A football game between teams from two Christian high schools and they can’t have prayer on the loudspeaker?
That’s the ruling of the Florida High School Athletic Association. Cambridge Christian School has filed suit, and the case is before the U.S. Supreme Court on a writ of certiorari.
The Foundation for Moral Law has filed an amicus brief supporting Cambridge Christian School. We hope the Court will use this case to bring us back to the Framers’ understanding of religious freedom.
Ever since Lemon v. Kurtzman (1971), Establishment Clause jurisprudence has been adrift, grasping at the straws of court-created “tests” and sociology. But American Legion v. American Humanist Association (2019) and Kennedy v. Bremerton School District (2022) effectively overruled Lemon, and the Court is moving away from court-created “tests” for religion cases, focusing instead upon whether the practice in question is consistent with historical practices and understandings.
And so, the Foundation asks in its brief, what is the historic position of public prayer?
The parties themselves will focus on other issues, such as whether the use of a loudspeaker in a stadium constitutes “government speech” and whether the Association’s policy violates the free speech and free exercise rights of Cambridge Christian School and its students. But sometimes the role of an amicus curiae (friend of the court) is to bring to the Court’s attention issues or facts that the parties themselves have not raised.
Clearly, prayer is religious practice protected by the First Amendment’s free exercise clause. It’s also protected by the free speech clause and may be a form of petition protected by the petition clause.
But is prayer just another religious practice, just another form of speech, or just another form of petition? Or does prayer occupy a special place in this nation’s history and tradition?
The Foundation’s brief traces the special role of prayer in America’s history from colonial days through the present. We note that colonists declared days of prayer during droughts, Indian attacks, and threats from other nations. Public prayer and days of fasting and humiliation were common practices not only among the Pilgrims and Puritans of New England but among the Jamestown settlers as well.
In 1746, as the French Admiral d’Anville sailed for New England with 70 ships and 13,000 troops, Massachusetts Gov. William Shirley declared a Day of Prayer and fasting on Oct. 16. A hurricane subsequently scattered the French fleet, and colonists praised God for answering their prayers.
With Boston Harbor blockaded by the British, Thomas Jefferson drafted a Resolution for a Day of Fasting, Humiliation and Prayer on May 24, 1774. On July 19, 1775, the Continental Congress attended church together to pray for divine deliverance. On March 6, 1776, General Washington ordered a Day of Fasting, Prayer and Humiliation “to implore the Lord and Giver of all victory to pardon our manifold sins and wickedness.” The instances of public prayer go on and on.
At the Constitutional Convention, as the delegates were in confusion and disorder, Benjamin Franklin reminded them:
In the beginning of the contest with G. Britain, when we were sensible of danger we had daily prayer in this room for the Divine Protection. -- Our prayers, Sir, were heard, and they were graciously answered. ... And have we now forgotten that powerful friend? Or do we imagine we no longer need His assistance. I have lived, Sir, a long time and the longer I live, the more convincing proofs I see of this truth -- that God governs in the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid?
In 1853, considering the constitutionality and propriety of government chaplains, the Senate and House Judiciary Committees undertook extensive studies of the Establishment Clause of the First Amendment. The Senate noted that the First Amendment was adopted to prevent the adoption of anything like the Church of England as the official church of the United States.
[But the Framers] had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people; they did not intend to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators; they did not intend to send our armies and navies forth to do battle for their country without any national recognition of that God on whom success or failure depends; they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy. Not so had the battles of the revolution been fought, and the deliberations of the revolutionary Congress conducted.
Why is the Foundation presenting this history to the Court? To the Founders, and to Christians and other theists throughout history, prayer is not just a religious exercise of “people of faith” that the rest of us must tolerate. Prayer is how we as a people call upon God to invoke His aid and seek His blessings, not just in crisis but in the nation’s daily affairs. Prayer is how the students of Cambridge Christian School call upon God’s protection to protect their players throughout the game and inspire them to practice good sportsmanship.
Yes, prayer is protected by the First Amendment, but it deserves special protection because our well-being as a nation depends upon God hearing and answering prayer.
You see, to the Constitution’s Framers and to the students of Cambridge Christian School, God is real, and He really does hear and answer prayer.
What a novel concept!
Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Pastor of Woodland Presbyterian Church of Notasulga, AL (woodlandpca.org). He may be contacted for speaking engagements at [email protected].
