Governor Rick Perry remains a potential 2016 presidential candidate, and he just made a rousing speech at the CPAC conservative conference. Perry will almost certainly be ready to go, especially if other potential candidates fall off. One of his central themes has always been that he is Fed Up—the name of his book—with the federal government going beyond the powers it was granted in Article I, and imposing what amount to foreign views on state and local governments. Illustrative is his stand on public school children saying prayer in school each day. He would have the Supreme Court reverse ground, recognizing the authority of states to secure what should be a basic right of parents and children: the right to pray in school. And if the Court will not reverse ground, Perry advocates amending the Federal Constitution to recognize this as a basic constitutional right. So he is convinced that the national decision to end public school prayer not only misreads the Constitution and overrides what should be a local decision, but also robs Americans of their right to establish their own relationships with God. The net result, says Perry, is that we reinforce the modern tendency to embrace secularism and moral relativism.
Perry’s position reminds us that the conservative movement’s invocation of the original intentions behind the Constitution is often enough used as a junk argument. The religion clauses of the First Amendment have been applied to the states for over 60 years, and even self-proclaimed originalists on the Supreme Court do not advocate reversing those many years of well-established precedent. No one, moreover, ever contended that the interest of parents or children to have daily prayer recitation in public school constituted a constitutional right. The cases, moreover, forbidding prayer recitation as a “school program” says nothing at all about the right of school children to say their own prayers—over their own lunch, or a school test, as examples.
At least as central, Perry’s position illustrates a great deal about the much ballyhooed Republican defense of religious liberty. Perry himself objects strenuously to “Obama’s war on religion,” and he has strongly opposed “liberal attacks on our religious heritage.” It is certainly true that the First Amendment guarantees that all Americans have a constitutional right to the “free exercise” of religion. But from the beginning this has been understood to secure the equal treatment of every religion and all religious citizens; a powerful underlying assumption was that we needed to honor the fact that we were, and are, a religiously pluralistic nation. Even prior to adoption of the federal Bill of Rights, the Constitution had stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” U.S. Const. art. VI. Several states had required you to be a Christian, or even a Protestant, to hold public office in their state, and the framers of the United States Constitution wished to take religious freedom more seriously than that. Today, perhaps more than ever, we live in a dramatically pluralistic world on the subject of religion. In such a world, it is difficult to imagine a greater threat to religious liberty than a local or state rule that would require each public school student to orally recite a prescribed prayer to God. In the effort to reconcile the perceived need for public school prayer with this well-known phenomenon of religious pluralism, the only attempted answer devised by government officials has been to prescribe a least-common-denominator prayer—viewed by many as watered down—so as to avoid prescribing words that would thoroughly offend some members of any school class.
Consider this “apocryphal,” though I have been assured quite true, story. President David O. McKay was the leader of the LDS church when Engel v. Vitale, the “school prayer” decision viewed as “infamous” by Perry, was decided. His initial response was to lament that the Supreme Court had chosen to “remove” God from the public schools. Then a member of the local law faculty showed President McKay the language of the prayer that New York required public school children to recite each and every day, and he inquired: do you want to require all the school children in this state to say this prayer? The prayer read: “Almighty God, we acknowledge our dependence on thee, and beg thy blessings upon us, our parents, our teachers, and our country. Amen.” President McKay studied the prayer for a few minutes, and then he stated: “I can see that I have been deceived.” Members of McKay’s religious tradition are taught to pray to God the Father and to close the prayer in the name of Jesus Christ, His son. Although the New York prayer had to be so written to be sufficiently inclusive, the “prayer” set forth above, and required to be recited every day, was virtually not even a prayer from a full-blown LDS perspective. One of the purposes for separating church and state was to avoid effectively undermining authentic religion when the two were combined.
In the community of law and religion scholars—those who teach the First Amendment religion clauses to law students—some are more “secular,” and some are arguably more “pro-religion.” But of the many I’ve spoken with, virtually all have agreed that the modern prohibition on school prayer in compulsory schools of public education is the only path to further genuine religious freedom. The alternatives either violate the principle of denominational neutrality, a principle universally agreed to be central to religious freedom, or water down how individuals engage in religious worship as required by their own religious conscience. When one considers that it is universally agreed as well that individual students are quite free to offer their own, private prayers, even during the regular school day, and that courts have even upheld moments of silence that provide time for students to ponder and/or pray, there really is no reason to think that the modern church/state rulings of the Supreme Court in any way embody a “war on religion.”
Rick Perry’s difficulty, however, is not limited to the failure adequately to support religious freedom, properly understood. On one occasion, he offered that “there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.” Governor Perry is not only insufficiently committed to equal freedom of religion, he wrongly thinks it legitimate to impose his own religiously-grounded homophobic views on the rest of the country. Under the First Amendment, Perry is entitled to hold such views, but that doesn’t establish whether the policies he advocates are constitutionally acceptable. The most demonstrable purpose of the Fourteenth Amendment was to forbid states to turn any group of citizens unfairly into second class citizens—as the Southern states had done with the emancipated former slaves. Governor Perry is losing the political fight over whether banning same-sex marriage does precisely that—but that doesn’t turn his political opponents into warriors against God and religion.
A fellow conservative, Justice Sandra Day O’Connor, joined the Court’s ruling that anti-sodomy legislation aimed at gay Americans violated the Fourteenth Amendment. She found the law impossible to reconcile with the equal citizenship of the gay community. She undoubtedly would have joined the members of Congress who voted to repeal Don’t Ask, Don’t Tell. Yet, ironically enough, Perry’s fellow Republican, and supposed “libertarian,” Paul Ryan, actually voted against the repeal of don’t ask, don’t tell. The governor’s fellow citizens, including Justice O’Connor, are on the same general path by which the widespread acceptance of slavery was eventually turned into the constitutional amendment of emancipation. We needed to realize that the political principle of recognizing human equality applied to African Americans as much as to whites; we are now going through a similar process as to the equal rights of gay Americans. Perry does not advocate religious freedom; he advocates repression of those who disagree with his religion. Religious Americans who are committed to protecting both equal citizenship and equal religious freedom will find it difficult to support Governor Perry.