Outside the Beltway

Rick Perry Declares War On The First Amendment

In a desperate bid to save a floundering campaign, Rick Perry is willing to sacrifice important freedoms.

Doug Mataconis · Sunday, December 11, 2011 · 9 comments

Today in an appearance on Fox News Sunday Texas Governor Rick Perry, who has already turned his Presidential campaign into something of a religious crusade judging by the campaign commercials that he’s been running in Iowa, said that he supports a Constitutional Amendment that would overturn the Supreme Court’s school prayer rulings that stretch back to the 1960s:

(CNN) – Texas Gov. Rick Perry called Sunday for a constitutional amendment to allow prayer in public schools.

Appearing on “Fox News Sunday,” the Republican presidential hopeful went a step further than his previous calls for the Supreme Court to reverse its 1962 decision that banned organized prayer in public schools.

Perry said he would support “a constitutional amendment that would allow our children to pray in school any time that they would like.”

Such a proposal would easily pass if put to a nationwide vote, Perry said. The step is necessary because of what Perry called “activist judges” appointed to the U.S. Supreme Court like Sonia Sotomayor and Elena Kagan. Both justices were named to the court by President Barack Obama.

The issue of prayer in school should a local decision, rather than an issue foisted on the public by the Supreme Court, Perry said.

Here’s the video:

Perry’s argument is, of course, utter nonsense. For one thing, blaming anything surrounding school prayer on any of the Justices currently sitting on the Supreme Court is utterly silly. The most significant Supreme Court cases dealing with prayer in public schools — Engle v. Vitale and Abington School District v. Schepp — were decided in 1962 and 1963 respectively. Those two cases established that state-sponsored prayer in public schools, whether it was voluntary or mandatory, was unconstitutional. Then, in 1971 the Supreme Court decided Lemon v. Kurtzman, a case which dealt with a Pennsylvania law which allowed school districts to reimburse religious schools for the salaries of teachers who taught secular subjects in their schools. In that case, the Court established a three part test for determining when a government action is permissible under the Clause. Every single Establishment Clause case that the Court has handed down since 1971 — whether it deals with school prayer, the teaching of evolution, the display of religious symbols by government authorities, or any other related issue has incorporated Engle, Abington, and the Lemon test, and there has been no serious effort to overrule any of these cases.  Except in the minds of Rick Perry and the evangelicals he is so obviously trying to pander to with statements like this, the question of the extent to which government can sponsor or promote religion has been settled law for 40 years. Bringing it up in 2011 as an example of “judicial activism” is utterly silly.

The second part of Perry’s argument that is troublesome is that it repeats a lie that is common among evangelical Christians and others opposed to the very idea of the Separation of Church and State. There is nothing in current law, nothing in any Supreme Court decision, and nothing in the Constitution that says children cannot pray in school if they choose to.  All these cases say is that the government cannot use the inherently coercive nature of the school setting to force prayer on anyone involuntarily, or to require them to segregate themselves from the rest of their classmates because they don’t wish to engage in a “voluntary” prayer. If an individual student wishes to pray silently, the Free Exercise Clause says that they are permitted to, and the instances where voluntary actions like these are punished by school authorities are more examples of administrators and teachers unaware of the true state of the law than any conspiracy to wipe out the “right to pray.”

Finally, Perry’s claim that he would be willing to support a Constitutional Amendment means that he would, in effect, amend the First Amendment for the first time in American history.There’s no real danger that such a ridiculous Amendment would ever pass, of course, or that Rick Perry will ever become President at this point, but the shameless political pandering we’re seeing from this man is really quite pathetic. More importantly, though, it is an assault on one of the most important parts of the First Amendment. The Court in Engle v. Vitale explained it perfectly some 49 years ago:

The Establishment Clause thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its “unhallowed perversion” by a civil magistrate. Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. The Founders knew that only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind – a law which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding “unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom . . . .” And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents’ prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself.

The same can be said of the attitudes of politicians like Rick Perry who see fundamental freedom as something that can be tossed away when its political convenient. I’m not even sure Rick Perry really believes what he says about school prayer, at this point he is floundering in the polls and grasping at whatever straws he can to try to pull off some kind of upset in Iowa that will keep his campaign alive past January. Unfortunately, he’s decided to toss the First Amendment under the bus in the process.