L4ffi!!,f{c!!~ SCHOOL PRAYER: Comparative Analysis of Litigation and Legislation
LITIGATION
The current policy on prayer in the schools, on what is and is not constitutional, is governed for the most part by five important Supreme Court cases and by various attempts at legislation, both successful and not.
Two of the Supreme Court cases deal with the broader issue of the teaching of religion in public schools, while three focus exclusively on prayer. In 1948, the Court ruled 8-1 that shared time programs, in which teachers from private religious groups were permitted to come into the schools to teach religion to consenting students, were unconstitutional (McCollum v. Board of Education). In addition, the Court ruled in 1952 that released time programs, in which students were permitted to leave the school grounds during the day to receive religious instruction at nearby religious centers, were constitutional (Zorach v. Clausen, 6-3) •
These two important cases on the teaching of religion paved the way for the Court's historic decisions on school prayer:
1) Engel v. Vitale (370 u.s. 421, 1962). In 1962, students in New York State were required at the start of each school day to recite a prayer composed by the Board of Regents:
Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our Country.
The State had a provision for the excusal or nonparticipation of students in cases where the student or the student's parents requested it. In a 6-1 ruling, the Court declared that the requirement violated the establishment clause.
2) Abington School District v. Schempp (374 U.S. 203, 1963). In this case, the Court struck down a state requirement that each school day begin with readings from the Bible and the unison recital of the Lord's Prayer (there was a provision for excusal, under the same terms). The Court ruled 8-1 that the requirement violated the establishment clause.
3) Wallace v. Jaffree (No. 83-812, 1985). In this case, the Court ruled 6-3 that an Alabama moment-of-silence statute also violated the establishment clause. The Alabama legislature had changed existing law by passing a statute requiring a moment of silence at the start if the school day for "meditation or voluntary prayer." The bill's sponsor had indicated that the legislation was an "effort to return voluntary prayer" to the public schools. As such, the Court found that the state did not 1424 Sixteenth Street, N.W., Suite 601, Washington, D.C. 20036 202-462-4777 present any -evidence of secular purpose and that the law was invalid because it "affirmatively [endorsed] the particular religious practice of prayer."
The Court has recently agreed to hear another moment-of silence case, this time from New Jersey. This case differs from Jaffree in that the statute does not mention the word prayer.
LEGISLATION
1) Equal Access Law. This 1984 law passed with an overwhelmingly positive response in both the House and Senate, and was enthusiastically signed by the president. The law is based on a 1981 Supreme Court decision which required the University of Missouri to allow a student religious group to meet on campus. The law permits students to hold religious meetings in public high schools before or after regular school hours. All religious meetings must be voluntary and initiated by students, without sponsorship by a school or its teachers, who could be present only as nonparticipators (i.e., in a supervisory capacity). The law was enacted in order to clear up a misunderstanding by many school districts of the Court's decisions on school prayer. Since the courts have found that organized prayer in public schools violates the constitutional principle of separation of church and state, many school districts interpreted this as banning religious meetings on school grounds.
2) School Prayer Amendments. Two amendments to the Constitution were proposed in the 98th Congress. Neither was successful.
a) S.J. Res. 73. This amendment was proposed by President Reagan, and stated:
Nothing in this Constitution shall be construed to prohibit individual or group prayer in public schools or other public institutions. No person shall be required by the United States or any state to participate in prayer. Neither the United States nor any State shall compose the words of any prayer to be said in public schools.
The amendment was proposed in June of 1982. In March of 1984, the wording was changed to read "individual or group, vocal or silent prayer," but the amendment was still unsuccessful.
b) S.J. Res. 212. This amendment was proposed by Senators Hatch, Grassley, and Thurmond in January 1984. It stated: Nothing in this Constitution shall be construed to prohibit individual or group silent prayer or meditation in public schools. Neither the United States nor any State shall require any person to participate in such prayer or meditation, nor shall they encourage any particular form of prayer or meditation. Nothing in this Constitution shall be construed to prohibit equal access to the use of public school facilities by all voluntary student groups.
This amendment was also unsuccessful. Talking Points on School Prayer
2/1~/87
BACKGROUND: The issue of school prayer is again in the public spotlight in two ways: a new proposed constitutional amendment and an expected Supreme Court ruling. These are:
Proposed amendment: S.J. Res.37, sponsored by Orrin Hatch and
Strom Thurmond, iniroduced on 1/28/87. Virtually identical to the voluntary silent prayer constitutional amendment introduced in the 99th Congress.
Provisions:
-- would allow for brief moment of silent prayer or reflection by public school students, to be administered at the discretion of state and local officials
-- state and local authorities could choose to allow
"devotional opportunities" to the fullest extent permitted by the amendment: on a weekly or daily basis, or not at all
-- would allow "minority religion" students to absent themselves from the classroom during this period if they so desired
-- teachers or administrators would be responsible for formally announcing the period for silent prayer or reflection, ensuring discipline during that period, and formally concluding the period. They must make clear that either silent prayer or silent reflection is permissible. 1424 Sixteenth Street, N.W., Suite 601, Washington, D.C. 20036 202-462-4 777 students are permitted to use religious articles, such as
rosary beads and prayer cards during the period of silence.
-- participation is voluntary and students not wishing to participate at all in the "devotional exercise" should be allowed to leave the classroom
Supreme Court review of New Jersey Moment of Silence Law (1982; the case is Karcher v. May): The Court has agreed to review the constitutionality of this law, which allows public schools to begin the day with a moment of silence but does not specifically mention prayer. Some 23 states have similar laws.
POTENTIAL PROBLEMS WITH THE AMENDMENT
1. If the moment of silence were truly neutral, there would be no need to mention prayer specifically or to make specific provision for "minority religion" students or others unwilling to participate to leave the classroom.
2. The amendment specifically calls the moment of silence a
"devotional exercise," which is not the same as a neutral moment of silence.
3. There is no limit to the number of "devotional exercises" that can be scheduled during the day, nor is there any limit to the duration of such exercises. 4. Children are highly susceptible to the influence of peers and authorities like the teacher. Children who are not religious, or who are members of a religious minority in a community with a strong and vocal religious majority, may feel coerced into participation.
5. This could represent an effort to introduce state-sponsored prayer into schools through subtle, "back-door" means.
PFAW POSITIONS
1. We support the Supreme Court ruling in Jaffree v. Wallace, which struck down an Alabama state law permitting a moment of silence because it specifically included prayer. We support a moment of silence that is truly neutral -- that is, that neither encourages nor discourages prayer.
2. We oppose the new proposed amendment because it is not neutral with respect to religion. It specifically mentions prayer as an option; it states that school personnel would have to mention silent prayer as an option; it specifically refers to devotional exercises and devotional opportunities.
3. We oppose the new proposed amendment because it is unneccessary:
-- Schools can now begin the day with a moment of slience for prayer, reflection, or meditation.
-- Students can pray aloud at any time during the school day when unsupervised conversation is allowed, such as lunch period or between classes.
-- There is nothing to prevent any student from praying silently at any time during the school day.
4. We support teaching about religion, through the study of world and American history, comparative religion, or the literary and historical aspects of such religious texts as the Bible. We also support the 1984 Equal Access Law, which gives student-led religious groups the right to meet on school grounds during noninstructional periods.
