Has Alan Dershowitz solved the debate over prayer in public schools?

Alan Dershowitz is a downright legendary Constitutional law professor. He has bravely defended many people’s religious liberties, even when those liberties have (sometimes rightly) offended others. He deserves thanks from millions of Americans for his defense of freedom.

Recently, though, writing on Substack, in response to a plea by New York City Mayor Eric Adams to restore prayer to public schools as one step toward reducing crime, Dershowitz replied: “The suggestion, though doubtless well-meant, is nevertheless unconstitutional. The First Amendment of the United States Constitution reads: ‘Congress shall make no law respecting an establishment of religion …’”

After some discussion, he concluded: “Instead of starting each school day with a prayer, why don't we start each school day with the recitation of the First Amendment? Then the teacher can explain why prayer is a private matter — for the home, the church, or the mind.”

A friend of mine — an outstanding scientist — brought that to my attention, saying the liberal lawyer daughter of a friend of his had responded to it by saying, “I would love that. Good luck getting the evangelical base on board.”

“It seems to me,” my friend added, “that at least some evangelicals might agree with Dershowitz. In many ways, the requirement of rote prayer degrades prayer. Am I wrong?”

It’s a very thoughtful question on a pretty complex issue. Dershowitz’s simple solution seems attractive at first. But deeper consideration suggests that it has some problems.

I suspect, in fact, that lots of evangelicals would agree with Dershowitz, though it would take a properly constructed poll of a representative sample to determine what percentage.

I wouldn’t be among them, for several reasons:

First, the private/public dichotomy has all kinds of problems, starting with how to define each.

It’s pretty clear what “private property” and “public property” mean — the former is property belonging to an individual or group of individuals, and the latter property belonging to a civil government.

Yet we’ve blurred that distinction, leading to all kinds of conflicts, by defining some privately owned property as “public accommodation” and therefore subject to the government’s determining how it can be used rather than the owner’s determining it. No doubt this came from good intentions — we don’t want restaurant owners excluding Blacks, or Native Americans, or Whites, or Jews, or Hindus, or whatever. But that has resulted in lots of legal conflicts that could have been avoided had we left it to private property owners to determine who might come on their property and who might not — and to live with the consequences of, e.g., reduced customer base.

But while it’s pretty clear what “private property” and “public property” mean, it’s not all that clear what it means to call prayer “private.” “Private,” from Latin privare, to deprive, denotes something from which some people are deprived access. But what does it mean to deprive someone of access to prayer?

Second, Dershowitz lists home, church, and mind as “private.” But if prayer is a “private matter — for the home, the church or the mind” — then does that mean it can’t be engaged in outside the home, the church, and the mind, i.e., that while silent prayer (by definition restricted to the mind) might happen anywhere, vocal prayer is permissible only at home or in church? What about in a religious school, hospital, or other institution? What about in a board or employees’ meeting of a privately held non-religious (a troubling term in itself granted that many anthropologists refer to human beings as homo religious because of the universality of religion) business, or in a gathering of members of a sports team or symphony? Or when a first responder volunteering for the local police department, or a sheriff’s deputy, or a government ambulance service EMT reaches an accident scene and, while applying a tourniquet, prays — even, horror of horrors, aloud! — for a victim?

But further, prayer is most certainly an “exercise of religion,” and as Dershowitz certainly knows but didn’t choose to quote in his reply to Mayor Adams, the First Amendment not only forbids the government from making any law “respecting an establishment of religion” but also forbids it to make a law “denying the free exercise thereof.”

Originally, that applied only to Congress, the legislative branch of the federal government, but then, by the “incorporation” theory of the 14th Amendment, it came to be understood to apply to the state, county, and municipal legislatures as well — a dubious expansion that undoubtedly departs from the intent of the authors of the First Amendment, since after all when they wrote it and the states adopted it, 9 of the 13 states had established churches.

