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Governor Terry McAuliffe's Right to Veto Virginia's School Prayer Law

JURIST Guest Columnist Aaron Spencer, Temple University Beasley School of Law Class of 2015, discusses Virginia Governor Terry McAuliffe's Veto of SB 236, which would have codified the rights of students to pray voluntarily in school and at school events . . .

The First Amendment begins, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . ." The first clause, the Establishment Clause, has been interpreted as a prohibition. It mandates that neither the federal nor state governments may pass any law establishing, or even favoring, one religion over another. However, the Free Exercise Clause has been interpreted more as a right. It is the right of a person to be free of laws inhibiting her from freely exercising her religion. And like all First Amendment rights, it is subject to certain limitations based on public policy, frequently found when it comes into conflict with the Establishment Clause.

The most recent of these conflicts was on April 4, 2014, when Virginia Governor Terry McAuliffe vetoed SB 236. This bill was an amendment of two existing Virginia statutes, VA Code § 22.1-203.1 passed in 1994 and VA Code § 22.1-203.3 passed in 2008. The 1994 law, which codifies the students' right to voluntarily engage in student-initiated prayer, is amended to add:

"Students in public schools may voluntarily pray or engage in religious activities or religious expression before, during and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression . . . [and] shall have the same access to school facilities . . . the same opportunity to announce or advertise meetings . . . without discrimination based on the religious content of the students' expression."

There is also an allowance that the school may, ". . . disclaim school sponsorship of student-organized groups and events in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech."

The 2008 law, which codifies the students' right to express religious beliefs through homework, artwork and other assignments, is amended to add, "Students may wear clothing, accessories or jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories and jewelry are permitted." However, there's more. As stated in the legislative summary:

The bill also requires each school division to adopt a policy to permit a student speaker to express a religious viewpoint at any school event at which a student is permitted to publicly speak. The policy shall declare each such school event to be a limited public forum, provide a neutral method for the selection of student speakers and require each school principal to provide a disclaimer in advance of each such school event that the school division does not endorse any religious viewpoint that may be expressed by student speakers.

The interaction between the public sphere and religion is an area of contention that has existed since the inception of the union. Nowhere is this fight more keenly felt than in the issue of prayer in public schools. The US Supreme Court waded into it in a big way in 1962 with Engel v. Vitale, in which the court forbade government-written prayers in schools as a violation of the Establishment Clause. The New York prayer at issue read, "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

The court's decision in Engel formed the basis for finding unconstitutional clergy-led nondenominational prayer at graduation ceremonies, school-permitted but student-led prayer before football games and even a school-wide mandated moment of silence.

Two major legal provisions are at work in the issue of prayer in schools; the federal Equal Access Act and the test established in Lemon v. Kurtzman governing legislation dealing with religion.

The Equal Access Act prohibits a public secondary school from denying equal access and fair opportunity to "any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical or other content of the speech at such meetings." Important here is that a public, secondary school has a limited open forum when it has at least one student-led, non-curriculum club that meets outside of class time.

The Lemon test is a three-pronged test mandating that any laws dealing with religion must:

  1. Have a secular legislative purpose;
  2. Not have the primary effect of either advancing or inhibiting religion; or
  3. Not result in an "excessive government entanglement" with religion.

Most often, when a law fails the Lemon test, it fails the first prong, but failure of any prong is enough to make a law unconstitutional under the Establishment Clause. The Alabama statute in Wallace v. Jaffree, for instance, failed both the first and second prongs largely because the man who introduced the bill said during the legislative session that he was only trying to use it get prayer back into schools. After that case, however, many circuits (Eleventh Circuit, Fifth Circuit, and Seventh Circuit) have upheld various state "moment of silence" statutes which could be proven to have a legitimate secular purpose and no underlying religious motivation, including the US Court of Appeals for the Fourth Circuit, which upheld a Virginia statute in Brown v. Gilmore.

Governor McAuliffe rightly vetoed Virginia SB 236 because it: (1) Mandates a "limited public forum" at every school gathering in which a student is permitted to speak; (2) mandates refrainment from regulating student's voluntary expression of a religious viewpoint in that setting; (3) infringes on students' right to be free from coercive prayer and religious messaging at both voluntary and required school events; (4) is unnecessary because students' right to voluntarily express religious views are already protected through the Equal Access Act and the Virginia Guidelines (PDF) Concerning Religious Activity in the Public Schools; and (5) would expose school divisions to extensive and costly litigation.

By making each school division declare every school gathering at which a student is permitted to speak a "limited public forum," the legislature is trying to tie in to the Equal Access Act. However, this smacks of promotion of religion, which will lead to failure of the second prong of the Lemon test, because the definition of "limited public forums" focuses on clubs that meet outside of class time at which outsiders and school administration have no organizational oversight. The Virginia legislature is attempting to expand that to any school gathering, regardless of official school involvement, including graduation ceremonies. The mandated disclaimer will not dispel the patina of school sponsored religious speech that everyone at the event will be forced to listen to, in a near exact echo of the situation in Santa Fe Independent School District v. Doe.

Finally, the rights of Virginia students to pray or express religion on their own are well-established and well-protected. The Fourth Circuit has upheld a moment of silence during which each student is free to pray, meditate or reflect to herself. The Equal Access Act, quite without help from the Virginia legislature, provides wide latitude for student-initiated groups, even ones funded by the school district. And the Virginia Guidelines Concerning Religious Activity in the Public Schools, clearly outline the students' freedoms, "in choice of religious literature, discussion of religious themes with other willing students, voluntary student prayer and other non-disruptive expressions of belief, both verbal and as expressed through attire or other personal effects."

Suggested citation: Aaron Spencer, Governor Terry McAuliffe's Right to Veto Virginia's School Prayer Law , JURIST - Dateline, May 02, 2014, http://jurist.org/dateline/2014/05/aaron-spencer-school-prayer.php.

Aaron Spencer earned a Bachelor of Music in Voice Performance from the University of Florida. He is the program director for the American Constitution Society and 2013 Law and Public Policy Scholar. He has worked as an intern for the Judge Advocate General's Corps, US Navy in Washington, DC.

This article was prepared for publication by Endia Vereen, a Section Editor for JURIST's commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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