5. Public schools are for learning, not devotion. They face . other, more pressing problems that should command the time and energy of teachers, students, and administrators: improving math and science achievement, upgrading reading and writing, strengthening the curriculum, and salvaging young people at risk of failure. These school prayer initatives are a needless distraction from the central problems and process of education.
6. We oppose any form of state-written or state-sponsored prayer, especially organized, vocal prayer, because it violates the Establishment Clause of the First Amendment. Any state- sponsored prayer is bound to leave someone out because it cannot possibly encompass the diverse religious beliefs of this nation. RELATED FACTS/QUESTIONS
-- the call to "restore prayer to our schools" is misleading.
A survey done in 1962, around the time of the Supreme Court
ruling prohibiting prayer in the schools, revealed that more than
91% of school systems in the West and 74% in the Midwest did not conduct prayer in their schools. (CITE: LA Times 8/27/82; the
study was called "Religion in Public Schools" and was done by
Richard B. Dierenfeld, Macalester College, St. Paul, MN)
-- what about public ceremonies (invocations, Pledge of
Allegiance, etc.) that make mention of God? The proposed amendment would not cover these. These are are ceremonial, not
devotional, in purpose.
-- Congress starts its sessions with a prayer. Why doesn't this violate the First Amendment? Members of Congress are not
susceptible to the same kind of coercion that a child in a class with a teacher leading a prayer would be. They are adults who
can choose not to participate in that portion of the session.
FALWELL QUOTE
"It was a sad day when, twenty years ago, the Supreme Court expelled Almighty God from the halls of the public classrooms of
this country. Since that time, because of that, every moral and spiritual arid academic disease has broken out upon public education •••• And until God Almighty, who is Light, is back in those schools, we're not going to have any academic improvement, and the drug epidemic and the moral permissiveness that has virtually wiped out public education in this country will continue like a cancer to do the same." (Aug.l983) STATEMENT OF
FRANCES A. ZWENIG
00 BEHALF OF
PEOPLE FOR THE AMERICAN WAY
BEFORE THE SENATE JUDICIARY CCM-1ITI'EE
UNITED STATES SENATE
00 s. 1059
August 3, 1983
Mr. Chainnan and Msrbers of the Carmittee:
My name is Frances Zwenig and I am here today on behalf of People
For The Arrerican Way, a nonprofit, nonpartisan, educational project
forned in the fall of 1980 to protect and prarote Arrericans'
constitutional freedans, especially those contained in the First
Arrendrrent. I am pleased to aJ_:pear today on behalf of PEOPLE FOR to
present our views on S. 1059.
1015 18th Street, N.W. • Suite 300 • Wash., D.C. 20036 • Telephone 202-822-9450 A Project of Citizens for Constitutional Concerns, Inc. -2-
Once again I would like to state the oprosition of People For The
Arrerican Way to any attenpt to azrend the First Am:ndment. 'Ibis is the
fourth appearance before the Senate Judiciary Camri.ttee within a year
in which we have expressed our oprosition to such efforts. 'lbe bill
before yoo today may be the nost troubling of all that we have
testified against, for it seeks to alter the First Arrendment to the
United States Constitutio~ by a sinple majority vote, unlike the
constitutional amendment, route which at least requires a two-thirds vote by both Houses of the Congress and ratification by three-quarters of the state legislatures. Briefly stated, S. 1059 uses the fact of
federal financial assistance to open up elarentary and secondary
schools to challenges by individuals praroting student religious activities on school pretl'ises.
This legislation is also troubling because it shaNs a lack of appreciation of the genius of our Founders in establishing a governrrent characterized by a separation of pc::Mers and a system of checks and balances. S. 1059 illustrates a recent trend in the United St.c;tes
Congress - that of introducing a bill whenever one disagrees with a "':-..- lower federal court decision. Heretofore, one could always urge a wait to see how the Suprene Court would rule on the issues being debated.
Without this respectful restraint, limited financial and intellectual resources of the legislative and judicial branches could be wasted needlessly. Parenthetically, prqx::>nents of this piece of legislation have to acknowledge that the lower federal coorts have ruled in their favor at least as often as they have ruled against them. -3-
We at PEDPLE FOR are also very concerned about what the passage of this legislation might mean for our schools - already so overburdened.
As a 7l.atienal ccmnission recently found, the real problem facing schools tOOay is rrediocrity. 'Ib spend valuable legislat-ive tiTre dealing with the red herring of Bible teaching is, at a mininrum, disappointing. I am afraid that this red herring could create unnecessary tensions even though the last thing administrators, teachers and students need is to be thrust into sectarian strife.
Public schools have fulfilled the expectation of them as an important unifying force in our pluralistic society by bringing together children from vastly different backgrounds and teaching them to work and play together. Although the public schools should respect the religious diversity of the assembled students, it is clearly neither the responsibility nor the constitutional right of governm:mt or the public schools to engage in religious instruction.
<;:__ ,_
Sare proponents of S. 1059 rraintain that through their legislation they do not propose that schools engage in religious instruction; rather they want to protect the First Amendment rights of students who want to exercise their religious freedans. The response is quite si.rrple: the law already protects those students where the school authorities are not involved and the students are voluntarily exercising their right to free religious speech. See Bender vs.
Williamsport Area School District, No. 82-0692. (Middle D. Pa, May 12,
1983). Country Hills Christian Church vs. Unified School District, No. -4-
82-2345 (D. Kan. t-larch 29, 1983) , and the Suprerre Court decision in
Widmar vs. Vincent, 454 U.S. 263 (1981).
These cases all derronstrate that the constitutionality of studa~ts' religious activities on public school grounds depends totally on a case by case evaluation of thorny factual questions. Such carplex considerations with constitutional overtones do not lend t.h=mselves to broad federal legislation.
If this legislation were to pass, the judicial floodgates would cpen. Since religious speech is already protected by the Constitution and th= courts, and there are already adequate legal rerredies available, we would see a new generation of case law on unconstitutional attempts to establish religion in the schools - all encouraged by the passage of S. 1059.
A good exa.nple of the problems with shifting the presurrption in the arena of religious activities in public schools, as would happen with the passage of s. 1059, was foreshad~ in Corvallis, Oregon last rronth. School prayer advocates cane before the Corvallis School Board and argued that Public Law 97-280, designating 1983 as the "Year of the
Bible," rreant that "a study of 'the Holy Scripture' should n.c:M be made a part of every public and private school curriculum." A copy of their position paper is attached as Exhibit "A" and should be made part of the record. -5-
We request, therefore, that this Corrmittee require of the bill's proponents sare sort of "judicial inpact staterrent" to evaluate the costs te- the judicial system should this bill pass. S. 1059 VlOUld not be cost free.
Let rre suggest to you just a few lawsuits that I can envisage right now with the legislation as it is presently drawn:
(1) There will be a cr~llenge to the bill's equating religious
activities to other extra-curricular activities.
(2) There will be a challenge to the definition of "non
instructional period."
(3) There will be a challenge to the notion that elementary
school, and even sare secondary school, students can
"voluntarily" choose to engage in religious activities.
( 4) There will be a proliferation of factual challenges
questioning whether a school has a true "open forum" policy.
( 5) There will be challenges to new school policies espousing
"open forums" if there has been a prior history of
unconstitutional practices, as with the Lubbock school
district. -6-
New and old cC:rmtunity wounds will be cpened., and the courts will be wasting scarce judicial resources.
