Does free speech have a prayer?
Activist federal judges remake laws in their own image, denying religious speech
From, The Kentucky Citizen Digest, January/February, 2001.

For the last three decades, U.S. Federal  court rulings have significantly impacted one of America’s most cherished liberties—free speech. Prayer and religion in the public square have remained some of the most controversial issues, sharply dividing the country and public opinion. And recent rulings may prove to divide the nation even further.

In Santa Fe Independent School District v. Doe, the U.S. Supreme Court ruled that public school students cannot pray before extra-curricular activities such as high school football games. Student-led prayer was not mandated by the school district but only made permissible if the student selected to speak before activities chose to do so. The court disagreed and effectively banned not just prayer, but a student’s choice to pray.

Chief Justice William Rehnquist wrote the minority opinion which harshly criticized the decision saying, it “bristles with hostility to all things religious in public life.” This hostility became increasingly evident when on the same day the court declared that a Louisiana school district disclaimer regarding evolutionary theory was unconstitutional. Teachers delving into the topic of evolution were instructed by the school board to tell students that “the scientific theory of evolution . . . was not intended to influence or dissuade the biblical version of creation.”

Within nine days after determining what could be said inside the classroom, the Court had something to say about speech outside abortion facilities. In Hill v. Colorado, pro-lifers were told they could not speak to anyone entering an abortion facility without their express permission when within 100 feet of the entrance. Protesters not granted permission must then stay eight feet from persons entering the facilities and are forbidden from handing out literature. The directive is coined a “floating buffer zone,” but pro-lifers claim the policy only insulates the public from the truth of abortion and further sets a bad precedent against free speech.

Jan LaRue, Senior Director of Legal Studies for the Family Research Council stated in a press release, “[t]he public square, including walks, streets, and parks, has always been an epicenter for political debate, providing an open forum for individuals to peacefully express their opinions,” said Mrs. LaRue. “Pro-life speech merits the same protection as all speech, and should not be silenced by those who don’t agree with its message.”

U.S. District Courts have been involved in decisions regarding speech as well. In Ohio, a Federal Court struck down the state’s 41 year old motto which said, “With God all things are possible.” In Kentucky, Federal District Judge Jennifer Coffman ordered displays of historical documents, including the preamble to the state’s constitution and the 10 Commandments, removed from public buildings.

Said Coffman, “[t]he display does not appear to have been intended to educate ... [c]ounty residents, in a balanced or accurate manner, about the traditions and texts that were drawn upon by this nation’s founders or about the complex role religion has played in this country’s history.” Harlan, McCreary and Pulaski counties requested a stay of the ruling during the appeals process, but the request was turned down because Judge Coffman claimed that the anonymous plaintiffs “will be substantially harmed ... because they will continue to suffer the violation of their constitutional rights.”

Court watchers have observed a double standard when it comes to what kind of speech is regulated in the public square. Last May the U.S. Supreme Court ruled inUnited States v Playboy Entertainment Group that a federal law requiring indecent and sexually explicit material to be fully scrambled is unconstitutional. Oftentimes, cable subscribers receive unwanted transmissions due to “signal bleed.” But the court reasoned that an undue burden was placed on the pornography industry.

Pro-family advocates have surmised that prayer is now a vice in the eyes of the Court while pornography is protected speech. Is our public psyche is so fragile that a simple public prayer should so easily and immeasurably threaten our domestic tranquility? Have we become so narrow-minded as to permit anything in the public square except anything religious? According to Coffman, things like posting the 10 Commandments will indeed “substantially [cause] harm.” With thinking like this, free speech doesn’t have a prayer.
 
 
 

Key Family Foundation Contacts: Kent Ostrander, Executive Director Martin Cothran, Senior Associate Policy Analyst