“Something There Is That does Not Love A Wall: Using A Speech Metaphor to Critique the Establishment Clause of the First Amendment”
By Dr. C. Ray Penn
“Something there is that doesn’t love a wall,
That sends the frozen-ground-swell under it
And spills the upper boulders in the sun,
And makes gaps even two can pass abreast.
* * * *
He only says, ‘Good fences make good neighbors.’
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
‘Why do they make good neighbors? Isn’t it
Where there are cows? But here there are no cows.
Before I built a wall I’d ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn’t love a wall,
That wants it down.
Robert Frost, “Mending Wall.” 
Robert Frost places into eloquent verse the feelings of many believers across this nation when it comes to understanding the relationship between church and state: something in them does not love a wall. As Frost wisely points out, walls function best when there is some physical object, like a cow, that must be separated from another physical object for some good reason. But religious discourse, in its verbal and nonverbal forms, is not the same thing as a cow. Before using the metaphor of a wall, a metaphor fashioned by Thomas Jefferson in his reply to a letter from the Danbury Baptist Association and placed into judicial use by Chief Justice Waite in 1878 in Reynolds v. United States , we should heed Frost’s suggestion and contemplate what we are “walling in or walling out, and to whom [such an act would] give offense.”
The purpose of this paper is to present some general principles of communication theory and ethics as a way of coming to some consensus among believers and non-believers as to the midpoint between two extremes: at one extreme, the creation of a theocracy and on the other extreme the creation of a religion-less society.
This paper rests upon certain assumptions that some may consider debatable. In fairness to all readers, I will state these assumptions as clearly and as thoroughly as I can. First I assume that human beings are, in the main, religious creatures seeking a perspective on the meaning of life governed by the following assumptions: (1) there is a God, (2) this God is actively involved in the persuasive shaping of human existence, (3) the perspective on human existence offered by this God is knowable, and (4) such a perspective constitutes a significant component of absolute truth which the believer is encouraged to share with others. The majority of Americans hold either tenuously or vigorously to many, if not all, of these assumptions. According to the latest research by George Barna: “one out of every eight American adults is involved in some type of religious leadership position, and a majority believe that religion and the Bible are very important in their lives.”  Thus having a religion is not a peripheral aspect of cultural life. I believe that religious discourse has a valid place in the “marketplace of ideas.”
Second, it is ethically repugnant for messages placing these assumptions into public consciousness to be constrained in ways that other messages are not. The concept of the free marketplace of ideas should be extended to the majority as well as to the minority. We should hear and heed all of John Stuart Mills’ oft quoted passage from On Liberty: “If all mankind minus one were of one opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.” 
Third, the words “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’ occur within the context of other directives about communication behavior: “Congress shall make no law ...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.”  Whether by design or by accident, this placement underscores my central assumption that the metaphorical sense of “wall” is inadequate to see the proper presence of religious belief in American society.
The metaphor “wall” is best used to understand the relationship between two physical objects that could and should exist separated from each other by a wall. But the public manifestation of religious faith is religious speech and to imagine speech without an audience, or, more specifically, without the right to gather an audience, is to unfairly constrain part of the essential nature of religious faith. Put another way, we need to lay aside the metaphor of “wall” and substitute in its place the metaphor of “speech” in order to fairly arrive at a consensus about how to regulate religious speech in a democracy.
Fourth, because the law (as well as the judges and attorneys who interpret the law) does not have an accurate grasp upon the nature of human communication , I agree with Franklyn Haiman, professor emeritus at Northwestern University who has written extensively about the Supreme Court’s inaccurate grasp of communication theory, that “law is a tool only to prevent people from aggrandizing against one another” and therefore the law “is not an appropriate mechanism for the prohibition of words and deeds which do no injury to other persons.”  While a great deal of effort and money has gone into legal disputes about establishment issues, I believe that as much, if not more, money and persuasive effort should be focused on arriving at a public consensus which could forestall using the hatchet-like tool of litigation for the delicate surgery needed in differentiating the proper and improper relationship between church and state.
Having stated as clearly as I can the assumptions I hold that guide (some may say poison) my argument, I will now proceed to examine how successfully the explicitly and/or implicitly held metaphor of a “wall” between church and state has served us.
