School Prayer and the Pledge of Allegiance: Constitutionality

Since 1962, the Supreme Court's rejection of school prayer has rested upon its interpretation of the First Amendment. That interpretation has hardly varied, even in the face of public outrage, political opposition, and scholarly criticism. The court's decisions have remained largely consistent across several cases for four decades.

As one of the constitution's most powerful and sweeping guarantees of freedom, the First Amendment is generally thought to contain two contrasting principles with respect to religion. These are announced in the opening words of the amendment, which contains two clauses: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." In constitutional law, the first clause is referred to as the Establishment Clause, and the second as the Free Exercise Clause.

Broadly general in their language, the two clauses say nothing more—and neither does the Constitution itself—about how to apply them. Thus their practical meaning is chiefly known through the ways courts interpret them in individual cases. Under the Establishment Clause, courts have generally held that government is forbidden to enact laws aiding any religion or creating an official religion. Under the Free Exercise Clause, courts have usually held that government is also forbidden to interfere with an individual's free exercise of religion, including the areas of belief, practice, and propagation.

Both principles require a position of government neutrality toward religion but of a different and seemingly contradictory kind. In practice, the two principles easily overlap. Advocates of school prayer have long argued that banning the practice is a violation of religious freedom guaranteed by the Free Exercise Clause. Opponents have argued that the rights to free exercise are outweighed by the prohibition laid out in the Establishment Clause. How the tension between these principles is resolved lies at the heart of the school prayer ban.

In school prayer cases, the Supreme Court has repeatedly given the Establishment Clause precedence. From the earliest case, Engel v. Vitale, the Court has held that public school prayer is "wholly inconsistent" with the Establishment Clause. The majority opinion went out of its way to stress that the Court did not oppose religion itself. Instead, the opinion stated that "each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance."