Gov. Rick Perry & public prayer in Texas

Governor Rick Perry (R-Texas) has fought US District Judge Fred Biery's decision that a high school cannot have a benediction or invocation at at graduation because the speakers "are prohibited from calling the crowd to pray or deliver a message that can be considered a prayer".  In response, Perry said

This reprehensible action taken by a federal judge underscores the increasingly inappropriate federal encroachment into the lives of Americans by unconstitutionally banning prayer at a Texas high school graduation.

As you would expect, the suit to ban praying at the graduation was filed by the Americans United for Separation of Church & State.

The Fifth Circuit Court has seen fit to judge otherwise, though.

We are not persuaded that plaintiffs have shown that they are substantially likely to prevail on the merits, particularly on the issue that the individual prayers or other remarks to be given by students at graduation are, in fact, school sponsored.

Perry's response to the ruling was quick & unequivocal:

I'm proud that the Fifth Circuit Court has overturned the lower court's order that banned prayer at a Texas high school graduation. I'm thankful for Attorney General Abbott's leadership in ensuring the First Amendment, which prohibits governments from interfering with Americans' rights to freely express their religious beliefs, is protected. Texas will continue to fight for the rights of all those who wish to pray in our state.

Further:

The First Amendment prohibits governments from interfering with Americans' rights to freely express their religious beliefs, and accordingly the U.S. Supreme Court has maintained that Congress may convene every day with a prayer.

The agnostic family that brought the suit through the AUSCS said that if prayer were allowed, then their son would not attend the ceremonies.  Well, I salute the courage of your convictions.  Now stay home.

This is part & parcel of a long-running feud between social factions (to use the word of the Federalist Papers) over the Constitution's First Amendment (starting with what George Will calls "the five most sublime words in the English language"):

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nowhere is there a mention of the frequently quoted terms 'wall of separation between church & state', which derive from a letter written by Thomas Jefferson to a group of Baptists in Danbury, Conneticut in 1802.  How the opinion of Jefferson is considered a source of law has never really been established in my mind. (If that holds sway, then wouldn't it be nice if the Federalist Papers were given equal consideration?)  The battle involves interpretation of what constitutes a "law respecting an establishment of religion", which could be held to apply only to the  US Congress until Gitlow vs New York in 1925 in its interpretation of the 14th Amendment (see here & here).  The argument is further constrained by the fact that some individual states maintained an established religion for some time after the ratification of the Constitution (e.g., Connecticut until 1818)

Yet there seem to be far fewer discussions of what follows thereafter: " . . . or prohibiting the free exercise thereof".  If atheists (who express a faith that there is no God), or agnostics for that matter (I would argue that philosophically they would have no standing in this case) speak to the issue that faith has no real impact on their lives, then it should not concern them that prayer is public.  It is an established right granted by the Creator & the government is proscribed from trying to diminish it.

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Update:  The story continues:

Gov. Rick Perry has proclaimed Saturday, Aug. 6th, as a Day of Prayer and Fasting for our Nation to seek God's guidance and wisdom in addressing the challenges that face our communities, states and nation. . . .

"I urge all Americans of faith to pray on that day for the healing of our country, the rebuilding of our communities and the restoration of enduring values as our guiding force." . . .

Which brings out the usual list of critics.