CRITIQUE OF THE WALL METAPHOR
There have been approximately 66 cases related to various aspects of the relationship between the church and local and national forms of government from 1892 to 1985. In discussing such cases it is normal to categorize them in terms of their judicial categories. There are, for examples, cases that can be categorized either as cases dealing with the free exercise of religion or cases that deal with issues related to the establishment of religion. Each of these categories can be further subdivided into cases related to public education, solicitation or taxation.
I have chosen to present the findings of these cases in terms of three categories: cases that maintain a belief that the metaphor of a wall is an apt metaphor; cases that seem to indicate that there is no wall between church and state; and cases that implicitly argue that the wall between church and state is more a permeable membrane, allowing some interaction but restricting it on the basis of some general principle.
Cases That Reinforce the Wall Metaphor —The original guidelines used in deciding the earliest cases appear to hold well to the metaphor of a wall between church and state. In Watson v. Jones, a case involving a dispute over church property that came to the court in 1892, the court decided that it was the duty of the law to offer only summary review of whether the polity of the particular church organization (be it congregational or episcopal) had been properly adhered to. So long as proper procedure had been followed, the court would uphold the decision of the proper ecclesiastical body. Thus the court served as an external auditor of procedure and avoided any entanglement in the content of religion. This basic philosophy was continued in the Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church in 1969 when the court reinforced the Watson v. Jones decision by saying that the court would apply to churches the same neutral principles of law that it would apply to any corporation or trusteeship.
This theme of maintaining strict separation—policing the wall, in a sense—continued as a theme in many court decisions. The wall between church and state prevented, for example, public officials from making children of Jehovah Witnesses pledge allegiance to a flag they could not believe in Gones v. Opelika) or states from requiring belief in God in order to hold public office ((Turcaso v. Watkins) or forcing the Amish to send their children to public schools beyond the eighth grade (Wisconsin v. Yoder).
Likewise such a separation could not permit a state to forbid children to substitute parochial education for public education (pierce v. Society of Sisters) nor would it permit the state to refuse to pay for secular teaching in a parochial school (Flast v. Cohen; Walz v. Tax Commission; Committee for Public Education v. Nyquist) or for loaning instructional material as well as providing remedial teaching or psychological or therapeutic services to parochial students (Meck v. Pittenger).
This wall prevents the National Labor Relations Board from having jurisdiction over Catholic schools (NLRB v. Catholic Bishops of Chicago) as well as preventing officials at the military academies from requiring chapel attendance (Anderson v. Laird; this was a lower court decision that was submitted to the Supreme Court but in the light of other decisions at the time was rejected for certiori by the Supreme Court resulting in the lower court’s decision to forbid compulsory attendance to stand.) Such a wall also meant that a city ordinance that allowed churches and schools to challenge the issuing of liquor licenses if the petitioning tavern was within 500 feet of the church or school (c.f. Larkin v. Grendel’s Den) was unconstitutional because it gave a form of veto power to religious institutions over the decision of a governmental power (the liquor commission).
But a strict use of the wall metaphor has not always served the American public well. For example, in Stone v. Graham, a Kentucky law that permitted the posting of the Ten Commandments on the wall of Kentucky public schools if such posters were not paid for by school funds and if such posters contained a statement that indicated that “the secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States” was ruled unconstitutional.
The Supreme Court in an unsigned opinion stated that the “avowed” secular purpose of the poster was “selfserving” and compared it to the argument by advocates of reciting the Lord’s Prayer and hearing daily Bible verses that such practices promoted moral values. The court, focusing on the fact that the Ten Commandments begin with statements about God, not using the Lord’s name in vain and observing the sabbath day, judged that the Ten Commandments could not serve in the study of “history, civilization, ethics or comparative religion” but could only “induce the school children to read, meditate upon, perhaps to venerate and obey, the Commandments.” [paragraph 42, Stone v. Graham, 449 U.S. 39, 1980]. This seems strange in light of the fact that the decision rests upon a portion of the whole text while in matters of pornography the whole text must be considered and in light of other decisions by the court that uphold Sunday closing laws as having a secular purpose. [c.f. McGowan v. Maryland, Braunfeld v.Brown] And the fact that obscenity charges rests upon the colonial tradition of forbidding the blasphemy of God thus proving the influence of the Ten Commandments upon our legal tradition seems to have escaped the court’s notice.
