Russell and Duenes

Muslim Prayer in Public Schools and the Law

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muslimprayersBy way of introduction, the law should, in my view, tell the government to get out of the business of providing education explicitly. I take the words of the third article of the Northwest Ordinance in their plain sense: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall ever be encouraged.” Larry P. Arnn, Liberty and Learning, 81 (Hillsdale College Press 2004) (italics mine). To “encourage” education does not mean to “administer” it, and I think there are powerful and practical ways that the government can “encourage” education without directly administering it. I take this view because I accept a much broader meaning of the term “religion” than do our courts (and than do the majority of Americans, including religious Americans). I think it is precisely because the Supreme Court takes a narrow and reductionistic view of “religion,” and its central place in any educational scheme, that it will struggle even more in drawing appropriate lines as more devout Muslims, Hindus, Buddhists, Christians and others continue to show up at our shores. Yet it is clear that government-sponsored education is not headed for extinction any time soon, so my proposed solution to the issue of Muslim prayers in public schools must grapple with our educational system as it currently exists.

The Court’s struggle to find the right words with which to draw appropriate lines on the Religion Clauses of the First Amendment points up what I believe is a larger problem in jurisprudence, particularly jurisprudence of the positivist bent. The problem, at least with respect to religious expression in schools, is that education, by its very nature, is religious and cannot be otherwise. The lines the Court does draw, in my view, will be always be on a continuum. They will also be arbitrary. This is because the Court is working on a foundation of the false dualism it accepts within the educational realm, as though the promotion and impartation of knowledge, wisdom, skill and character – which are the central tasks of education – could be split off into separate compartments called “religious” and “secular.” Surely it is incumbent upon the Court not only to draw the line between “religion” and “State,” but between “religion” and “nonreligion.” I do not think positivists have sufficiently developed the legal terminology with which to do this, which is largely why I think the Court uses so many different terms in drawing lines. (The Supreme Court has employed a vast terminology in adjudicating the proper “Church-State” relationship mandated by the Religion Clauses, to wit: “Secular purpose,” Roberts, 921 F. 2d at 1053, “entanglement with,” id., “indirect coercive pressure,” Engel, 370 U.S. at 431, “separation,” Roberts, at 1049, “neither advances nor inhibits,” id. at 1053, “aid,” Wallace, 472 U.S. at 53, n. 37, “prefer,” id., “advance,” id. at 56, “entirely motivated by,” id., “neutrality,” id. at 60, “favor,” id., “impede the observation of,” Sherbert, 374 U.S. at 404, “discriminate invidiously between,” id., “burden,” id., “endorsement,” County of Allegheny, 492 U.S. at 578, “favoritism,” id. at 593, “promotion,” id., “taking a position on,” id. at 593-94, “acknowledge,” id. at 631 (O’Connor, J., concurring), “accommodate,” id. (O’Connor, J., concurring), “coerce,” Weisman, 505 U.S. at 587, “indoctrinate,” id. at 591-92, “enforce a religious orthodoxy,” id. at 592, “affiliate itself with,” id. at 599 (Blackmun, J., concurring), “obtrude itself in,” id. (Blackmun, J., concurring), “a complete and permanent separation of the spheres,” id. at 601 (Blackmun, J., concurring), “imprimatur,” id. at 606 (Blackmun, J., concurring),  and “approval,” Id. at 619 (Souter, J., concurring). Doubtless the Court has used other terms as well. This is not simply a “problem of the penumbra,” it is a kind of linguistic jungle.).

The Lemon Test, which states that government action must have “a secular purpose,” creates a raft of problems all by itself. What goes unacknowledged by its assertion that “state action must have a secular purpose,” Roberts, 921 F. 2d at 1053, is that baptizing “secular purposes” is doing the very thing that the Establishment Clause prohibits, namely, establishing a religion. To argue this is not some semantical gamesmanship. Secular agnosticism and/ or secular pluralism, which is what the Lemon Test as applied to government schools invokes, is a kind of religion, for like all religions, it presupposes things about God, about the nature of reality, about the legitimacy of authority, about the destiny of humankind, and about freedom. Further, secular agnosticism is not without de facto religious ceremonies (e.g., diversity celebrations, to give but one example) or de facto high priests (e.g., certain university professors, social commentators, or political officials). Clearly, secularism also retains authorities who – religious magistrate-like – have the power to enforce conformity to its religious norms, such as principals, backed by the force of law, who are able to compel elementary school teachers to keep their Bibles in their desk drawers lest they “teach Christianity.” See Roberts, 921 F.2d at 1056. People object to this line of thinking because they assume that “religion” must go under the name of “religion.”

Yet one need only consider that religiosity has to do with worldviews, and secularism is a worldview, as I have shown. Worldviews are inherently religious, for as I said, they all presuppose things about God, perhaps even presupposing that God does not exist. A secular atheist or agnostic cannot be exempted from the world of “religion” simply because he or she disdains the label and claims no God or gods. This means, however, that the secular non-adherent is also a religious practitioner who deserves constitutional protection under the First Amendment. Her cry of “freedom from religion” is really a cry that her own religious worldview be enforced by government, with all the attendant social, emotional, and psychological benefits she imagines attend to that enforcement. It is time more people, including judges, start to acknowledge this reality. Once they acknowledge it, they can conduct their jurisprudence without continued paeans to a non-existent religious neutrality. This might free the Court up to allow for a more religiously robust culture in the public schools.

To be continued…



Written by Michael Duenes

December 27, 2012 at 5:46 pm

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