The rrost unfortunate aspect of 'the debate over 'the First Arrendrrent in the last few years is that it totally ignores the reality of what is going on in our nation's schools. The truth of the rratter is that, despite the 1962 and 1963 Supreme Court decisions and subsequent laver federal court decisions, religious instruction takes place in public classrooms today at the cost of the religious freedoms of many students and teachers.
By way of illustration, I would bring your attention to the preliminary findings of a survey by People For of public schools in
North Carolina that examined the extent of school prayer and religious instruction. A full oopy of the study, which will be released next week, will be submitted for the record. Preliminarily, we have found that prayer is oonducted at various tirres in over one-quarter of the public schools and that forrral religious instruction exists in 9 percent of North Carolina public schools, with over 60 percent of organized religious instruction being acqredited classes. And North
Carolina is not atypical, we fear.
Mr. Chairrran, 'the religious instruction of children is 'the responsibility of parents and their churches, not the public schools. -7-
I would like to bring to your attention a :p<:Merful statement by a distinguished forrrer member of this carmittee on this very subject.
Fo~r N?rth Carolina Senator Sam Ervin, Jr. recently wrote:
Religious faith, which is tolerant of other beliefs,
is, in Il¥ opinion, the rrost wholesare and uplifting
~ron earth ••• The ugliest chapters in history are
those that recount the religious intolerance of the
civil and ecclesiastical rulers of the Old ~rld and
their puppets during the generations preceding the
framing and ratifying of the First Arrendrrent ..••
Many sincere persons charge that the school-prayer
cases show the Suprerre Court to be hostile to
religion. This charge is untrue and unjust. In
these cases the SUprerre Court was faithful to its
judicial duty. It enforced the First Arrendrrent, ·-- which ccmnands gove:rnrrent to maintain strict
neutrality regarding religion, neither aiding nor
opposing it.... The First Anendrrent forbids the
states to teach religion to ~ children attending
their public schools.
Those who demand that the public schools of the
states be made instrurrents to teach religion are
rrotivated by their desire to have the children
attending them taught the religious beliefs of their
particular sect of Christianity. -8-
The word religion as used in t.h: Constitution is not
restricted in its neaning to any particular sect of
Christianity, or to the Christian religion in
general. It embcdies Buddhism, Judaism,
Muh.antnadanism, Shintoism, and all other religions;
and the Constitution coP.fers on all persons of all
religious persuasions an equality of Constitutional
right. If those 'Who demmd the public schools be
:rrade inst.rurrents to teach religion would pause and
fOnder these things, the ardor of their darand might
abate.
v1e at POOPIE FOR could not agree nore. _We hope that the questions raised by Senator Ervin and the :rrany groups 'Who have testified on this legislation will be taken into account and that t.h: Camtittee will not report and the Senate not pass S. 1059. ·.. J( THE GOVERNMENT OF TifE Ul'l'ITED STATES BY. AN ACf OF CONGRESS HAS DECLARED THAT THE BffiLE EXHIBIT "A" IS "THE WORD OF GOD" AND "HOLY sCRIPTUJiEn
The United States Congr;,:: has settled it. '[he Bible is now officially proclaimed bv a Law of the United States to be •;pu;..wwa f' rwt"' •• I a -Public Lav.:._?7-28(_? (see .other side) is not just a statement by Congress. It is a Law, an official Act of the eJected Representatives of the People of the United States sitting in Law-making session. That the Holy Bible is "the Word .of God" is now "the Law of the Lang." In addition Public Law 97-280 states "that renewing our knowledge of and faith in God through Holy Scripture can strengthen us as a nation and a people," and it rules that the United States has a "national need to study and apply the teachings of the Holy Scripture. •• As surely as it was the intent of the first U.S. Congress that the Government not interfere ·with the Ou-istian religion, just as surely as it has now been det:lared the intent of the 1982 United States Congress that the Bible is ..the Word .of God" and that the People of the United States should use "the Holy Scriptures'' to renew their ••faith in God." Under Pu · Law 97-280 a · f "the Holv Scri ture" should now be made rv rivate ~Qlool ffi:riCJil.J!!R· The Law does not say it is the. "right'' of people to study the Bible, the Law says, "our knowledge .of and faith in God through Holy Scriptures can strengthen us as a nation and a people." Anyone attempting in any way to prevent any American citizen from acquiring that "knowledge of and faith in God through the Holy Scripture'' is attempting to weaken America. For instance, indiv!duals and or anizations who advocate the banning of the Bible !!pm the public schools or who actively oppose any Bible study group or interfere in any way with a nsnan Oturch would be guilty of violating this Law and probably uiltv of sedition a ainst the United States of ·ca. The American People are a law-abiding People. Every American who believes w at lie Law 97-280 says should not only obey this Law, but should actively work to inform other Americans about this Law to the end that it will become widely observed throughout the United States and its territories. This would not only be pleasing to Almighty God, but, according to the U.S. CongTess, would benefit our People exceedingly. Disobedience of this Law. should be discouraged in our own communities and in the nation at large. Copies of Public Law 97-280 should be given to friends, neighbors and especially to public servants who can then take whatever action is necessary in their own departments or under their .own realm of authority to comform to Public Law 97-280. All Elementary, and High School Principals, Superimenaeuts and College Presidents should be given copies and urged to We immediate steps to add courses pf Bjble studv to thejr school curriculum to bring_tpem into conformitv ;Wth thC jptept pf Congress, W'rth the wide dissemination of copies of Public Law 97·280 all America will come to know that the marvellous Truth that the Holy Bible is .. the Word of God" has now been made .. the LB.w of the Land." They will see that in that Law the People's Representatives have recognized the "need" for all Americans to .. study and apply the teachings .of the Holy Scripture." .,. The study of the Holy Scriptures leads to Jesus Christ. Jesus said of the Scripture, ..They are th~y which testify .of Me. •• (John 5:39b.) Therefore, this will be is another significant step by our Nation and our People toward that day when .. every tongue should confess that Jesus Christ is L:"·d, to the glory of God the Father." This is a marvellous thing and is quite obviously the Hand of God ruling and overruling in the affairs of our Nation. Praise Jesus! Pray that God will bless America in this, through Jesus Christ, Pastor Sheldon Emry
Copies of this sheet with Public Law 97-280 on the other side are available from Lord's Covenant Church or America's ~e, PO Box 5334, Phoenix, Arizona 85010. Up to 100 copies will be sent free to one address. Our printing cost is about 3 cents a copy and for larger orders we would appreciate an offering to pay the printing and postage costs .