Decisions That Reject the Wall Metaphor — Other cases seem to indicate that there are large gaps in the wall between church and state. The Court in the past has ruled, for example, that merely advocating polygamy by membership in the Mormon Church can prevent you from voting privileges (Latter Day Saint v. U.S.). In addition, the court has ruled that the I.R.S. can force a religious school to behave in a way that is against its principles or risk loss of tax exemption status. In Goldsboro v. U.S. the court ruled that the I.R.S. could expect not only that a religious institution prove that its activities were predominantly religious in nature but also require that religious institutions “must serve a public purpose and not be contrary to established public policy” In the case of Bob Jones University, an institution that rested its policies toward students in a literal interpretation of the Bible, such an “established public policy” would require them to allow interracial dating even though such a practice violated their deeply held beliefs. Noting that such interference did appear to place a burden on religious beliefs the Chief Justice went on to state that eradication of racial discrimination in education is such a compelling state interest that such an interest “outweighs whatever burden denial of tax benefits places on petitioner’s exercise of their religious beliefs.” [Bob Jones University v. U.S. and Goldsboro Christian Schools v. U.S. 461 U.S. 574, 604]
It is legal for the military to forbid a Jewish chaplain from wearing his yarmulke outside of services (Goldman v. Weinberger), for a city to sponsor a nativity scene if it is included with secular symbols of the season (Lynch v. Donnelly) as well as for a state to legalize Sunday closing laws for such laws, while they may have begun as a form of religious practice, now can have a secular purpose of requiring workers to have much needed rest. (c.f. McGowan v. Maryland, Two Guys from Harrison-Allentown, Inc. v. McGinley, Braunfeld v. Brown, Gallagher v.Crown Kosher). In addition, using public funds to provide legislative chaplains is also legal (c.f. Marsh v. Chambers). It is interesting to note that while Marsh v. Chambers was decided after the “lemon test” (c.f. Lemon v. Kurtzman) was announced, that is, that an activity in a public school system that might appear religious was acceptable if it had a secular purpose, whose primary affect was not to advance religion and whose on-going activity did not lead to excessive entanglement of church and state, the court did not use such principles in reaching its decision but used historical precedent, arguing that the same Congress that adopted the First Amendment also initiated public funding of chaplains. [c.f. paragraph 795, Marsh v. Chambers, 463 U.S., 783.
The Supreme Court has reached through the wall to sketch out how public funds might be used to support parochial education. (c.r. Woman v. Walters) and has noted that while established prayer in school is forbidden, it would not be unconstitutional for a school system to provide for the academic teaching of religion (Abingdon v. Schemp). And while it has forbidden the National Labor Relations Board to have jurisdiction over the Catholic school system in Chicago, it has permitted the Equal Employment Opportunity Commission to have jurisdiction over Mississippi College by denying certiori (c.f. Mississippi College v. E.E.O.C.)
Cases That View the Separation as a Permeable Membrane—Certain cases indicate that if Thomas Jefferson had known more about the human body he might have served us better to use the metaphor of a permeable membrane—a wall that allows certain things to pass through and other things to be blocked. I would place in this category cases that neither maintain the fiction that something that is of significant value to the populace can be kept hermetically sealed from interaction with government nor permit government to directly shape religious activity.
A classic example of this category of cases would be cases involving the exemption of religious institutions from taxation. The major case in this category was Walz v. Tax Commission decided in 1970. The court admitted that any tax exemption for a religious entity did give that institution financial advantages not given to other social institutions. But such an advantage was permissible when compared to the excessive entanglement in the affairs of religious bodies that would follow any effort to tax them.
To this principle of the “lesser of two evils” can be added other principles that have enabled the state and religious bodies to acknowledge each others presence while at the same time laying no heavy burden on each other. The principle of “child benefit” that has guided several parochial education cases is another example. So long as the government either gives funds directly to a student to use at his or her discretion in any educational setting of his or her choosing (Witters v. Washington Department of Services for the Blind) or allows all parents to deduct educational expenses from their state income tax regardless of whether the school is public or parochial (Mueller v. Allen) or funds buildings not used directly for religious worship (Hunt v. McNair) or furthers its general purpose of educating students by providing textbooks for both public and parochial students (Everson v. Board of Education, also Board of Education v. Allen).
