Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Griffin is author of Law and Religion: Cases and Materials (4th edition, 2017) and Practicing Bioethics Law (2015). She holds a Ph.D. in religious studies from Yale University and a J.D. from Stanford Law School.
President Trump recently announced “historic steps to protect the First Amendment right to pray in public schools. So you have the right to pray. And that’s a very important and powerful right. There’s nothing more important than that, I would say.”
In making the announcement, Trump observed that school members all around the country are being stopped from praying. He criticized “a growing totalitarian impulse on the far left that seeks to punish, restrict, and even prohibit religion expression.” In his words, “The right of students and teachers to freely exercise their faith will always be protected, including the right to pray.”
President Trump has forgotten that religious freedom is supposed to protect everyone, right, left, and center, people of all different religions and of no religion. Sponsored public prayer does not do that. It protects only those who want to pray, usually only those who want to pray a Christian prayer. The president should have said that the private right to pray, or not to pray, voluntarily, belongs to left, right, and center. But teachers and students, even the strongest believers, should never use their right to pray to influence others to religion.
Some lawsuits defend students who do not want to be forced into prayer. In Butler v. Smith County, for example, students and their parents complained that the school sponsored Christian prayer and their teachers proselytized Christianity, even though the Tennessee county is “religiously diverse,” with Muslim and atheist as well as Christian students. They argued, correctly, that, “the First Amendment guarantees that public-school students have an unequivocal right to attend school free from official imposition or promotion of religion.” Yet Trump criticized the lawsuit, suggesting he was taking steps to protect prayer from such attacks.
Trump’s steps require schools to “certify in writing” that they have “no policy that prevents, or otherwise denies participation in, constitutionally protected prayer in public schools.” If the schools fail to so certify, they will lose their money or receive other enforcement of the rules against them.
Those steps protect only one side of the prayer equation, namely people who want prayer in public schools. They do nothing for the students who have the government’s or other individuals’ prayers forced upon them, in a way they have to resist in order to maintain their own religious freedom.
The First Amendment protects voluntary, private prayer in public schools but not officially sponsored prayer or voluntary prayer that disrupts the running of the school or coerces other people. This was the reasoning of the 1962 public-school prayer case, Engel v. Vitale, which ruled that “the Regents’ prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs.”
The government and individuals are still not supposed to coerce religious beliefs. Today, almost sixty years post-Engel, according to the Pew Research Center, the number of Christians has declined 10% over the last decade in the United States. “Meanwhile, the religiously unaffiliated share of the population, consisting of people who describe their religious identity as atheist, agnostic or ‘nothing in particular,’ now stands at 26%, up from 17% in 2009.” In addition to these religiously unaffiliated, usually called the “nones,” the center reports the numbers of non-Christians have also “grown modestly.”
Public schools must be places that support all these people, nones and atheists as well as Muslims, Buddhists, and Hindus. Trump and his rules should have been much clearer in stating that voluntary student prayer must not be silenced but also that school prayer must not be coercive or disruptive. It should have called for announcements from schools protective of both sides of the prayer equation. The right should have a right to voluntary, private prayer outside of school business. The left should have a right not to be surrounded by coercive or influential prayer. The center should remind us that public schools are not supposed to “further religious beliefs.”
Some commentators probably object to Trump’s statement because it is only a small part of his much bigger pro-religion agenda. He has expanded the right of employers to deny contraceptive insurance coverage to their employees. He has broadened the conscience rights of health care providers to deny coverage to patients whom they morally dislike. His Supreme Court justices are increasing the court’s pro-religion stance.
President Trump has forgotten that religious freedom is supposed to protect everyone. As Engel reminded us, the separation of church and state is not hostile to religion. Instead, it protects everyone’s religious freedom by preventing the government from endorsing religion in general or one religion in particular. Trump should have been clearer that the First Amendment is supposed to protect everyone: left, right, and center; believer and non-believer. Every person, not just some of them.