OPINION:
“School district argues football coach’s postgame prayer pressured students” (Web, April 1) quotes a lawyer who says a public official may not do anything to “advance” religion. Under the Constitution, that dog doesn’t hunt.
The First Amendment to the Constitution, part of the Bill of Rights, says “Congress shall make no law respecting an establishment of religion.” The Supreme Court has long held that the Bill of Rights does not apply to the states, but the court has applied most of the Bill’s provisions to the states under a principle called the incorporation doctrine. Most provisions of the Bill of Rights apply to the states, the court says, by incorporation into the due process clause of the 14th Amendment, which says a state can’t “deprive” any “person” of “life, liberty or property” without due process of law.
The incorporation doctrine is dubious at best, but even if it’s sound, it can’t be applied to state support of religion that has no coercive effect. If a state gives money to a religious school, no person is deprived of life, liberty or property, as required by the 14th Amendment. If a creche is erected in the public square, no person is deprived of life, liberty or property. The same holds true when a coach prays alone on a football field.
At a law school reunion a few years ago, I attended a constitutional law class conducted by Professor Laurence Tribe, who has written a multi-volume treatise on the Constitution. I approached him during the class intermission and advanced my establishment-clause argument. He agreed, though I doubt he’s ever put that agreement in writing.
Since 1947 the Supreme Court has invoked the incorporation doctrine to apply the establishment clause to the states. It is wrong on this score and should correct its error.
JIM DUEHOLM
Washington
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