To this general principle guiding the interaction of church and state can be added the “public forum” principle of Widmor v. Vincent and Bender v. Williamsport which states that so long as a state institution is providing an open forum for all views it cannot exclude religious views from being provided in such a forum. Such a principle is akin to the “content neutral” principle that has guided solicitation laws. Combining both of these principles would result in this general principle: if a burden is to placed upon people, that burden must fall upon the religious oriented person neither more nor less heavily than it falls on the non-religious person; if a forum is provided for presenting a message, no message—neither that of the religious person nor that of the non-religious person—can be excluded on the basis of content.
Added to these principles is the principle that the person must be protected from being forced to utter words he or she does not believe in when a forum is created. ll1is appears to be the reasoning in Wallace v. Jaffree in which the court struck down an effort by the state of Alabama to institute within its schools a period of silence “for meditation or prayer” (1978 law) and then to authorize teachers to “lead willing students in a prescribed prayer to Almighty God, the Creator and Supreme Judge of the World.” (1982 law) The court seemed open to moments of silence with a secular purpose which would enable each student to shape that moment of silence as he or she desired but could not support, in the words of Board of Education v. Barnette which Justice Stevens quoted, any “official, high or petty ... (prescribing] what shall be orthodox in ... religion ... “[Wallace v. Jaffree, 105 St. Ct. 2479].
PRINCIPLES OF COMMUNICATION THEORY AND ETHICS:
This section attempts to present principles of communication theory and communication ethics that bear directly upon the issue of how religious messages ought to be presented within American society. The purpose of this discussion is to move away from using the metaphor of the wall to direct our public debate on these issues and to replace it with metaphors drawn from speech activity.
The first theoretical principle is that each message sent by any source contains two intertwined messages—the content message and the relational message. The content message is the symbolic representation of the meaning the source has (i.e. the idea or feeling the source has: “I love the Lord.”) while the relational message is the subtle, sometimes non-verbal, comment the source is making about his or her relationship with the receiver.  It is possible for the content of the message “I love you” to be so clearly intertwined with the relational message “I hate you” that the receiver feels hated by these words of love.
What relational message should believers aspire to send to all who might receive our messages? I would suggest the following relational messages as being those messages most closely aligned to agape love. The source should show respect for the receiver’s free will by encouraging the highest degree of conscious, free choice by the receiver. As Haiman notes, any effort to “short-circuit” choice by “planting suggestions or exerting pressure on the periphery of [the sources] consciousness which are intended to produce automatic, non-reflective behavior”  sends the relational message that the source does not respect the receiver’s ability to accept the Gospel if it is presented directly to the decision making aspect of consciousness. The more pervasive a religious theme is in a message, the more explicit should be the effort to identify publicly the context as religious.
The source should provide a context which, to some degree, allows for feedback from the receiver. This, of course, does not mean that every sermon must provide immediately a forum for discussion, although this might certainly enliven religious discourse. It does mean that we should aim toward the ideal of affirming every receiver’s right to have their doubts and questions dealt with in a way that affirms their presence in an “I-Thou” relationship as opposed to an “I-It” relationship, to use Buber’s words. This means sending the relational message that believers invite honest questions from all receivers in whatever public or interpersonal context such a dialogue can be arranged.  Johannesen has called the climate that such an attitude by the source creates as “supportive”, in that it “encourages the other to communicate”, inclusive, in that it attempts to “imagine the reality of the other person’s viewpoint, “confirming,” in that it “expresses nonpossessive warmth for the other” and equal, in the sense that it grants equal rank to both receiver and source. 
The second theoretical principle is that we should apply the same constraints on all messages equally regardless of content. There is adequate theoretical justification for allowing minority opinion to be clearly heard in a democracy. But there is, I believe, a concomitant ethical justification for treating messages that echo the belief system’s of the majority equal access to the marketplace of ideas. If a state university allows student money to be used to support appearances by rock musicians, the fact that a band’s lyrics contain a Christian message should not immediately rule it out. The decision as to whether any band is allowed to be played should rest upon content neutral criteria like musical ability or name-recognition. If a ballpark allows fans to display signs, forbidding only obscenities, then a sign reading ‘: John 3: 16” should be allowed to compete with a sign reading “Hi Mom.”
