Prayer on Public Property

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m88

The Supreme Court ruled in 1962 that the first amendment is violated by official encouragement of voluntary group prayer in the public schools.¹ Since 1962, it has been impermissible for public school representatives to encourage students to recite prayers on public school property, even on a purely voluntary basis.

Several other courts have applied the Supreme Court's ruling in a variety of circumstances. The Court's specific holding in Engel that no officially prescribed religious exercise can take place on public school property has been affirmed by a number of courts.² State laws and school board regulations that have encouraged the voluntary recitation of the Lord's Prayer have been invalidated on first amendment grounds.³ One court prohibited the voluntary recitation of the following prayer before morning refreshments in public kindergarten classrooms: “We thank you for the flowers so sweet; we thank you for the food we eat; we thank you for the birds that sing; we thank you, God, for everything.”⁴ Another court prohibited the voluntary recitation of a prayer by public school kindergarten students, even though it contained no direct reference to a deity.⁵ A state law authorizing a one--minute period of silence in all public schools for meditation or “voluntary prayer” was invalidated by the Supreme Court in 1985 on the basis of the nonestablishment of religion clause.⁶ A majority of the Court, however, expressed a willingness to uphold “moment of silence” laws (even those specifically including silent prayer as a permitted or suggested activity) so long as the language and legislative history of the law, and its actual implementation, do now suggest a preference for prayer. Presumably, several of the 25 state moment--of--silence laws currently in effect would be permissible under this test.

The courts have been more tolerant of prayer in public high schools and on the public university campus. In 1990, the Supreme Court upheld the constitutionality of the “Equal Access Act,” which prohibits public high schools from denying any group access during noninstructional hours to school facilities if the same right is given to any noncurriculum related student groups.⁷ The Equal Access Act provides:

It shall be unlawful for any public secondary school which receives federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.⁸

A “limited open forum” exists whenever a public high school “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.” A school is deemed to offer a fair opportunity to students wishing to conduct a meeting on school premises during noninstructional hours if it uniformly provides that (1) the meeting is voluntary and student--initiated; (2) there is no sponsorship of the meeting by the school; (3) employees or agents of the school are present at religious meetings only in a nonparticipatory capacity; (4) the meeting does not materially interfere with the orderly conduct of educational activities within the school; and (5) nonschool persons may not direct, conduct, control, or regularly attend activities of student groups.⁹ However, the assignment of a teacher, administrator, or other school employee to a meeting for custodial purposes does not constitute impermissible sponsorship. The term noninstructional time refers to time set aside by the school before actual classroom instruction begins or after actual classroom instruction ends.

The Supreme Court began its opinion by noting that the critical question is whether or not a public high school permits “noncurriculum related” student groups to use school facilities during noninstructional hours. If it does, then the school has created a “limited open forum” and the Equal Access Act prevents school officials from denying any other student group access to school facilities during noninstructional hours on the basis of the content of its speech. The Court concluded:

[W]e think that the term “noncurriculum related student group” is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school. In our view, a student group directly relates to a school's curriculum if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; if the subject matter of the group concerns the body of courses as a whole; if participation in the group is required for a particular course; or if participation in the group results in academic credit. We think this limited definition of groups that directly relate to the curriculum is a common sense interpretation of the Act that is consistent with Congress' intent . . . . For example, a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future. A school's student government would generally relate directly to the curriculum to the extent that it addresses concerns, solicits opinions, and formulates proposals pertaining to the body of courses offered by the school. If participation in a school's band or orchestra were required for the band or orchestra classes, or resulted in academic credit, then those groups would also directly relate to the curriculum. The existence of such groups at a school would not trigger the Act's obligations.