• . ' l ....:
- ; ~
PUBLIC LAW 97-280 [S.J.Res. 165]; October 4, 1982 ...... ~.- YEAR OF THE BIBLE-DESIGNATION lotienol Jt;..t a.. ol.,tion authori1ing and requoating tho President te ptOCiaim 1983 .. tho "Y- el tho --~ llblo". most ,ivery Whereas the Bible, the Word of God, has made a unique contribu . ·tion in shaping the United States as a distinctive and blessed ,racti " ·nation and people; 'ution Whereas deeply held religious convictions springing from the Holy Scriptures led to the early settlement of our Nation; :::and Whereas Biblical teachings inspired concepts of civil government from 'that are contained in our Declaration of Independence and the Constitution of the United States; r bas Whereas many of our great national leaders-among them Presi 11tic ~-: dents Washington, Jackson, Lincoln, and Wilson-paid tribute to I ne. .".the surpassing influence of the Bible in our country's develop- . ment, as in the words of President Jackson that the Bible is "the rn.ik>d · · rock on which our Republic rests"; >vem Whereas the history of our Nation clearly illustrates the value of :ional · :-,· voluntarily applying the teachings of the Scriptures in the lives of i and ~ ... individuals, families, and societies; !nited · J&ereas this Nation now faces great challenges that will test this · ·:. Nation as it has never been tested before; and Whereas that renewing our knowledge of and faith in God through >.~Holy Scripture can strengthen us as a nation and a people: Now, ~.:·~.. ~ therefore, be it
~~TIVE HISr0RY-8.J. Res. 166: .. 28 -~~i~~~~~d~ ~= .·.;.: .· ·>·· ::· f~- •• •••_, "' ·.;. '.;!e?,t- 21, considered and paseed H~ua. ·. ··; ·,;,:z:•:~·, --·:;.:: .. , .. ·:".·-:'' .. •,;< ·,· .• : ..~,: .·'- .. ' .. l:::< 96 STAT.-- t211': _.::.· :- ""----· .. .~-. :_ ~.- ·. -. ' .. :tr*? People For The mer1can
For Info:rmation, call: David Kusnet, Christy Macy or Nancy Stella at (202) 462-4777
Editorial Merrorandurn
THE PROPOSED SILENT PRAYER AMENDMENT AND THE FIRST AMENDMENT
A little-noticed proposed constitutional amendment on "silent" prayer
is likely to reach the Senate floor for a vote by early April. On the
surface, the proposed amendment seems s.irrg;:lle and straightforward. But on
closer inspection, it is neither. Rather, it poses a very real danger to
First Amendment rights.
Unlike other proposals which clearly suggest changes in our system of
government - such as Senator Jesse Helms' plan to rerrove school prayer
fran Suprerre Court jurisdiction - the silent prayer amendment introduced
by Senators Orrin Hatch (R-Utah) and Dennis DeConcini (D-Ariz.) appears
hannless. That is one reason the Senate Judiciary Carmittee passed it by a
12-6 vote. The amendment says:
~ Nothing in this Constitution shall be construed to prohibit individual or group silent prayer or reflection in public schools. Neither the United States nor any State shall require any person to participate in such prayer or reflection, nor shall they encourage any particular form of silent prayer or reflection.
The proposed amendment goes far beyond merely providing a neutral
manent of silence in which the right of students who wish to pray silently
is protected. It "WOuld, for the first time, create a goveri'lirel1t-sponsored
"devotional exercise" in the public schools. By inviting the federal
1424 16th St., N.W. • ·Suite 601 • Washington, D.C. 20036 • Telephone 202-462-4777 -2-
goverrment -- or any religious group -- to pressure local school districts
to provide such an exercise, this amendment presents a serious threat to
the .Arrerican' tradition of separation of church and state.
The-amendment's sponsors argue that the amendment is needed because of
a 1985 Suprerre Court decision involving an Alabama case, Wallace v.
Jaffree. But in fact, no law -- including the Jaffree decision -- prevents
state or local govermnents that wish to bring a m:::ment of silence into the
school from doing so -- as long as they don't promote or oppose religion.
Justice Sandra Day 0 'Connor, President Reagan's appointee to the court,
said in her opinion in the Jaffree case: "Nothing in the United States
Constitution as interpreted by this Court or in the laws of the State of
Alabama prohibits public school students from voluntarily praying at any
time before, during, or after the school day. "
I • THE II SILENT PRAYER II AMENDM:Et-..1'1' CRFJi.TFS GOVERNMENT-Sl?ONSORED PRAYER
An analysis of the "marent of silence" envisioned by supporters of the
silent prayer amendment (known formally as Senate Joint Resolution 2)
reveals that they are not talking about a truly neutral m:::ment of silence
in which sare students may pray; they are talking about a devotional
service that is "silent" in voice only.
The Senate Judiciary Coornittee report on the amendment says: "It is
intended that the Government be authorized to sponsor such prayer or reflection, to the extent of pennitting the classroom teacher or other
school administrator to structure the opportunity for prayer by formally announcing the period for silent prayer or reflection, ensuring discipline during the period for prayer, and formally concluding the period for prayer." -3-
The Rerort · also says:
** the amendment's goal is "the dismantling of the unbridgeable 'wall of s_~parc:tioh' " between church and state.
** state and local authorities would have the discretion to "structure a devotional exercise consistent with this amendment." (A "devotional exercise," whether vocal or silent, in the public schools is very di fferef1t fran a neutral rocrnent of silence. )
** "minority-religion students" would be all~ to leave the classroan during the rocrnent of silence. (If a rocrnent of "silence" is truly neutral, why is there a need for any student to feel uncanfortable?)
The amendment also raises a number of troubling questions concerning the parameters of the law. It is not clear whether the amendment would prevent students fran passing out prayer cards or other religious materials during the "devotional exercise." The Carrnittee rerort says: ''We would see no difficulty, for example, with authorities pennitting Jewish students to wear skullcaps during the rocrnent of silence, or catholic students to hold rosary beads, or other students to read fran a written card supplied by their church."
There is nothing in the prorosed amendment to limit the number of
"devotional exercises" to be scheduled dyring the school day. Nor is there anything in the am:mdment to limit the duration of such exercises.
Walter Dellinger, Professor of Law at Duke University, warns that while the prorosed amendment says that government may not require students to take part in silent prayer or reflection and may not encourage "any particular form" of prayer or reflection, it does not prohibit governrrent -4-
or school officials fran encouraging participation in the silent devotional services themselves.
Dellincjer says the proposed amendment would "rerrove the present First - Amendment barrier that precludes federal government officials fran taking
- steps to :persuade children to engage in silent prayer exercises, or fran ilrposing federal silent prayer guidelines on state and local school sys- tans." He argues, for example, that under the proposed amendment, the federal government could require school districts receiving federal funds to meet minimum standards, specifying the type and number of "silent" prayers required.
The Carmittee report describes the right of every student to pray at will in school as "trivial." Yet when local authorities are allo.ved to
"structure a devotional exercise," the same silent prayer becanes meaning- ful. It is telling that to proponents of the amendment, the difference between a silent prayer to God that is "trivial" and one that is meaningful is government sponsorship.
II. THE AMENDMENT IS UNNEX:ESSARY
Sponsors of the Hatch-DeConcini Amendment begin with the erroneous assumption that the U.S. Supreme Court decision in Wallace v. Jaffree in
1985 effectively overturned all state laws providing for a m::ment of silent rneditation in public schools. In order to understand why this claim is false, it is .important to look at the history of the Jaffree case.
There were three school prayer-related laws in Alabama:
** A 1978 law authorized a one-minute :period for silent meditation in all public schools. The district court held that there was nothing wrong -5-
with this statute, and the plaintiffs did not challenge that ruling before
the Suprerre Court.
** A 19'81 law provided that teachers could lead all "willing students" -· - in reciting a prayer which had been drafted by the governor's son and had been set out in the legislation. A lower court ruled this provision uncon-
stitutional, and the U.S. Supreme Court sumna.rily upheld that ruling.