The third theoretical principle echoes the previous call for fairness. We should not apply one theory of message reception if a minority is exposed to what are called “hate” messages or the majority is exposed to “pornographic” messages and another communication theory if a minority group is exposed to a religious message. In discussing sexually explicit material mailed to the home, Haiman argues:
“When confronted by offensive but constitutionally protected communication, the burden is upon the viewers to avoid further bombardment of their sensibilities by averting their eyes.” [II]
He does, however, qualify this by stating that the only permissible exception is “when the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure.”  This viewpoint is echoed by Calvert Magruder who, in an article entitled “Mental and Emotional Disturbance in the Law of Torts” in the Harvard Law Review, quoted by Haiman, responds to the concept of “symbolic battery” of minorities by hate groups by arguing that “against a large part of the frictions and irritations and clashing of temperaments incident to participation in community life, a certain toughening of the mental hide is a better protection that the law could ever be.” 
Haiman, in his discussion of the concept of the captive audience, uses communication theory to undergird his argument by referring to the concept of “selective perception.”  He notes that:
“Human beings have a significant ability mentally to reject many assaultive stimuli. The process known as ‘selective perception’ enables us to generally choose what we wish to assimilate from the multitude of sensory bombardments surrounding us. We are able to hear without listening and to look without seeing, as we do so much of the time … not only do our past experiences and present interests determine what we will perceive from our surroundings, but .. we also have a strong tendency to screen out or to distort messages that are inconsistent with or contradictory to our current beliefs. We seek out reinforcement for what we already believe, and avoid as much as possible that for what we already believe, and avoid as much as possible that which might create ‘cognitive dissonance.’”
Given these tendencies, it may well be that the captive audience situation is not so serious an invasion of privacy as it has been thought to be. Indeed, one might argue that the possibility of unwelcome messages penetrating the psychological armor of unwilling audiences are so small that we ought to be worrying more about how to help unpopular communicators get through to reluctant listeners than how to give further protection from speech to those who already know too well how to isolate themselves from alien ideas. 
If we are consistent in applying well grounded communication theory to all communication situations regardless of content, it follows that if Afro-Americans must, tragically, avert their eyes from the K.K.K. or if the majority of people who view sexually explicit material as being degrading must develop a thick skin, then it follows that those who do not agree with a religious message that is not “established” by a governmental body should also be expected to avert their eyes and develop a thick skin.
The fourth theoretical principle focuses on classifying messages on the basis of intentionality, explicit value hierarchy and direct advocacy of belief or action. It is possible to differentiate “persuasive messages” from “informative” messages on the basis of the preceding criteria. It is true, of course, that any message can be persuasive if the receiver is searching for some help in finding a philosophy of life or a solution to a problem. But to view all messages as persuasive would be absurd. Should a teacher be held legally responsible for recommending civil rebellion by reporting the words of a Southern statesman? Is describing the union of sperm and egg recommending teenage pregnancy? Is the presentation of statistics about the increase in crime within schools advocating violence as the proper solution for playground disputes? The obvious answer to these questions is no because we take into consideration the presence or absence of words directly advocating the acceptance of an idea or an act, evidence of intentionality and explicit statements about a value hierarchy in judging whether a statement is informative or persuasive. Informative messages, even in a context that might be “constrained,” as a school system might be considered to be is of less of an ethical issue than persuasive messages in a “constrained” context or persuasive messages in an unconstrained context.
This principle enables us to deal quickly, I think, with situations like the dispute that agonized a community near me. For several years the school system, without public discussion on the matter, had decided to label the vacation students take in December as “winter break” rather than Christmas to avoid offending non-Christian students and their parents. In like manner, the break which occurred during the Christian celebration of Easter was renamed “spring break.” Parents complained about this to the city commissioners who voted to request the school system to return to the nomenclature preferred by the majority of citizens.
Those supporting the retention of “winter break” and “spring break” argued that such terms “does nothing to keep one from exercising one’s right to believe in a religious faith” but such terms do ensure “that the public school system is not taking an official stand or position that endorses a particular religion.”  In recommending that all references to “Christmas” be deleted from the school policy manual, one Montgomery School Board member argued that “we felt for the sake of being sensitive, we would at least be respective enough to call it a winter break” for “we are a public organization [and] serve the citizens of Montgomery County.” 
