May 30th, 2008

From THE COURT AND THE CROSS, Fred Lane’s New Book On the Supreme Court

by Philip Baruth

While a lot of my friends write books, very few write books on politics. So when that happy coincidence does occur, I’m always psyched to sit down with the book in question. The Court and the Cross is the latest work by Fred Lane, a Burlington writer who has quickly made himself a national authority on issues from workplace privacy to the Right’s war against obscenity. Here Lane puts his finger on issue #1 for November: the tilt of the Supreme Court. —PB

Of Prayers and Proselytizing

While the debate over what can be taught in public school classrooms (particularly science) is perhaps the longest-running battle between secularists and the Christian Right, the battle over prayer in the public schools is easily the most intense.

The rulings by the Supreme Court that declared government-sponsored prayer and moments of silence unconstitutional are routinely cited by Religious Right leaders as the cause of most of the nation’s social ills.

In the wake of the tragic 1999 shooting at Columbine High School near Littleton, Colorado, for instance, Jerry Falwell described the Supreme Court’s decision to ban state-sponsored prayer as “one of the greatest mistakes in our nation’s history,” adding that he believed the ruling “was our nation’s first step toward our present-day environment of violence and disregard for life.”

Falwell’s comments, however were mild compared to those of his fellow televangelist and former Republican presidential candidate Pat Robertson, who told his 700
audience the morning after the shootings:

When the Supreme Court of the United States of America insulted Almighty God, and said our Constitution wouldn’t permit children to pray in the schools, and when we lifted the religious restraints off of our society in that fashion and suddenly the worship of God becomes unconstitutional, and the thought that we would have an even hand between atheism and theism in society, it has begun a spiral that hasn’t stopped yet.

You say, why are kids killing themselves, and why are they killing each other? Well, you just look back about thirty-some years and you find, in my opinion, the principal reason.

But Robertson did not accurately describe the Supreme Court’s ruling. The Supreme Court never declared the worship of God unconstitutional; what the Court said was that the government cannot draft a prayer and require children of all faiths (as well as nonbelievers) to sit and listen to it each morning before the start of school.

The much-despised case to which Robertson was referring, Engel v. Vitale (1962), involved a challenge by a group of parents in Hyde Park, New York, to the daily recitation of the following prayer in the public school: “Almighty God, we acknowledge our dependence upon Thee and we beg Thy blessings upon us, our parents, our teachers, and our country.”

Twenty-two states filed amicus curiae briefs supporting the State of New York, and the Supreme Court received thousands of letters asking it to uphold prayer in school. But the Court firmly rejected the New York prayer, voting 6-1 that the prayer was “composed by government officials as part of a governmental program to further religious beliefs.”

Writing for the majority, Associate Justice Hugo Black said that New York had violated the First Amendment prohibition against the establishment of religion. The establishment clause, Black said, has two main purposes: “Its first and most immediate purpose rest[s] on the belief that a union of government and religion tends to destroy government and to degrade religion.” The “inevitable result” of an alliance between government and religion, Black wisely noted, is “the hatred, disrespect, and even contempt of those who [hold] contrary beliefs.”

The second purpose of the establishment clause, Black said, is to avoid the tendency of governmentally established religions to result in religious persecution.

As he pointed out, England’s Act of Uniformity of 1559, which made it a crime for individuals to attend any religious service other than the Church of England and fined those who did not go to church weekly, was passed just a few years after Elizabeth I declared the Book of Common Prayer the only acceptable form of religious service. (The passage of the Act of Uniformity was one of the things that eventually led the Puritans to flee England and, eventually, brave the Atlantic crossing to America.)

The conclusion of Justice Black’s opinion rejected the persistent argument that the Court was demonstrating hostility to religion or prayer by declaring the New York statute unconstitutional. “Nothing, of course, could be more wrong,” Black said:

It is neither sacriligious nor antireligious to say 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 those the people choose to look to for religious guidance.

Notwithstanding the clarity and thoughtfulness of Black’s opinion, the decision by the Court was greeted with cries of outrage from members of Congress and much of the public.

The Court, however, did have some influential backers. At a news conference a few days afterward, the first question posed to President John F. Kennedy asked for his reaction to the school prayer decision. Kennedy, the nation’s first Roman Catholic president, said that he hoped people would support the Supreme Court, even if they disagreed with the decision, given the Court’s valuable role in preserving the country’s constitutional system.

And for those who do disagree, Kennedy said, “We have in this case an easy remedy, and that is to pray ourselves. And I would think it would be a welcome reminder to every American family that we can pray a good deal more at home, we can attend our churches with a good deal more fidelity, and we can make the true meaning of prayer much more important in the lives of all our children.”


Frederick Lane is an expert witness, lecturer, and author who has appeared on The Daily Show with Jon Stewart, CNN, NBC, ABC, CBS, the BBC, and MSNBC. His next book will be People in Glass Houses: American Law, Technology, and the Right to Privacy (Beacon 2009). For additional information, please visit

Reprinted from The Court and the Cross: The Religious Right’s Crusade to Reshape the Supreme Court
By Frederick S. Lane
Copyright (c) 2008 by Frederick S. Lane
By permission of Beacon Press.