That in the beginning was “the word,” and that the word was with God, and that the word was God is made apparent by a well-known biblical verse that references God; nonetheless, God and the word ‘god’ is the target of a vigorous dispute concerning whether this popular biblical reference to God is indistinct from a similar reference in the American Pledge of Allegiance. Americans are conspicuously divided over the appropriate limits on the use of the power and influence of government in religious expression; this is so notwithstanding that we commonly speak of God without acknowledgment of the wide-ranging incompatible conceptions of God.
As it stands, in dispute among many Americans, is the appropriate answer to the question whether a reference to the word God in a religious text is distinctly different from a child’s utterance of the word God and, if so, to what extent would the child’s utterance in public school be unconstitutional? Given the significance attached to constitutional questions of liberty, freedom, and religion, it is fitting to view this public school house dispute as particularly suitable as a backdrop for launching a fundamental reassessment of the interests of children and parents that the State must respect to ensure that no aspect of compulsory public education is transformed into religious indoctrination.
There is no doubt that every State action implicating religion is not invalid simply because a few citizens find it offensive. Indeed, it has become an incontrovertible First Amendment principle that the Federal constitutional demand that the State must remain “neutral” in matters of religion does not itself foreclose the government from ever taking religion into account. These principles and the simplicity of their expression betray the difficult hurdles that government must surmount when questions of liberty, freedom, and religion traverse the degage discourse of public debate and enter the courtroom. Our Federal Supreme Court’s evolving jurisprudence in this area also is confusing and notably lacking the predictive quality of well-regarded constitutional law; this is particularly so in disputed matters that combine religion and public education.
This article urges that in the context of questions of liberty, freedom, and religion, the Court must climb higher pedestals of constitutional adjudication to reach a point of appropriately augmenting the Court’s First Amendment jurisprudence to ensure that no aspect of compulsory public education is transformed into religious indoctrination. To this end, the Court’s First Amendment jurisprudence should reaffirm that in matters of public education, a wall of separation must divide ceremonial celebration from religious indoctrination. In taking these steps, the Court should explicitly recognize that the integration of the Court’s jurisprudence on the First Amendment’s Religious Clauses with the values underlying the protection of parental privacy reinforces similar interests of parents and children in safeguarding citizens from illicit State-sponsored religious practices in public school.
Assessing challenges to State actions implicating religion in public education by filtering the strength of the asserted interest of the parent or child through the lens of protections of parental privacy reinforces the constitutional injunction that the State may not force an individual to profess a belief or disbelief in any religion – - including a religious doctrine that receives majoritarian support by the polity. When State actions implicating religion permissibly occur inside the public school house, the integration of parental privacy protections with the limits on State power imposed by the Establishment and Religious Freedom Clauses provides the aide-memoir¿ of the Constitution’s demand that the government successfully surmount the requisite constitutional hurdles limiting State power by showing that the competing interests of children, parents, and the State can be carefully balanced in the State’s favor.
In the complex post-modern American culture, the result of integrating the interrelated constitutional interests of the First Amendment and parental privacy is the vesting of parents and children with protections that reinforce the real value of the interests at stake in challenges to State actions implicating religion in public school contexts; moreover, an integrated approach is not encumbered by vague and conflicting notions of how best to distinguish a religious practice from a ceremonial exercise anchored or branded to the nation’s heritage as is emphasized by the Court’s current vague Establishment Clause jurisprudence.
Today, notwithstanding the preferences of a parent or parents, whether the recitation of a pledge in public school that contains the words “under God” (or, more accurately, the actual act of pledging “under God”) constitutes an impermissible religious indoctrination turns on factors accorded weight by the Supreme Court’s Establishment Clause doctrine; but, at its core, the legitimacy of the exposure of a child to references concerning a deity by a public school should be framed with reference to the preferences of a parent or parents and, in doing so, invokes more than a singular constitutional doctrine. That is, in the public school context, alleged Establishment Clause violations must be assessed against both the strength of the parental right of privacy at stake as well as the coercive tendency of student participation in a school-sponsored religious exercise. In this light, even school-sponsored religious exercises having arguably nominal coercive impact upon students will not pass constitutional scrutiny, if a widely-acknowledged parental right of privacy is at stake; the stronger the parental right of privacy, the less tolerant the court must be in its assessment of the degree of coercion permitted in the school-sponsored religious exercise.