In arguing against such pseudo-sensitivity, I noted that such a position insults “all religious traditions in trying to be tolerant of all religious traditions.” The inherent fault in such a proposal is that it accepts the names of “Christmas” and “Easter” as being inherently persuasive. Persuasion does not lie inherently in a name but in the value system of the perceiver. It is just as possible that someone viewing the terms “winter” and “spring” might construe such symbols as being efforts to persuade the majority of citizens of Montgomery County that Christianity is and ought to be a marginal aspect of American cultural life and, if such a perception was grounded in truth, such a message would clearly be “demeaning” and “insensitive.” Later in this article I will deal with whether prayer fits into the category of an informative or persuasive message or whether it fits better into a unique category.
No one would argue that cities like Los Angeles and Corpus Christi be renamed because such religious terms, even in a foreign language, are efforts to persuade. To ignore the fact that missionaries were a significant part in a city’s founding or that a particular community grew out of a search for religious impulses is to marginalize religious beliefs and to teach children that facts are meaningless and arbitrary creatures that are easily done away with in the pursuit of the ambiguous goal of religious neutrality and cultural sensitivity.
The fifth principle is that in determining whether a religious message is truly “established” or not, the majority of the following conditions must be present. First, the message, viewed in its entirety, must contain an explicitly persuasive effort to recommend a religious belief system. It seems fair that if we must judge sexually explicit messages “taken as a whole” in determining pornography as Miller vs California requires  then the same principle should be used in regards to religious messages. A public official who, in the course of speaking out about a public issue in his or her official capacity, refers to his or her belief in the existence of God or the reality of sin, is not establishing a religious message if such references do not constitute the whole of the message. The Supreme Court has recently wisely refused to grant a hearing to a complaint by an atheist that an Illinois law requiring students to recite the Pledge of Allegiance violates the separation of church and state because it contains the phrase “one nation under God.” Just as one reference to explicit sex does not pornography make, so too does one reference to God not a religious message make!
Second, governmental funds must be used to establish the forum for such a message. By establishing a forum, I mean advertising the event, paying for or providing the room, providing for or renting the sound system, paying honorarium or fees or providing salary support for the speaker and/or auxiliary aspects of the presentation like bands, refreshments, banners, flags, and the like.
Third, a governmental representative acting in his or her official capacity must control the content and delivery of the religious message. If a student in his or her capacity as valedictorian or salutatorian presents a testimony, I do not believe that such religious discourse is an “established” religious message because it is not a message from a governmental official. Audience members are not so ignorant of the status differences of message sources as to confuse a student with the principal or superintendent or a school board member. In addition, such a “testimony” may not constitute the main theme of the student’s message or the major theme of the total “message” of the event.
I am sure that in time honest debate about this definition of “establishment” will remove the ambiguous elements in this definition. In clarifying this term I feel that we need to pursue a line of research that focuses as directly as possible on the presence of religion in American life as being essentially a “speech” act which should be analyzed, regulated and understood using all that we know of communication theory.
Having established these principles, which blend together communication theory with communication ethics, it is necessary now to bring them to bear on specific issues. How should we deal with efforts to erect Christmas creches? What is the best way to deal with the school prayer issue? How should we respond to those who object to religious symbols as part of city motto, logo or other corporate insignia?
Let us deal with the most hotly contested issue first, the issue of school prayer. It is my personal belief that prayer is primarily an internal conversation between the believer and God. It is neither an informative message nor a persuasive message. Efforts to validate public prayer as a primary or even secondary means to evangelize others who may have a limited exposure to the gospel are well intentioned but miss the central function of prayer. The proper context for prayer, I believe, is in the context in which believers seek intentionally and corporately for God’s will as a component of worshipping God. Such a context is not, I believe, present at football games, graduation exercises, the opening of bowling alleys or similar events. I find it difficult as a faculty member to focus on God at graduation exercises at my state-supported university when champagne bottles are popping around me. I believe that it is unethical to “slip in” a prayer in a context not designed for it or to use prayer as a means of doffing the hat to civil religion. The discussion of the relational message that believers send to non-believers raises the issue as to whether public prayer in non-worshipping contexts as we now program it could encourage free choice and feedback.
