It's Not About School Prayer

The question of school prayer has been moved from one of the storage rooms way beyond the wings to somewhere prominently on stage, if not front stage and center. The most important thing about the discussion of a school prayer amendment is not school prayer as such. People of eminently good sense and religious conviction can disagree about whether there should be prayer in public schools and, if so, what kind of prayer and who should be in charge of it. Those decisions should be made by thousands of communities and local school boards across the country. That is called democracy. An amendment is needed not to mandate or even to encourage school prayer but to restore to the people their right and responsibility to deliberate and decide a question that bears upon the kind of education they want for their children. Parents who are serious about the moral and religious formation of their children should have no illusions that adding a prayer at the beginning of the school day will achieve that goal.

Public policy should help such parents send their children to schools that share their educational goals. This means school vouchers, education tax credits, flexible charter schools, or other instruments that can enable parents to exercise real choice in education. That, however, does not obviate the need for a school prayer amendment, which might better be called an educational democracy amendment. Quite apart from the merits or demerits of prayer in public schools, an amendment is needed for three reasons. First, it is a necessary check upon the overreach of the imperial judiciary. The school prayer decisions of the early 1960s were a particularly blatant instance of judicial activism. The Constitution neither mandates nor prohibits prayer in the schools. What the Constitution says about school prayer is absolutely nothing. For almost two centuries nobody thought that school prayer was a constitutional question.

It was up to local communities and their school boards. (Some scholars claim that a fairly small percentage of public schools actually had such prayer.) That is the way it should be again. Those who claim that the American people are not capable of deciding the question in a civil and mutually respectful manner reveal an unseemly contempt for the democratic process. Our point, however, is that what the Constitution does not say is unconstitutional is not unconstitutional. The Constitution does not say that prayer in the public schools is unconstitutional, therefore it is not unconstitutional. One may argue that school prayer is unfair, divisive, mischievous, or just plain dumb. But it is not unconstitutional, and apparently it will take an amendment to make that clear. The second reason for an amendment is that it will challenge the judicial advancement of the pernicious ideology of the naked public square, of American public life denuded of religion and religiously grounded values.