher makes it quite clear: The Supreme Court has drawn a careful line between church and state, and Christians who take history seriously ought to think twice before joining the Moral Majority bandwagon in trying to put prayer back in the public schools. Fenwick takes more time to make the historical case; she provides a much better account of early American history than one finds in current law school texts on the first amendment. The survey is concise and yet detailed, offering many interesting and important tidbits on the early history of each colony. She reminds us that while many came to establish their own religious societies, many others came who did not have religion on their minds, or who at least saw a need for religious freedom for everyone. Fenwick disabuses us of any notion that early Americans were unified in their religion or that they simply assumed Puritan Christianity would be taught in public schools. In fact, she observes (chap. 9) that just 10% of the people in the colonies were religious prior to the Great Awakening-part of her argument that religions flourished in America precisely because there was no one established religion.

Fenwick next takes us through Virginia religious history and describes the role that James Madison played in orchestrating religious freedom. She argues that Madison was contemplating a broad-based freedom of conscience provision when the issue of religious freedom was being debated. She contends that the original intent of the drafters of "no establishment of religion" included protection for atheists. Of course she has difficulty here in that the language settled upon did not explicitly protect atheists but only prohibited the establishment of one religion. It did not address the question of religion versus no religion.

After describing the history of the adoption of the first amendment (again "objectively" making her point that no establishment of religion meant no religion at all), Fenwick turns to case authority, quoting the judicial opinions that gave birth to the current separation stance in the courts. Throughout this section she reminds us that the "majority" religious group was never the majority during colonial times, nor was it likely that they would always be the majority in the future; therefore, they ought to be careful when proclaiming the power of the majority to justify prayer in the public schools. Her selections consistently make the point that being "for" prayer does not answer the question what the prayer will say, nor whether the prayer will satisfy anyone. She also indicates the dangers of the state being in the business of arbitrating what the prayer will be.

The case Fenwick makes is a valuable and important corrective to those who would rush to bring back prayer and who link the moral decay of society to the elimination of prayer from the schools. …