I would prefer we focus our efforts in encouraging and training students to incorporate their faith into forms of speech that can be more easily supported by a public consensus. Students who incorporate their faith into their valedictory address or decks out their mortarboard with the phrase “by the grace of God,” are making just as strong a witness and such efforts do not send the relational message that group pressure is meant to create in non-believers an attitude of prayer that is not present in them. Having indicated my personal bias, a bias more informed by my theological beliefs than by my understanding of communication theory, I believe that we utilize prayer in a way that conforms to the principles I have suggested.
I do not believe that a time of silent prayer violates the criteria I have suggested as necessary for the “establishment” of a message. While it is true that governmental funds might be construed as having created a “forum” for such a prayer, the other criteria of this definition would not be present. Silent prayer has no explicit theological content because it has no spoken content at all. Therefore it is not an “explicitly persuasive effort to recommend a religious belief system.” Spoken prayer obviously may have a partially developed belief system present in it and it may step over the line into persuasion when the person praying focuses statements in the direction of how the audience “ought” to believe or act. Silent prayer, because the content is “filled in” by the person who chooses to pray at that time, cannot be under the control of a governmental official in its delivery or content.
While the preceding suggestions are my preference, I also agree with Dr. Mathew Franck, assistant professor of political science at Radford University, that it would be possible to affirm the free will of those attending such public ceremonies and still satisfy the desire of many for a public prayer. Franck, in commenting about the most recent Supreme Court decision of Lee vs. Weisman argues:
Student-led rather than clergy-delivered prayer, as is contemplated up in Loudoun County, may not be a bad alternative. But it will not fully accomplish the object of satisfying the court’s new test without an additional step…. The crucial adjustment was suggested by Justice Antonin Scalia, dissenting in the Weisman case: “All that is seemingly needed is an announcement, or perhaps a written insertion at the beginning of the graduation program, to the effect that, while all are asked to rise for the invocation or benediction, none is compelled to join in them, nor will be assumed, by rising, to have done so. Add Kennedy to the four dissenters, as one plausibly may, and we have five justices who would conceivable have no problem with a public-school graduation ceremony that included in its program a statement that respectful listening is not the functional equivalent of joining in public prayer. 
One could extend Franck’s argument to bring it even more into line with the principles I have expressed in the following manner. Ministerial associations could sponsor a brief prayer service to begin 10 minutes before the official ceremony. This service would utilize clergy representative of the worshipping communities present in the community. The ministerial association could contribute to the total cost of address system, chairs, and the like in proportion to the total budget. This service would be clearly presented in all advertisements about the ceremony. Obviously an even better recommendation would be a fully developed worship service at another time and place than the publicly funded graduation service. Whatever the solution that we as a society arrive at, the solution must be focused on avoiding legal adjudication, preserving the free will of all of those who have a desire to see a relative or friend graduate, and formulating a public view of establishing religion that is based in a rationale view of communication.
Let us now consider the issue of creche scenes. It is at this point that the principles of fairly applying the same constrains on all messages and of using a consistent communication theory regardless of message content comes into play. If we, as a society, believe in the marketplace of ideas then contained in that affirmation is a need to focus on providing a proper forum for all ideas regardless of content. Minorities, like the K.K.K. have a right to turn city streets into forums for their ideas. The same right should be extended to believers. Churches should consider “parading” their faith in the same manner. Why not have a creche parade, reminding the citizens of the community that such a scene is more than just a sentimental cultural artifact but is a living ideology subscribe to by many of their neighbors. ?
Another solution might institutionalize the “mosaic tiles” of our culture that I wrote about earlier. A city could set aside an area in a prominent place for the exchange of opinion by community groups and institutions regardless of content. This would mean, of course, that the K.K.K. or the Neo-Nazis would have access to such an area. But it would also mean that Christians could present creches, Jews could present the Star of David, and Ba’hais could display the writings of Bahaula. This, I believe, affirms the rightful presence of religious faith in American society, acknowledges that anyone disturbed by such messages could “look away” or develop a “thicker hide” as well as avoids the ingredients of “establishing” religion since the content of such a forum would not be “established” by the government.