On the other hand, unless a school could show that groups such as a chess club, a stamp collecting club, or a community service club fell within our description of groups that directly relate to the curriculum, such groups would be “noncurriculum related student groups” for purposes of the Act. The existence of such groups would create a “limited open forum” under the Act and would prohibit the school from denying equal access to any other student group on the basis of the content of that group's speech. Whether a specific student group is a “noncurriculum related student group” will therefore depend on a particular school's curriculum, but such determinations would be subject to factual findings well within the competence of trial courts to make.¹

Public high school officials in the Mergens case had attempted to bar religious groups by claiming that the school had not created a limited open forum since all non--religious groups were curriculum related. To illustrate, the school contended that all of its 30 non--religious student groups were curriculum related because they furthered the general educational goals of the school. The student government club “advances the goals of the school's political science classes,” the scuba club “furthers the essential goals of the physical education department,” the chess club “supplements math and science courses,” and the junior rotarians “promote effective citizenship—a critical goal of the social sciences department.” The Court rejected this analysis, noting that

[a]llowing such a broad interpretation of “curriculum related” would make the [Act] meaningless. A school's administration could simply declare that it maintains a closed forum and choose which student clubs it wanted to allow by tying the purpose of those clubs to some broadly defined educational goal. At the same time the administration could arbitrarily deny access to school facilities to any unfavored student club on the basis of its speech content. This is exactly the result that Congress sought to prohibit by enacting the [Act]. A public secondary school cannot simply declare that it maintains a closed forum and then discriminate against a particular student group on the basis of the content of the speech of that group.²

The Court concluded that the school had a number of noncurriculum related student groups under the test that it announced. Examples cited by the Court included the scuba club and chess club. It did not evaluate any other clubs, but hinted that a number of the other groups also would be noncurriculum related. Because the school clearly allowed one or more noncurriculum related student groups to meet during noninstructional hours, it had created a limited open forum and could not discriminate against students wanting to meet for religious purposes.

The Court acknowledged that a school wishing to avoid the obligations of the Equal Access Act could do so by “structuring its course offerings and existing student groups to avoid the Act's obligations.” In other words, a school could eliminate all student groups that are not directly related to courses offered at the school. A school that took such action would avoid creating a limited open forum and accordingly it would have no legal obligation to permit student religious groups to meet. The Court refused to decide whether student groups have a constitutionally protected right to meet on public high school property.

The Act does not apply to student groups that meet during regular classroom hours. It only applies to schools that permit student groups to meet before or after regular classroom hours.

The Court rejected the school's argument that the Equal Access Act violated the first amendment's nonestablishment of religion clause. The Court applied its 20--year--old “three--part test” for evaluating the constitutionality of a law challenged under the nonestablishment of religion clause—(1) does it have a clearly secular purpose, (2) does it have a primary effect that neither advances nor inhibits religion, and (3) does it avoid an “excessive entanglement” between church and state? All three of these tests must be satisfied for a challenged law to be constitutional. The Court concluded that all three tests were met—the Act had a “secular purpose” of demonstrating neutrality rather than hostility toward religion, and it did not create an excessive entanglement between church and state. The second test—the primary effect of the law does not advance religion—was the most difficult to answer, but the Court unequivocally ruled that this test was satisfied as well. The school had argued that the Act failed this test since it required public schools to “endorse” religious clubs and provide them with an official platform to proselytize other students. The Court rejected this claim, noting that the message of the Act “is one of neutrality rather than endorsement . . . the [Constitution] does not license government to treat religion and those who teach or practice it . . . as subversive of American ideals and therefore subject to unique disabilities.” Further, the Court observed 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 [of religion] clause protect. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis. . . . [S]chools do not endorse everything they fail to censor.³

The Supreme Court also has recognized the right of students to meet for religious purposes on public university property if the same privilege is granted to non--religious student groups. In 1981, the Court struck down a policy of the University of Missouri at Kansas City that made university facilities available generally to all student groups except those wanting to meet for religious worship and religious teaching.⁴ The Court stressed that if a university regulation excludes any group from meeting solely on the basis of the content of the group's speech, the university must show that the regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. In rejecting the university's claim that the maintenance of a strict separation of church and state constituted a sufficiently “compelling” interest to justify the abridgment of religious expression, the Court observed:

Our cases have required the most exacting scrutiny in cases in which a State undertakes to regulate speech on the basis of content. On the other hand, the State interest asserted here—in achieving greater separation than is already ensured under the establishment clause of the Federal Constitution—is limited by the free exercise clause and in this case by the free speech clause as well. In this constitutional context, we are unable to recognize the State's interest as sufficiently “compelling” to justify the content--based discrimination against students' religious speech.⁵

The Court emphasized that a university can impose reasonable regulations affecting the time and place of group meetings, and can exclude any group that violates reasonable campus rules or substantially interferes with the opportunity of other students to obtain an education. It also held that if a school does not make its facilities available to any student group, it is not required to make them available to religious groups.

