Written by Ronald R. Cherry, MD
A paradox is a seeming truth that leads to a contradiction in defiance of truth. It seems to me that our Federal government has boxed its self into a paradox – actually a real contradiction - with its laws forbidding teacher-led, State-sanctioned school prayer. After studying our Constitution’s enumerated powers in Article I, Section 8; and the 1st, 10th and 14th Amendments; I’m now fairly sure of it.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Amendment I, Bill of Rights, U.S. Constitution
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…nor deny to any person within its jurisdiction the equal protection of the laws.” Amendment XIV, U. S. Constitution
Federal laws prohibiting school prayer - led by teachers or students - are unconstitutional. The power to establish national religion or atheism - or prohibit the free exercise thereof - are not enumerated powers for federal government in our Constitution. Our 1st amendment forbids Federal law from establishing religion or atheism - or prohibiting the free exercise of non-subversive religion (prayer) or non-subversive atheism (moment of silence) by anyone - including principals, teachers, coaches, students, parents or visitors. Our 14th amendment forbids Federal or State law from favoring religion over atheism - or atheism over religion.
Since Federal government currently taxes for and funds public education a case could be made for unconstitutional Federal establishment of religion via prohibition of moments of silence and sanction of school prayer. A case can be made for unconstitutional Federal establishment of atheism via prohibition of school prayer and sanctioning moments of silence at school. The first paradox here is that Federal taxation for and funding of education is its self unconstitutional because, as mentioned earlier, the power to educate our children is not an enumerated power for Federal government in our Constitution – so how can Federal government rightly complain about an unconstitutional establishment of religion when Federal government was first at fault in its violation of our Constitution? The second paradox is that having unconstitutionally taxed for and funded public education, in violation of Article I, Section 8 and the 10th amendment, Federal government has limited it’s subsequent choices to one of these two:
1 - Unconstitutional establishment of religion by sanctioning school prayer - and forbidding the free exercise of atheist moments of silence - in violation of the 1st and 14th amendments (they didn’t choose that one).
2 - Unconstitutional establishment of atheism by sanctioning moments of silence at school – and forbidding the free exercise of school prayer - in violation of the 1st and 14th amendments (that’s the one they chose).
In addition to these paradoxes (actually direct contradictions) we can see that Federal outlawing of public school prayer is tyranny. Thomas Jefferson said “Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others." It follows that tyranny is obstructed action (forbidding school prayer) according to someone else's will (Federal government) within limits drawn around us by the superior rights of others (sanctioning atheist moments of silence). The solution to these contradictions, and this tyranny, is self-evident - Federal government must be forbidden to unconstitutionally tax for and fund the education of our children. If the initial Federal violation of our Constitution is corrected first (taxing for and funding public education), correction of the second violation (Unconstitutional establishment of atheism by sanctioning moments of silence at school - and forbidding the free exercise of school prayer) automatically follows. Once our Federal government is no longer empowered to tax for and fund public education they will be confined within the firewalls of our Constitution - which was rightly intended to limit its power – Federal government will thereby become extricated from the tyranny and the paradoxical Catch-22 in which it is now ensnared.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Amendment X, Bill of Rights, U.S. Constitution
Under our 10thamendment States would possess a power to establish religion or atheism, but such establishment would be subversive of all who adhere to the non-chosen faith - because they would be taxed to support the chosen faith - in violation of equal liberty and pursuit of happiness – in violation of our Declaration of Independence - and in violation of the equal protection of law under our 14th amendment. State establishment of religion or atheism, as in the Federal case, is therefore unacceptable. Neither Federal nor State government may establish religion or atheism, but school prayer alternating with moments of silence would not establish religion over atheism, or atheism over religion. Under our 10th amendment each State would be free to authorize alternating school prayer and moments of silence in proportion to student demographics - that would be in compliance with our Declaration of Independence and 14th amendment.
States are empowered to educate children (and so are the parents) because that is a power “not delegated to the United States by the Constitution, nor prohibited by it to the states.” Under our 10th amendment States also possess power to prohibit the free exercise of subversive religion or subversive atheism. State power to prohibit the free exercise of religion or atheism subversive of equal rights to life, liberty and fruit of labor in pursuit of happiness would be in defense of our Declaration of Independence (equal rights) and 14th amendment (equal law). Federal government prohibition of the free exercise of non-subversive religion or non-subversive atheism is proscribed by our 1st amendment; however, since Federal prohibition of subversive religion or subversive atheism defends the Declaration of Independence and 14th amendment, it is acceptable - so there is no paradox or contradiction here. There is only one rational and moral justification for prohibition of the free exercise of religion or atheism – that is when religion or atheism become radicalized – when either become destructive (subversive) of man’s equal God-given unalienable rights to life, liberty and fruit of labor in pursuit of happiness (Declaration of Independence) – and subversive of the laws (Constitution and Bill of Rights) which secure those sacred individual rights.
“In regard to religion, mutual toleration in the different professions thereof is what all good and candid minds in all ages have ever practiced, and, both by precept and example, inculcated on mankind. And it is now generally agreed among Christians that this spirit of toleration…is the chief characteristical mark of the Church. Insomuch that Mr. Locke has asserted and proved, beyond the possibility of contradiction on any solid ground, that such toleration ought to be extended to all whose doctrines are not subversive of society. The only sects which he thinks ought to be, and which by all wise laws are excluded from such toleration, are those who teach doctrines subversive of the civil government under which they live [Declaration of Independence, Bill of Rights and Constitution].” Samuel Adams
As discussed, neither Federal nor State law should establish religion or atheism, but it will likely become necessary for Federal and/or State governments to outlaw subversive elements within religion such as Theocratic Christianity or Islamic Sharia Law (Theocratic Islam) – or subversive elements within atheism such as Marxism – because they contain (or contained) legal/political systems which are hostile to the equal rights of American citizens to their life, liberty and fruit of labor in pursuit of happiness - and our equality before law.