** Another provision, also adopted in 1981, added the words "or voluntaJ:y prayer" to the 1978 law. An Alabama court upheld this law, and it was this law that was overturned in Wallace v. Jaffree.
The Court held that adding "or voluntary prayer" added no legal protection that was not already provided for in the 1978 law and arrounted to government encouragement of silent prayer. '\'Jriting for the majority,
Justice John Paul Stevens said, "Only two conclusions are consistent with the text of the (1981 law): (1) the statute was enacted in order to convey a :rressage of State endorsement and prarotion of religion; or (2) the statute was enacted for no purpose. No one suggests that the statute was nothing but a :rreaningless or irrational act. ••-
This context makes it clear that the Court saw no constitutional difficulty with the 1978 Alabama law which provided a manent of silent meditation at the beginning of the school day. The whole thrust of the
Court • s opinion is that a state may set aside a m:::ment of silence in which students may choose to pray; what they may not do is go beyond that and have the government formally endorse prayer as the officially approved use of that manent.
In the majority decision, Justice Stevens, writing for Justices
Brennan, Marshall, Blackrrnm and Powell, said: "The legislative attenpt to return prayer to the public schools is, of course, quite different fran -6-
merely protecting every student's right to engage in voluntary prayer during an appropriate m:::rnent of silence during the school day. The 1978 statute already protected that right, containing nothing that prevented any student fran engaging in voluntary prayer during a silent minute of meditation."
In a concurring opinion, Justice Sandra Day O'Connor wrote:
Nothing in the United States Constitution as interpretoo by this Court or in the laws of the State of Alabama prohibits public school students fran voluntarily praying at any time before, during, of after the school day •.• 'IWenty-five states permit or require public school teachers to have students observe a m:::rnent of silence in their classrOCinS. A few statutes provide that the m:ment of silence is for the purpose of rreditation alone ... The typical statute, however, calls for a rocment of silence at the beginning of the school day during which students may rredi tate, pray or reflect on the activities of the day •.•.
Even Justice White, one of the dissenters in the Jaffree case, said his reading of the majority opinion loo him to conclude that "a majority of the court would approve statutes that provide for a rocment of silence but did not mention prayer."
A fair reading of all of these opinions makes it clear that if the
Court were to review a m:rnent-of-silence law other than the one representoo in the Jaffree case, it would uphold it by a 9-0 vote.
CONCLUSIOO
The premise offeroo by supporters of the Hatch-DeConcini Amendment is doubly flawed. It assumes that the U.S. Supreme Court has mandatoo a hostility toward religion and that it has voidoo state moment of silence laws. Neither premise is correct -- neutrality toward religion does not constitute hostility and, as the above analysis shows, the Court supports m:::rnent of silence laws in which prayer is an option, not a preferroo choice. -7-
Indeed, consider the many ways in which religion may be acJmowledged or accartrodated in the public school day according to current law:
** The 'school day may open with a rro:nent of silence, in which students who chose to do so could rredi tate, reflect 1 or pray.
** Students may pray aloud at any time during the school day when unsupervised conversation is allowed 1 such as during lunch period or in between classes.
** Under the 1984 Equal Access Act, student-led religious cltlbs may meet on school grounds on the same basis as other non-curricular clubs such as the chess or bridge clubs~
* * Students may learn about the role religion has played in world and American history, study comparative religion, or study the literary and historical elements of the Bible.
The silent prayer amendment adds nothing to the already existing right of students to pray in school. Adopting an amendment that provides for prayers that are non-vocal does little to guarantee that they will be voluntary and nonintrusive.
Senator Charles .M..athias (R-.Md.), in surrming up his opposition to the
Hatch-DeConcini Amendment 1 raises a further concern: the specter of a possible new religious "litmus test" for school board candidates. He says:
Today, our public school classroans are supposed to be dedicated to
learning. But under S. J. Res. 2 1 they could be given over 1 once or twice or ten times a day, to devotional exercises. Today, questions of religious observance do not figure in the processes by which Americans
select members of local school boards. But under S. J. Res. 2 1 the issue of whether or not to choose 'to structure a devotional exercise' could be injected into the political arena.
My examination of the proposal contained in S. J. Res. 2 convinces me that the distinction between state sponsored silent am oral prayer is not of sufficient constitutional significance to justify a different -8-
position on the two approaches. A constitutional amendment to authorize- either kind of prayer in public schools will irreparably breach the policy of separation of church and state which is the essence of the Establishment Clause of the First Amendrrent. This repudiation of the central principle of our Bill of Rights ought to be __ rej~ed. *** SCHOOL PRAYER / "Fot' the most pat't, ir• this colmtry, the pt'actice c•f any type of t prayer, be it voluntary or compulsory, is not allowed. There are a fe~ re~egade school principals here and there that are still practicing it, but if they were caught by the ACLU that would be elirt1ir.ated c•vet'rtight. "- MICHAEL FARRIS
"The Const it ut ior.al startdat'd fc•t~ out~ sch•::ools is supposed to be religious neutrality but it has become far beyond religious neutrality to anti-Christian and anti-religious hostility. To a Christian, the Bible says that fear of the Lord is the beginning of knowledge and just to allow a child to acknowledge God at the beginning of the school day, simply accommodates his religious be 1 i efs~ it doesr•' t fot'Ce it C•n anyorte e 1 se but by sayi rtg yc•u can't bring God into this classroom in any way, shape or form is not neutral to that Christian child who believes that God is the found at i c•n fo:•t' his 1 earrti rtg. " MICHAEL FARRIS
CENSORSHIP "Det'ogatot'Y t'efet'ences to Gc•d and Cht'ist and the Bible at'e made constantly but any type of positive situation that would be interpreted as witnessing or promoting the gospel in any way would be illegal, while the promoting of the humanist gospel or the anti-Christian message is perfectly permissable in many at'eas." MICHAEL FARRIS
SCHOOL PRAYER ( "The inb-oduction to:• this pt'c•gt'am talked about YQ!!:.!Di~!:X:_2il~Di \ Q!:§X:~c, and I think it's very important to emphasize each one of those words .•• I think that the silent nature of it-- I would be opposed to anyone getting up and leadi~g prayer in the classroom, particularly the teacher or principal because more as likely as not, they would say, "Deat' heavenly mothet'," Ot' something like that, knowing the humanistic background of a lot of the teachers, so I think that what should be done basically is two things that need to be changed. One is the moment of silence at the beginning of the day, where the teacher would say you can pray or meditate or just be silent during this time, to allow people to accommodate their religious beliefs. And secondly, there's a lot of groups of students who would like to meet before school or after school or during lunch or during a free period when other student groups are meeting but they're not allowing voluntary student gt'C•ups tc• get tc•gethet' artd pt'ay ar.d t'ead the Bible."
''In 1962, the Supreme Court decided a case that was brought by a number of people, including the famous Madalyn Murry O'Hair. And in that case, children were obligated to pray or read the Bible in certain schools o~ the east coast. Now, they could excuse themselves from the room, but the Supreme Court said that kind of context still compelled the children's conscience. That's the big difference from what we're talking about today and how it has evolved over the years from saying that children can't be forced to pray to say they can't be allowed to pray even silently at the begil'H'"dr.g o:•f the day."
