The U.S. Constitution has, according to a New Jersey judge and the American Civil Liberties Union, been ravished. The instrument of this outrage is a New Jersey law which the judge says "is unconstitutional on its face and as applied, in that it violates the First and Fourteenth Amendments . . . and that immediate and irreparable injury will result to plaintiffs. . . ."
Whoa! The law that is pregnant with such awfulness says:
"Principals and teachers in each public elementary and secondary school . . . shall permit students to observe a one-minute period of silence to be used solely at the discretion of the individual student, before the opening exercises of each school day, for quiet and private contemplation or introspection."
According to the ACLU, that violates the constitutional guarantee against "establishment" of religion.
What is the injury--the irreparable injury--that a minute of silence will cause to anyone? No doubt a few children and parents will find it offensive that someone may use the minute for prayer. But since when is it an "injury" to be offended by what might be going on in someone's head? Such chaos is what a society comes to when it believes that every grievance should be expressed as a conflict of individual rights, and that every conflict should be adjudicated.
The ACLU's bullying litigation is designed not to protect the plaintiff (a student) but to compel others to behave as the plaintiff prefers. A lawyer for New Jersey's legislature argues that the law is constitutional because it is "neutral with respect to any religious content." The legislator who sponsored it says: "All we did was provide the opportunity for contemplation," and regarding the possibility that someone might silently pray, he says: "Who has the right, in this day and age, to determine that any thoughts someone has could violate the Constitution?"
An ACLU lawyer says New Jersey must "prove that nowhere among the purposes of the law is the opportunity for prayer." Opportunity? Perhaps the ACLU will soon say that a state "establishes" religion unless its schools make contemplation impossible for even a minute. (Many schools do make it difficult.) But even today, after some bizarre Supreme Court rulings, the ACLU lawyer may be correct about what New Jersey must prove.
The authors of the "establishment" clause wanted to guarantee that government action would be impartial among religions. They did not intend to require that it be neutral between religion and secularism. Still less did they intend what the Supreme Court has mandated--that any law must have "a secular legislative purpose and a primary effect that neither advances nor inhibits religion."
Such fine-spun formulations result when the court tortures the Constitution to yield particular social policies. Consider, for example, the abortion decision of 10 years ago this week.
That decision is generally conceded to be intellectual train wrecks of carelessly assembled language--"potential life" before "viability," and "the capability of meaningful life." Pro-abortion extremists--those who favor unlimited abortion on demand, achieved by incoherent judicial fiat--are reduced to arguing that "no one knows" when life begins, but that the court knows when "meaningful life" begins. That is, biology is unfathomable, but philosophy and theology are simple.
The reverse is true: the justices cannot know when "meaningful" life begins, but every high school biology student knows that life begins at conception. The argument is about when legal protections accorded to persons should be extended to that life.
Such confusions and insincerities are produced by result-oriented judges who labor to wring particular social policies from broad constitutional language, and who produce rococo rationalizations. The ACLU is a political organization pursuing its agenda primarily through litigation rather than legislation--often an authoritarian shortcut around the democratic process. It construes the Constitution the way a few religious extremists construe scripture. It is impatient with ambiguity, and defends as a merely literal reading of the document various policies that bear no discernible relation to the intention of the authors.
I oppose "voluntary" school prayer for two reasons: the collective speaking of words cannot be truly voluntary, and if the words are to be inoffensively ecumenical, they must be mere mush. But the ACLU is fanatical when it finds silence a menace to constitutional values.
Heaven (if the ACLU's thought-police will pardon the word) forbid, but perhaps the ACLU's real worry is this: getting adolescents quiet for even 60 seconds is a miracle, and miracles can arouse religious sentiments. There are precedents.