Similarly, the Supreme Court of Delaware invalidated an absolute ban by the University of Delaware on all religious activities in school buildings.⁶ The university's ban barred Christian students from meeting periodically in the “commons” rooms of campus dormitories for religious worship. The Court concluded that

the University cannot support its absolute ban of all religious worship on the theory that, without such a ban, University policy allowing all student groups, including religious groups, free access to dormitory common areas would necessarily violate the establishment clause. The establishment cases decided by the United States Supreme Court indicate that neutrality is the safe harbor in which to avoid first amendment violation: neutral “accommodation” of religion is permitted, while “promotion” and “advancement” of religion are not. University policy without the worship ban could be neutral toward religion and could have the primary effect of advancing education by allowing students to meet together in the commons rooms of their dormitory to exchange ideas and share mutual interests. If any religious group or religion is accommodated or benefited thereby, such accommodation or benefit is purely incidental, and would not, in our judgment, violate the establishment clause.⁷

The court distinguished decisions prohibiting religious exercise by public primary and secondary school students on the ground that such decisions did not, like the present case, involve “activity by adult residents of a living complex in common areas generally set aside for the benefit of such residents.”⁸

The permissibility of prayers during public high school graduation ceremonies is a question that has generated several lawsuits. A number of courts have concluded that some form of religious invocation and benediction is constitutionally permissible.⁹ To illustrate, a federal appeals court ruled that invocations and benedictions are constitutionally permissible if they are similar to the “civil invocations or benedictions used in public legislative and judicial sessions.”¹⁰ Permissible invocations, noted the court, would be nonsectarian, nonproselytizing, and solemnizing. Invocations and benedictions that would not be permissible employ the language of Christian theology and prayer, and invoke the name of Jesus Christ as the Savior. Such language “symbolically places the government's seal of approval on one religious view—the Christian view,” and is therefore impermissible.

A California state appeals court ruled that invocations and benedictions at public high school graduation ceremonies do not violate the first amendment's “nonestablishment of religion” clause.¹¹ The court noted that a governmental practice (such as prayer on public property) that allegedly violates the nonestablishment of religion clause will be sustained only if it has a secular purpose, a primary effect that neither advances nor inhibits religion, and results in no excessive entanglement between church and state. The court concluded that the invocations and benedictions satisfied all three parts of the test and accordingly were constitutionally permissible. First, the court concluded that the practice of reciting invocations and benedictions at public high school graduation ceremonies had the “secular effect” of “solemnizing public occasions, expressing confidence in the future, and encouraging the recognition of what is worthy of appreciation in society.” Second, the court concluded that the “primary effect” of the invocations and benedictions was not the advancement of religion, since any benefit to religion was “remote and incidental.” Finally, the court concluded that the invocations and benedictions create no “excessive entanglement” between church and state. The court emphasized that “we find only nonsectarian invocations and benedictions constitutional.

Other courts have concluded that prayers at public high school graduation ceremonies violate the first amendment's nonestablishment of religion clause. To illustrate, a federal court in Rhode Island ruled that invocations and benedictions at public high school graduation ceremonies are unconstitutional if they refer to God.¹² A public high school planned to have a local rabbi recite an invocation and benediction at a high school graduation. The prayers were consistent with a set of guidelines on “public prayer in a pluralistic society” prepared by the National Conference of Christians and Jews. Nevertheless, a student and her parents sought a court order prohibiting the prayers on the ground that they would violate the first amendment's “nonestablishment of religion” clause. The court, in granting the order barring the prayers, noted that

the Supreme Court has steadfastly required that the schoolchildren of America not be compelled, coerced, or subtly pressured to engage in activities whose predominant purpose or effect was to advance one set of religious beliefs over another, or to prefer a set of religious beliefs over no religion at all. God has been ruled out of public education as an instrument of inspiration or consolation.¹³

The court noted that the practice of uttering prayers at high school graduations had to be evaluated under the three--part test announced in 1971 by the Supreme Court. Under this test, the practice is permissible only if has a secular purpose, a primary effect that neither advances nor inhibits religion, and does not created an “excessive entanglement” between church and state. The court concluded that the prayers had a primary effect that advanced religion, and therefore would violate the constitution. It observed: “[T]he benediction and invocation advance religion by creating an identification of school with a deity, and therefore religion. The invocation and benediction present a symbolic union of the state and schools with religion and religious practices.” In rejecting the argument that prayers on graduation day should be permitted because of the special nature of the day, the court observed that “on every other school day, at every other school function, the [nonestablishment of religion clause] prohibits school--sponsored prayer. If the students cannot be led in prayer on all of those other days, prayer on graduation day is also inappropriate . . . .”