EDUCATION "The trend is to take away any biblical basis from teaching moraTity: The argument is that if you teach that the Bible says that abortion is wrong, you can't teach about abortion at all, in the public schools, ih a positive way, in a pro-life way. You can only teach about it from the other perspective, that is the Planned Parenthood, pro-abortion type approach." MICHAEL FARRIS
SCHOOL PRAYER ~8£t~e!!~L-~bet __ ~~~~~-t~~ing_tQ_QQ_ia_nQt_Qn!~-!~t_£bi!Q~~n_Q~~~ ~§_tb~~-~ent_tQ_Qn_~-~Q!~nte~~-~eaiaL-~~t_e!aQ_tQ_e£hDQ~!~Qg~_tb~ fe£t_tbet __ tb~~~-ia __ §Qm~QD~-~Q __ tb~~~-Qe~inB_ett~ntiQD_~b~n_tb~~ P.~e~_enQ_meh~_it_e_~QQ=£QD2£iQ~§ __ ~n~i~QDm§nt_in __ ~bi£b_tQ __ gQ_tQ §~QQQ!L_iD2i~eQ_Qf_e_§~£~!~~--Qr_~=§QQ_~n~i~QDm§nt~·· TIM LAHAYE
In response to a question about whether silent prayer would be a satisfying solution, and wouldn't it be possible to have a representative prayer for the classroom, Ferris replied:
"That wo:••.tld be possible ir• at~eas with a vet~y high agt~eemer.t ar.1c•r•g the local constituency of what would be a representative prayer and the democratic process would work pretty well especially since the context of the amendment that I've been told would be the likely amendment says no one would be forced to.participate and they would come up with some kind of a non-sectarian prayer and if that's acceptable to those rare communities in America f where there is a high level of agreement that would be \ potentially permissable but the vast majority of the communities in America would be so split on what i~ acceptable I would say ninety percent of American communities would be the silent situation." MICHAEL FARRIS
"Gr~c••.tps like the ACLU ar.d c•thet~s ir• the liber~al media basically make it seem as if everybody is going to be forced to pray and there will be certain ministers who will write the prayer and ever~ybody ir. Ar.ler~ica wi 11 have tq< bc•w dc•wr• t•:• the same pr~ayet~." MICHAEL FARRIS
SECULAR HUMANISM "Basically the ACLU is a cc•-labc•rer~ ir• the humardst effot"'t; ir• the Humanist Manifesto Two, they say we're trying to create a secular society on a global scale. And that is what I believe is at the heart of groups like the ACLU, in trying to wipe out any pcossible ackr•C•Wledgemer.t C•f God ir• c••.tr coLmtry." TIM LAHAYE
SCHOOL PRAYER "You' t~e pt"'C•bably awa-..e of the fact that ir• 1962 it was by decision of the Supreme Court that children could no longer pray in our public schools. As far as I know, that's the first major institution in American life in a country where we've always honored religious freedom until the last few years -- that individuals are not permitted to pray. Have you ever asked yourself wha~ was really behind that group of atheists and secular humanists that wanted to kick prayer out of the public schools? What are they really after? It wasn't because anyone was going to be converted by the kind of prayers that were offered or that someone was going to impose their religious valu~s on them. Instead, those humanists and atheists didn't want our public school children to be suspicious that there was someone up there listening when they prayed. And that whole picture changed the entire picture of education. For example, ever since they have expelled prayer, they have for practical purposes expelled the Bible. Now, legally you £§D use the Bible as literature, but so many teachers have been intimidated, they almost never use the Bible in the classroom. TIM LAHAYE
"G.:•vet~r-.rJ1erJt it se 1 f is an i r1st it uti O:•l'"J o;:.f God ••• but t ho:•se t hi rtgs have changed in recent years, and it seems we have people in government that no longer have the value system of the Bible. Instead, they have a new standard that every generation sets its own standards and now government is no longer the protector of the family. Now government wants to come in and make the decision for the family. And this is also true in relationship to the education system. Personally, I' concerned that values be returned to the public schools. When I say values, I'm talking about moral values ..• You cannot have freedom, justice and liberty without morality and that morality has to be based on something greater than mankind. Traditionally, it has always been based on the Word of God ..• There is someone up there telling you and me what is right and wrong ..• And it usually starts with your decision about what are you going to do with His son, Jesus Cht~ist." TIM LAHAYE
SECULAR HUMANISM . ''In many of our big cities there are so many drug pushers, there are so many child molesters and perverts walking the streets that it is no longer a safe haven for children. Let's face it folks, our culture has changed. Now who changed it? Well, it wasn't we n1i ni stet~s. It wasn't Sunday scho:u:•l teacher~s. It wasn't Christians. It wasn't dedicated people committed to traditional moral values. It was the people that are committed to anti-moral values. And who are they? They~are the secular humanists of our culture .•• I believe that secular humanism is a religious ideology ... They admit it themselves in their manifesto. Eleven times. I counted. Eleven times they called their own ideology, secular humanism, a religion. The Supreme Court of the United States in 1963 in the Tercaso case acknowledged it like Buddhism as a religion. Well, my question is if the religion or the moral values of this Book is no longer welcome in our public schools then what business do:•es secular~ hun1arlism have irt o:o~.tr~ schoc•ls?" TIM LAHAYE
SECULAR HUMANISM: Cont'. lnUlng · on the s said, "M1y shou chool prayer . have the right ld 9 people [the ~sue I FalY.Jell /lm=rican ~1 to, tell 75 to BS% f rem: Court] schools tha~J:-' e, Yaur c.hildr o the the Presi~t ~ bui!t and Plle:; ~?t pray in out of the co way ~s the only • V\€11 I • a!Tendrrent urts ' hands. A wa:y to take it school to allc:w Voluntary constitutional Consti~ti And w-hen t.~t ~rayer in public new ·on.··· V\€11 't' ~ pan of the • i\€~ve :Sot the , ~ s golng to be . busy' they've been ACI1.J! you knew the 'a f~ght lately and will be rndihg a lot of there SCenes out of c . ty orever throwing Gcx::l out of _7 halls and try . ln3nger can bet Ptlbl~c life in. thi lng to "threw the your life the . s COUntry Y 're go · liberal cl • • • • You lng to be shouting ••• , er9YITEn, Oh 1
"I was in Washington when the vote was taken respecting prayer again in our public school system. I sat in the Senate gallery and I watched senator after senator vote. I watched scores of them say 'No!' ... The man that led the floor fight against prayer in the public schools stated: 'We have the Bible on one hand and the Constitution on _ __ _ 1 the other. I don't care about the Bible. I am for the Constitution.' -·------.o·=--=--=-=-LI want to serve notice on that Senator. One day when he stands before ______God it will not be the Consti":ution that will be open, it will be the -. _>-....,---·------.-:_- Bible ••• 11 _ ~~- • ------~--~~-- ~-----~--"-----"-"'"--'---" ~;:_:-~~_:.:_=-=.=.:-:-,;~~-~-o__-_:::;;:~---~--
-<'• ------~---;_-~-·~-- [r~r st=l ;-the ~te ~:~lery and watched 100 -:::r:-=e -~ 1· on the prayer arrendment and I watched it voted down. I'm concerned c 1 that the Senate is an institution damned by God. We've taken the ! · 10 Comnandments fran our school walls. We no longer need them. j We've separated church and state. No Mr. Legislator. No Mr. Suprerre Court. You haven't separated church and state - you've 1i ·~ 1 separated God and state. !' . . >
- --- .. ·-··------·- --····--- n:±ertson c:x:mrented about the school prayer arrendment and its possible infringerrent or: . rninority rights, "'Ihere has to be sare uru.fymg social ethic in any society..• we cannot accarrro- date a few minorities ••• " .. .·
---- ~.... - w ,. ,_.. , • . • - ,.,._ ;, .:;.....o.- - ...... ··- ·-· '- · ·· ·-····
~&rr-- - 7oo C)Mh •.- /0 I:1/ I? d-
------~ - -- -- Pe'ople For The mer1can
STAT.EMENI' OF
JOHN H. BUCllANAN, JR.
