Three Florida school employees will go to federal court on September 17 to see if they'll be thrown behind bars. The reason? Prayer. Their school made a deal with the ACLU to stop praying and this ridiculous situation proves that you can't make a deal with the devil.
The Santa Rosa County School District is in an area of northern Florida where people uphold traditional values and customs. One of those customs is the widespread use of prayer at all sorts of public events -- including school events. Then the ACLU came in, filed a federal lawsuit to stop the pernicious influence of students hearing people pray.
After a few months, the school board caved when the legal bills started mounting. The ACLU has an almost unlimited budget because it can be reimbursed for bringing these "civil rights" lawsuits, but the school district must pay out-of-pocket. Desperate to end the lawsuit, school officials signed a deal written by the ACLU, which the federal judge assigned to the case then issued as a court order.
Then two things happened. First, some school employees and adult volunteers gathered for a lunch after school hours, and the principal, Frank Lay, had the athletic director, Robert Freeman, offer a prayer before the meal. Second, some students were present at an awards banquet when a clerk, Michelle Winkler, asked her husband (who is not a school employee) to offer a prayer.
The ACLU ran to U.S. District Judge M. Casey Rodgers, who issued a contempt citation against all three officials. The judge referred the matter to the U.S. attorney in northern Florida (appointed by Barack Obama), who is now prosecuting all three for criminal contempt, which could carry six months in jail and a $5,000 fine.
Mat Staver, the head of Liberty Counsel, is now defending Principal Lay and the athletic director. Staver is working to keep them out of jail and save their retirements from being revoked by the state.
This situation is an outrage. The first event wasn't even a violation of the order. It controls "school events," and lists events involving students (such as graduation ceremonies and pep rallies). No students were present at the after-hours lunch. It was not a school event as the order defines it, so the no-prayer order doesn't apply.
The awards banquet is unfortunately a different matter. E-mails and records show that this was a school event with students, that Winkler knew prayer was not allowed, and that she deliberately chose her husband to offer the prayer instead. Sadly for her, the order doesn't just forbid prayer by employees; it also forbids employees from having a non-employee offer a prayer. It appears she violated this federal court order.
The Establishment Clause of the First Amendment (barring the establishment of religion) originally only constrained the federal government. In 1947, the Supreme Court extended it to state and local governments as well. Public schools are part of state government, and so are bound in every respect by the court rulings on the Establishment Clause. That includes public school employees, when acting within the scope of their employment.
But with all due respect to the judge, this order goes too far. It forbids school employees from "participating" in any prayer, meaning that can't even bow their heads if someone else is praying. It also forbids them from allowing any private-sector person from offering a prayer. It uses overly-broad terms. It requires these employees, who are American citizens, to sign away some of their personal First Amendment rights.
It was ill-advised for the school district to try to make a deal with the ACLU. The ACLU is a ruthlessly and militantly secular organization, and these officials shouldn't have thought that if they signed a deal written by the ACLU that it would save them from this sort of outrage. -- Sometimes you have to fight.
The judge should not have allowed this deal to become an order, however. It goes well beyond events that involve endorsing or coercing religious activity (which the Supreme Court has--rightly or wrongly--previously outlawed in a series of liberal decisions). At least with regards to the athletic director, the court should not have issued a contempt citation.
These people should not go to prison. The first two did nothing wrong, and the third likely did not realize how serious the consequences could be. This deal should be scrapped, and the whole issue of such basic religious expressions in school should be revisited with an eye to our Founding Fathers' design for protecting such expressions from the federal government.
And one lesson is clear: Never make a deal with the ACLU. They won't meet you half-way. Either you'll be forced to conform to their far-left vision of America or they'll drop the hammer on you with vengeance.
Ironically, Sept. 17 is Constitution Day. Let's pray for some common sense and that the Constitution will be upheld at this hearing.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union.
Ken Klukowski is an attorney who works on religious liberty for First Liberty Institute and on constitutional interpretation for the American Civil Rights Union.