My distinction between informative and persuasive messages, I believe, deals with the proper disposition of complaints about the motto of a particular city or cases in which the city insignia of police may include a cross. Such non-verbal messages are informative in nature. They represent a factual message about the city’s past. If they are construed by any receiver as a persuasive message it is because of the cognitive dissonance created by the value system of the perceiver and not by any message intended by the city or any explicit religious creed advocated by the city.
I agree wholeheartedly with Cal Thomas who called recently for both liberals and conservatives to defend free speech. In his column he called for a “truce in the free speech wars” recommending that “conservatives should no longer oppose any speech or expression (except that which they might be forced to underwrite with their tax dollars) and liberals ... must no longer seek to regulate speech and expression based on content or according to whom they think it might offend.” He advocates for society to:
“Let the free-speech wheat and weeds grow together. Let all ideas be expressed so that, in a free environment, the best ideas will prevail. No minds are changed when mouths are silenced. How better to correct boorish, even racist thinking than by finding out who thinks this way and why? How better to promote understanding and tolerance for different beliefs, including religious beliefs, than to allow those beliefs unfettered expression?” 
Such a sentiment is echoed by Franklyn Haiman, former national secretary of the A.C.L.U., in his book Speech and Law in a Free Society. He writes:
“Unless the harm done by an act of communication is direct, immediate, irreparable, and of a serious material nature, the remedy in a free society should be more speech. The law is an inappropriate tool for dealing with expression which produces mental distress or whose targets are the beliefs and values of an audience.” 
I am not so naive as to believe that this article will be so persuasive as to make the A.C.L.U. and its conservative counterpart to lie down peacefully together. Nor am I so filled with hubris that I believe the principles I have attempted to forge are so undeniably immutable truth that they will escape criticism and correction. I do believe, however, that the proper road to some level of public agreement about the place of religious faith in modem American society can be entered by examining those principles of communication theory and communication ethics that undergird and correct all other forms of communication.Notes
I Robert Frost, “Mending Wall,” The Top 500 Poems, ed. William Harmon (New York Columbia University Press, 1992) 897.
2 Leo Pfeffer, Religious Freedom (Skokie, Illinois: National Textbook Company, 1977) 25.
3 George Barna, The Barna Report: An Annual Survey of Life-Styles, Values and Religious Views, 1992-93 (Ventura, California: Regal Books, 1992) 44-58.
4 John Stuart Mill, “On Liberty: Chapter Two,” History of Free Speech in Decision Making:
Readings and Cases, eds. James G. Backes and Donald J. Shields (Dubuque, Iowa: Kendall/Hunt Publishing Company, 1974) II.
5 U.S. Constitution, First Amendment.
6 Franklyn S. Haiman, Speech and Law in a Free Society, (Chicago: The University of Chicago Press, 1981) 6.
7 William W. Wilmot, Dyadic Communication (New York: Random House, 1980) 92.
8 Franklyn Haiman, Democratic Ethics and the Hidden Persuaders,” Quarterly Journal of Speech 44 (1958) : 385.
9 Richard Johannesen, Ethics in Human Communication, (Prospect Heights, Illinois: Waveland Press, 1990) 59.
10 Johannesen, 62-63. II Haiman, 139.
12 Haiman, 139.
13 Haiman, 155.
14 For further discussion of selective perception and other elements of dissonance theory see Charles Kesler, Barry Collins and Norman Miller, Attitude Change: A Critical Analysis of Theoretical Approaches (New York John Wiley and Sons, 1969) 191-237.
15 Haiman, 148.
16 “Schools Told to Drop Christmas,” Roanoke Times and World News 3 December 1992, AI.
17 “Frederick Rethinking School Christmas Ban,” Roanoke Times and World News, n.d.
18 Ray Penn, letter, Roanoke Times and World News, 4 January 1992, n.p.
19 Miller v. California, 413 U.S. 15 (1973) at
20 Matthew J. Franck, “Some Prayerful Advice for Graduation Day,” Roanoke Times and World News, 23 May 1993, C3.
21 Cal Thomas, “Both Liberals, Conservatives Should Defend Free Speech,” Roanoke Times and World News, 2 June 1993, A7.
22 Haiman, 425
By Dr. C. Ray Penn, Department of Communication, Radford University
Originally published in the print edition ofThe American Muslim