00 BEHALF OF
, PEDPLE FOR 'IHE .AMERICAN WAY
BEFORE THE SENATE JUDICIARY CXJ.1MITI'EE
CN PROPOSED SOiOOL PRAYER AMENil1ENI'S
June 27, 1983
Mr. Cha.irman and .lvErrbers of the Ccmn:i. ttee:
My narre is John Buchanan and I am here today on behalf of People
For the Arrerican Way, a nonprofit, nonpartisan, educational project
forrred in the fall of 1980 to protect and prarote Arrericans'
constitutional freedans, especially those contained in the First
Arrendrrent. I .am pleased to a~ today on behalf of PIDPLE FOR to
present oor views on the pi'OfOsed arnendrrents on school prayer.
1015 18th Street, N.W. • Suite 300 • W,ash., D.C. 20036 • Telephone 202-822-9450 A Project of Citizens for Constitutional Concerns, Inc. - ""·~ ... --·- .. ...___ .... ~-- ·-·---~-· .... --·-- ·---- ~· - _ ... ____ .. _ -·- ..:t·--...... __... ~· ··---~---. -- ···-- ..
-2-
We are opposed to this and any other atterrpt to arrend the First
.A.rrendrrent, but we welcane the opfOrtunity to participate in this
deba:~~· · ft is a sign of the health of this society t:J:-J;3.t once rrore we
are arguing over the neaning of the First .A.rrendment as it relates to
religion. British Ambassador Jarres Bryce observed al:x:mt Arrericans one
hundred years ago that Arrericans have no two identical opinions, only
a favorable one, on the principle of religious freedan, voluntary
religious life, and a distancing between church and state. Each ti.rre
Arrericans engage in this d'ebate, we are reminded of the rich diversity
of religious faiths in the United States and of our Founders' wisdan
in drafting the First Arrendrrent that has so well protected our rich
diversity.
HONever, it is sarewhat troubling that we are today talking. about
a..Tending the very constitutional amendment that allows rre to sit here
and petition my governrrent. The awesareness of t.arrp:=ring with any
part of the First .A.rrendrrent should give us all pause.
When we talk about arrending the Bill of Rights, it seems to rre
that a very heavy burden of proof should be required of those
advocating the change. The profOnents of the school prayer arrendrrents
have failed to make their case pr.imarily because they misstate what
the law is tcxlay and what their arrendments would do, if passed.
'!here rray be sare sociological principle that the higher the
errotional content of an issue, the greater the mmber of misrepresentations and misstaterrents about the issue. If there is not .. -3- ,. ·-•. such a principle~ then we should invent one for the school prayer
I debate. '!he misstaterrents are legion. I will discuss five. I
. ·· ... :...· -· (1) President Reagan says that the Suprerce Court "has
effectively re1'llJ'ied prayer fran our classrocms"-
BtJI' - it is only gove:rnrrent-prescril:::ed, institutionalized
f prayer that the court has proscribed.
( 2) 'rhe President has maintained that his arrendrrent will restore
the right to pray-
BUT - on this very day students can if they wish, pray
either singularly or in groups in public schools or other
public buildings without violating the Constitution, subject
only to a very few limitations:
0 religious exercises cannot interfere with the
school's other activities;
-,. 0 the prayer cannot be sponsored by, or appear to be
sponsored by, the governing bcrly; and
0 the prayer nn.l.St be truly voluntary.
{3) Prayer arrendrrent proponents claim that they want to restore
a widespread practice in public schools- ...... __. --·"--·- ----~·~·--- ..... ····------..:.:--··--:-·----"'-~------· ....
. . -4-
Bur - nost children in the West and Midwest never engaged I in prayer before the SUprerre Court 1 s decision in 1962. [See .. attached L.A. Tines article of 8/27 /82] I
( 4) Sare prayer advocates even go so far as to blarre the decline
in our schools on the SUprerre Court decisions of 1962 and
1963--
Bur - this cause and effect logic is best dealt with in
hunor. As Martin .Marty has reasoned:
'Why did everything go wrong when everything went wrong? I think that the divorce rate rose shortly after the invention of the Electronic Church. Check the coincidence of the dates. 'When born-again celebrities
started writing born-again autobiographies 1 teen-age pregnancies increased; and when fundarrentalists started . writing .seX :m:muals 1 the Vietnam War accelerated. Didn't you notice the cause-and-effect relation? ·:_- (5) Proponents claim the arrendrrent is needed because the Suprerre
Court has banned all religion fran public schools-
Bur - the only practices prohibited are mandatory religious
exercises. Not the study of religion or religious
materials. For exanple 1 students may and do study the Bible
for its ethical 1 literary 1 and historical qualities; they
can and do study canparative religion; they can and do
recite officially awroved anthe:ns with declarations of
faith in a Deity. 'it .. -5-
Neither the Bible nor ITOral instruction has been banned
fran the schools. Nor is there a ban on students rreeting •. . :voluntarily for religious reasons. In the recent 7-2
decision of Widrffir vs. Vincent, the Suprerre Court said that
religious activities are permissible on public school
property.
The ~&rent we all testified against last year and which was resul::rnitted this year as S.J. Res. 73 has been effectively dissected and discarqed. The latest version proposed by Senator Hatch should be vie.wed in one of two ways. Either it is basically the sarre as the
President's arren&rent, as sare who wanted to testify were told, and therefore is subject to the pitfalls outlined above, OR it is totally rreaningless. M=aningless because equal access is already to be found in the Constitution and pericds of silent rredi tation in public schools have never been found to be unconstitutional. -
What I find disturbing is the lack of appreciation of the genius of the founders in crafting the First Arren&rent, especially in light of the way it has 'WOrked for the past 200 years. let us recognize that the United States has avoided the secular strife of the Northern
Irelands, the Irans, the Indias and the Pakistans, thanks in large part to the tradition of the First Arren&rent. There were tirres in the not so distant past when the governrrent tracked datm. people who believed as I do as a Southern Baptist. It was not too long ago that
Baptist ministers were beaten, ilrprisoned and run out of town in the . . -6-
Colony of Virginia for preaching doctrine at variance with that of the
established church. Governrrent can be benevolent, but governrrent can
also be bigoted. Sane forces behind this arrendm::mt could take us back
to the day when one person's religion would be .irrp::>sed on another.
Too often recently have I heard schCX)l pr<3.yer proponents make
staterrents not unlike that of Deputy Attorney General Edward Schrnul ts:
"We rrn.1st teach minorities to respect the right of the rrajority." HCM
frightening that staterrent is and hew antithetical to our history.
