Give them points for creativity. Last week, the Alabama House Education Policy Committee advanced an unusually clever proposal to mandate state sponsored prayer in public schools. Though the proposal’s gambit is unlikely to survive judicial review, it essentially tries to hack the Constitution by dressing up school prayers as if they were something else.
School sponsored prayer in public schools is unconstitutional. As the Supreme Court explained in 1962, “government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity.” Twenty-one years later, however, the Court’s opinion in Marsh v. Chambers created a carve out to this rule for prayers at the opening of a legislative session. The Alabama bill looks at Marsh and sees an opportunity to sneak school prayer in through a constitutional back door:
At the commencement of the first class of each day in all grades in all public schools, the teacher in charge of the room in which such class is held shall, for a period of time not exceeding 15 minutes, instruct the class in the formal procedures followed by the United States Congress. The study shall include, but not be limited to, a reading verbatim of one of the opening prayers given by the House or Senate Chaplain or a guest member of the clergy at the beginning of a meeting of the House of Representatives or the Senate.
Again, this is really clever stuff — and it certainly exposes the absurdity of a constitutional regime that treats prayers as magically immune to the Constitution simply because they are uttered in a legislature — but the Alabama bill is not quite clever enough to be constitutional. Marsh rested its decision in part on the fact that “the individual claiming injury by the [legislative prayer] is an adult, presumably not readily susceptible to ‘religious indoctrination,’ or peer pressure.” The same cannot be said about grade school children in Alabama.
Significantly, the justice most likely to resolve any disagreements on the Supreme Court regarding church and state separation issues, Justice Anthony Kennedy, has also indicated that he views school prayer very differently than legislative prayer or other largely ceremonial governmental acknowledgements of religion. “[R]eligious invocations in Thanksgiving Day addresses and the like, rarely noticed, ignored without effort, conveyed over an impersonal medium, and directed at no one in particular,” he wrote in Lee v. Weisman, “inhabit a pallid zone worlds apart from official prayers delivered to a captive audience of public school students and their families.”
So the Alabama bill, no matter how devious its design, remains unconstitutional.