Board of Regents wrote a prayer and school board directed the School District's principal to cause the prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day.
It was a voluntary prayer--no child was compelled to recite the prayer.
The prayer was a non-denominational harmless single sentence: “"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."
This short prayer is comparable to the opening ceremony for sessions of the Supreme Court of the United States. Here is how the Court itself (https://www.supremecourt.gov/about/procedures.aspx) describes its opening ceremony:
“When the Court is in session, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: ‘The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!’"
New York Court of Appeals upheld the daily prayer activity so long as the school does “not compel any student to join in the prayer over his or her parents’ objection.” (P. 1) [This court applied the Coercion Test, a test that protects individual liberty from compelled religious activities]
SCOTUS held that a voluntary daily prayer violates the incorporated EC because it amounts to an "endorsement" of prayer or an "encouragement" to recite the prayer. It also said the "constitutional wall of separation" required the prayer to be enjoined and that this was "no part of the business of government." P. 2.
What liberty interest is being protected by the EC in this case?
Or is liberty being restricted by the Court's reading of the EC in the sense that those who wish to recite the prayer are being denied the opportunity to do so? See Stewart's dissent: "I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation."
How would Engel come out under a coercion test, such as in Barnette (the Pledge case discussed in my article)? See my Heckler's Veto article at p.263 (Judge Easterbrook on Pledge jurisprudence: "So long as the school does not compel pupils to espouse the content of the Pledge as their own belief, it may carry on with patriotic exercises. Objection by the few does not reduce to silence the many who want to pledge allegiance.") You protect liberty by protecting liberty, not by censoring the speech of others.
Is the voluntary prayer in Engel different from voluntary recitation of "under God" in the Pledge of Allegiance? Should the EC be interpreted to forbid the one and permit the other?
Notice the Court admits that it is not seeking to advance any real liberty interest: "The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not." P. 3.
So again I ask: How did a non-liberty test somehow get incorporated as a 14th Amendment "liberty" protected from "deprivation" by the states?
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