The court also rejected the argument that the prayers were permissible because they were nondenominational—“it is of no significance that the invocation and benediction are supposed to be nondenominational, or that participation or even recognition of the prayers is voluntary.”

The court emphasized that its ruling did not prohibit public school children “from voluntary private prayer at any time before, during, or after the school day, or anytime during the graduation ceremonies.” And, “nothing in this decision prevents a cleric of any denomination or anyone else from giving a secular inspirational message at the opening and closing of the graduation ceremonies.” The court noted that the rabbi's prayer would have been permissible had it eliminated any reference to God. The court lamented that

an unacceptably high number of citizens who are undergoing difficult times in this country are children and young people. School--sponsored prayer might provide hope to sustain them, and principles to guide them in the difficult choices they confront today. But the constitution as the Supreme Court views it does not permit it. Choices are made in order to protect the interests of all citizens. Unfortunately, in this instance there is no middle ground. . . . Those who are anti--prayer thus have been deemed the victors. That is the difficult but obligatory choice this court makes today.¹⁴

Similarly, a California appeals court ruled that the inclusion of a religious invocation in a public high school graduation ceremony violated state and federal constitutional provisions prohibiting the establishment of religion.¹⁵ The inclusion of invocations at public high school graduation ceremonies violated all three parts of the Supreme Court's three--part test for evaluating the permissibility of challenged practices under the first amendment's nonestablishment of religion clause. The court also observed that “the citizens of this country, and perhaps of this state in particular, are a people of highly diverse cultural, ethical and religious backgrounds,” and that “any religious invocation...therefore almost certainly will not comport with the beliefs of a number of those persons present, and may in fact be offensive to some.” Freedom to believe and to worship, concluded the court, “includes the freedom not to engage in the religious practices of the majority.”

A federal appeals court ruled that invocations delivered before public high school football games violate the nonestablishment of religion clause.¹⁶ Between 1947 and 1986, a Protestant minister delivered an invocation prior to home games at a public high school in Georgia. When a parent complained that this practice violated the first amendment, the school adopted an “equal access” plan whereby invocation speakers were selected randomly among students, parents, and faculty. Ministers were no longer eligible to give invocations. Even this plan was not acceptable to the complaining parent, who filed a lawsuit challenging the constitutionality of the modified “equal access” plan. A federal district court ruled that the equal access plan was not unconstitutional “on its face,” and the parent appealed to a federal appeals court.

The appeals court concluded that the equal access approach to pregame invocations violated the nonestablishment of religion clause since it violated both the first and second parts of the Supreme Court's three--part test announced in the Lemon case. ¹⁷ The court observed that the school's refusal to employ “wholly secular invocations makes it very clear that [its] actual purpose in having pregame invocations was religious.” It added that “the conclusion is inescapable that the religious invocation conveys a message that the school endorses the religious invocation.” Further, “the equal access plan places those attending football games in the position of participating in a group prayer.” The school defended the legality of the equal access plan on the grounds that the invocations (1) “occur outside the instructional environment of the classroom,” (2) “do not invoke the teacher--student relationship,” (3) “are given at public events at which attendance is entirely voluntary,” (4) “constitute a de minimis [i.e., insignificant] violation of the establishment clause because they last 60 to 90 seconds,” and (5) are similar to the Nebraska practice of opening all sessions of the state legislature with prayer—a practice upheld by the United States Supreme Court in 1983. The appeals court rejected all of these contentions.

The Supreme Court has ruled that it is permissible for state legislatures to select and compensate legislative chaplains,¹⁸ and other courts have approved congressional chaplains¹⁹ and the practice of opening county board meetings with prayer.²⁰

The Right to Witness

Display of Religious Symbols on Public Property

Use of Public Property for Religious Purposes

Sunday Closing Laws

The Right to Refuse Medical Treatment

Definition of “Religion” and “Religious”