Congress shall make no law respecting an establishment of religion…

Forty-five years ago today, the U.S. Supreme Court ruled that the reciting of state-sponsored prayers in government schools – a matter that should have been left in the hands of the states – was unconstitutional.

The New York State Board of Regents had written a universal prayer and encouraged schools to have students recite it each day: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country. Amen.” Various groups objected to the prayer, challenging its constitutionality.

Although the prayer in question was nondenominational and student participation was voluntary, the court held that it violated the Establishment Clause of the First Amendment to the Constitution. Engel v. Vitale was to become the basis of subsequent cases limiting prayer in government schools.

The case that got the “separation between church and state” ball rolling was Everson v. Board of Education of Ewing Township, decided 15 years earlier. Although the Supreme Court said the reimbursement of parochial school parents was permissible, it was in Everson that Supreme Court Justice Hugo Black, a former Ku Klux Klan member, wrote the infamous line about the First Amendment erecting “a wall between church and state.” Black based this misunderstanding of the Constitution on a letter President Thomas Jefferson had written to the Danbury Baptist Association in 1802, 13 years after the First Amendment was signed.

“[T]he letter concerned not the issue of state establishments, but an explanation why Jefferson did not issue presidential declarations of Thanksgiving and fasting, as Presidents Washington and Adams had done,” writes Kevin R. C. Gutzman, author of The Political Incorrect Guide to the Constitution.

The First Amendment prohibits Congress from establishing a national religion and from interfering in “the religious policy of individual states – including Massachusetts, Connecticut, and New Hampshire – that retained their colonial religious establishments.” As Gutzman illustrates in his excellent book, the Supreme Court usurped the power of the states to govern themselves from the very beginning.

Incidentally, the Fourteenth Amendment, through which the Supreme Court applied the Establishment Clause to the states, was meant to protect freed slaves, not prohibit state and local governments from setting their own religious policies. In fact, the Fourteenth Amendment itself was never ratified by three-fourths of the states and, therefore, is unconstitutional. But that’s another topic for another column.

After Engel, the “wall between church and state” was set in stone. A decade later, the Supreme Court established what’s known as the “Lemon test” for determining if a state law violates the Establishment Clause. In Lemon v. Kurtzman, the court held that as long as a state law has a secular purpose, its primary effect neither advances nor prohibits religion, and that it doesn’t result in excessive church-state entanglement, it does not violate the Constitution.

There are legitimate arguments on both sides of the state-sponsored school prayer debate, but whether or not states can sponsor prayer in school is a matter reserved for the states, not nine, unelected justices in Washington. But pointing out this fact is like the proverbial drop in the bucket. The highest court in the land has been legislating from the bench, telling the people what’s good for them, and getting away with it for decades.