John Marshall once famously wrote, "we must never forget that it is a constitution that we are expounding." (McCulloch v. Maryland). He meant, we must interpret the document not as we interpret a technical tax code, but as a repository of broad principles. Nevertheless, two items over the week end remind us that today lawyers seem to often be seeking technical loopholes instead of broad principles in looking at Establishment Clause jurisprudence.
First is the Russell County Kentucky case in which a federal district judge issued a temporary restraining order preventing Megan Chapman, who was elected graduation chaplain by her classmates, from giving her scheduled prayer at high school commencement ceremonies. Perhaps following an emphasis on technical loopholes in a legal memorandum circulated earlier this month by Liberty Counsel, at graduation during the principal's remarks, 200 graduates stood, and in unison recited the Lord's Prayer, to the thunderous applause of the audience. (Louisville Courier-Journal.)
The second development is an article in Saturday's Wall Street Journal [subscription required] which reports on the growing phenomenon of after-school religious clubs in elementary schools being run by the same teachers who teach students during the school day. Relying on a questionable 8th Circuit precedent, the practice has spread. Prodded on by their teachers, ten-year olds try to recruit fellow-students to attend. Permission slips they distribute tell parents that club can "improve memory skills, grades, attitudes, and behavior at home and school." John Blake, Durham executive director for the Child Evangelism Fellowship understands what is going on. He said, having teachers participate "boosts the number of children who enroll .... Kids just want to be there because their teacher's involved." One mother, who agreed reluctantly to let her daughter participate said her daughter was just reaffirming her faith. But she added, "if I wasn't Christian, if I was Jewish, I might be a little peeved about this."