At any rate, prayer being an exercise of religion, it’s abundantly clear that, whether restricted to Congress as the legislative body of the federal government or expanded to apply to state, county, and municipal legislatures, the First Amendment was never intended to prohibit prayers as part of government functions (regardless how wise or foolish someone thinks it might be to use them in such settings). And the fact that all kinds of governmental meetings, from Congress (e.g., the U.S. House of Representatives’ Chaplain opens each day with prayer, as does the Senate’s Chaplain) down to town councils, have begun with prayers, even down to today, indicates that even now Constitutional law doesn’t forbid prayer in meetings of government bodies. Indeed, at the start of each session of the Supreme Court the Marshall recites this prayer: “God save the United States and this Honorable Court!”

But restricting prayer to “home, church, and mind” is certainly “denying the free exercise thereof.” One should not have to forfeit the free exercise of religion in order to hold a government office.

Those issues aside, does the requirement, in any setting, of “rote prayer” degrade prayer? Well, by definition “rote” is “the use of memory usually with little intelligence” or “mechanical or unthinking routine or repetition,” and as such it degrades prayer (or any other expression). Thus, Jesus said, “And when you are praying, do not use meaningless repetition as the Gentiles do, for they suppose that they will be heard for their many words” (Matthew 6:7).

But recitation of prescribed prayer needn’t be rote, as the history of prayer in every religious tradition, whether Jewish, Christian, Muslim, Hindu, etc., sufficiently reveals. One may recite a prescribed prayer thoughtlessly, or thoughtfully. What degrades prayer is not using prescribed words but thoughtlessness, whether extemporaneous or recitative, whether vocal or silent.

I strongly suspect that “God save the United States and this Honorable Court” is typically said as “rote” prayer, so perhaps that does degrade it. But, who knows, maybe sometimes the Marshal who recites it really believes and means it. If he does, does that violate the establishment clause?

Frankly, I think those worried that permitting vocal prayers in public schools are afraid they might actually have some effect. They see such prayers as a threat to their own secularism.

Is secularism religious? Certainly. It has its own views about God (there is none), the universe (it sprang out of nothing by chance in the Big Bang), man (not different in principle from amoebas), morality (there are no absolutes), and the afterlife (there is none). “In an often cited footnote to a 1961 decision, Torcaso v. Watkins, in 1961, the Supreme Court listed Secular Humanism as one of several non-theistic religions practiced in this country.”).

Others of a more traditional religious persuasion might see prayer in public schools as a threat to the faith of their children, or whatever. I don’t see any particular reason why the government should kowtow to their fears by denying the free exercise of religion for everyone else — while establishing non-theistic religion by doing so.

So, short answer: prohibiting prayer by public employees on the job, including teachers in government-run schools, denies their free exercise of religion and so violates the First Amendment. It also violates something with much greater authority than the First Amendment, namely, the First Commandment: “You shall have no other gods before Me” (Exodus 20:3). Daniel, Shadrach, Meshach, and Abednego apparently felt no obligation to refrain from prayer, vocal and visible, despite the commands of the lawful authority where they lived in exile.

Now there’s a distinct question: Do I think it’s wise to have prayer in public schools? Generally, I’d leave that up to the individuals. That is, I’d leave it to individual teachers to decide whether they’re going to pray vocally during their classes. (No doubt many do, silently!) I’d leave it to individual students to decide whether they want to pray vocally at school, whether in class or out of it.

I don’t see a role for anyone to forbid anyone else from praying vocally — so long as the vocal praying doesn’t interfere with the business at hand — just as non-prayer speech, despite the First Amendment’s guarantee of freedom of speech, can be restricted so it doesn’t interfere with the business at hand.

But as someone who doesn’t think we should have government-run schools at all, I say just eliminate government-run schooling and you eliminate the problem. After all, who in his right mind ever thought it made any sense whatsoever to entrust to the government the shaping of the minds of the people by whose consent it’s supposed to govern? Government schooling and the consent of the governed are, in principle, incompatible, even if historically it takes a while for that incompatibility to become obvious.