And who k;na,.,s who will be in the rrajority or minority tarorr<:M.
I am also very concerned about what the passage of this arrendm::mt
might rrean for our schCX)ls - already so overburdened. With today's
problems, the last thing administrators, teachers, and students need
is to be thrust into sectarian strife. A rece..11t editorial in USA
Tbday (5/18/83) said it well:
It is a sharre for Arrericans to waste so rrn.1ch passion when so rrany nore irrp:::>rtant battles need to be fought. The real peril facing education has nothing to do with Bible teaching but, as a national ccmnission recently pointed out, rrediocrity in the SChCX)lS.
When schCX)ls becare a battleground for adult passions and prejudices, children are the inevitable casualties. It is their parents who need to learn one of the nore elarentary Bible lessons: love thy neighOOr.
Once again, I find myself in agreerrent with Jolm F. Kennedy. In
a news conference two days after the 1962 Suprerre Court decision on
prayer, President Kennedy said that the "easy rem=dy" for Arrericans . -. -- ·------~ --·-~--.::--:------
·~ . -7..,.
against the edi~ was to "pray a good deal nore at hare and attend our
churches with a good deal nore fidelity."
. -~ ..• :..:
Mr. Chainnan, the religious instruction of children is the responsibility of parents -and their churches. It is clearly neither
'the responsibility nor the constib.ltional right of governrrent or the public schools. Protecting the constitutional rights of Arrerican
f' citizens is the solemn responsibility of the courts and the Congress.
We at People For the Arrerican Way prayerfully hope that the
Congress will take no action to dilute the First Arrendrnent, so hard won by our Founders, so protective of our sacred rights and so nuch nore inportant to the welfare of our children and of their Chl_ldren 1 s children than governrrent-sponsored prayers in school could ever be to anyone 1 s child.
Mr. Chainnan, we urge that the Ccmn:i ttee- not report and the
Senate not pass S. J. Res. 73. • ~~liili'i'ili'M72?5WW=mr=r~,--, Yi!l!l ZE i s:m:r-- . . .. -· --·-· ~----··:·--·.....:--' --~""· --·..6-----··"'----··-··---~_._...... ______.,_ .. _____ .... -··- ...... _____ ~ .. --··- .
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r .. "' ·~\ \• ' EDUCATIOH HEEK OCTOBER 3, 1984 · EDl Questions and Answers op the Equal Access Act ------I
Slwrtly after the Congress passed A. A noncurriculum-related student dent groups can meet. It can enforce the E-qual Access Act on July 25, a group is a group or club that is inter order and discipline in the meetings. broad coalition of educational and ested in a subject matter not directly The key is that regulations must be legal groups, recognizing the poten related to the school curriculum. uniform and nondiscriminatory. tial for confusion among sclwol ad -The math club, the Spanish club, the ministrators caused by the new stat drama club, and the athletic teams Q. Can a school require a mini· ute, began discussions to try to would normally be curriculum-re mum number of students to form develop guidelines for its implemen lated. A religious club, a political a noncurriculum-related club? tation. club, or service club would be consid A. No. Care must be exercised not to Representative Don Bonker, ered noncurriculum-related. discriminate against numerically Democrat of Washington and the small. student groups that wish to main House sponsor of the legisla Q. Who determines which stu establish a club by setting a require r:.On,published the following near-fi dent groups are curriculum-re ment of a minimum number of stu nal version of the recommenda lated? dents to form a club. Sec. 802(d)(6). tioM--done in question and answer A. Local school authorities. Howev They key is to be flexible in dealing format---in the Sept. 24 Congression er, a school cannot defeat the intent . with small student groups and to ac al Record. of the Equal Access Act by some all commodate student groups that encompassing defulltion that arbi want to meet. For example, one Q. What is ·meant by "limited trarily results in all but one or a few teacher could monitor several small open for1lm'7 Sec. 8-02(a) and (b). student clubs being defined as cur student groups meeting in a large A A limited open forum is created riculum-related. room. when a secondary .scllool provides an opportunity during "noninstruc Q. When can noncurriculum-re Q. Should a school formulate a tional time" for students to organize lated student groups meet? written policy for the operation meetings to discuss subject matter A. A limited open forum requiring of a limited open fonun? not directly related to the school cur equal access may be established A. If a school desires to create a riculum and permits those meetings during "noninstructional time." Sec. limited open forum, or if such a for on school premises. The forum cre 802(b). The act defines "noninstruc um already exists, it is strongly rec ated is said to be "limited" because it tional time" as time set aside by the ommended that a uniform set ofreg is only the school's own students school before actual classroom in ulations be drawn up as soon as who can ta.~e advantage of the open struction begins or after actus, possible and be made available to forum. Outsiders are not granted classroom instruction ends. Sec. administrators, teachers, students, any affirmative right of access by 803( 4). It includes time before an in and parents. The importance of hav the Equal Access Act. dividual student's school day begins ing such a document becomes clear or after it ends even though other ly evident if the school either denies Q. Does a school have to provide a students may be receiving class a student group the opportunity to limited open fonun for students? room instruction at the time be meet or is forced to withdraw that A. No. The school or local policy cause of split-sessions or staggered opportunity. When the rules are making body has the exclusive au school schedules. known in advance, general accep thority to determine whether it will tance is easier to obtain. create or maintain a limited open Q. Can noncurriculum-related forum. If a school has a limited open student groups meet during the Q. What does "student-initiated" forum, it may not discriminate school day? mean? Sec. 802(c)(l). against a student group because of A. The act is silent on whether a A. "Student-initiated" is one of the the content of its speech. If a school limited open forum requiring equal key precepts of the act. It means the does not have a limited open forum, access may be established for stu students themselves are seeking the request of a single student group dent clubs during the instructional permission to meet and will direct to organize a meeting or a club that day. The constitutionality of equal and control the meeting. It means is not directly related to the school access for religious clubs during the that neither a teacher nor other em curriculum requires the school to de school day is currently being litigat ployee of the school nor the school termine whether it wants to create ed in the federal courts. itself is initiating the meeting. Fur such a forum. ther, nonschool persons may not di Q. May a school establish regula rect, control, or conduct student Q. Do meetings of curriculum-re tions for meetings that take place meeting. Sec. 802(2)(5). This does lated groups trigger implemen in a limited open forum? not mean that students are forbid tation of the Equal Access Act? A. Yes. The act does not take away a den to seek advice from nonschool A. No. Only allowing meetings of school's authority to establish time, persons. noncurriculum-related groups trig place, and manner regulations for ger implementation of the act. its limited open forum. Fbr example, Q. May teachers be present dur- it may establish a reasonable time ing student meetings? Q. What is meant by ''noncU.rri period on any one .scllool day, a com- A. Yes, but there are limitations. Fbr culum-! d.a~d stndent grottps"'t · bi-rmioll'tlfdayS"t11' till-school-days. It 1 i:mmance purposes or by local policy Sec. 802(b). · may assign the room in which stu-· ~ • • ' • · · · · • Corrtinued on P02e 1 V · EDUCATION WEEK 10/3/84 Continued from Page 11 1 the government, or its agents or Q. Do school authorities retain cannot be denied equal access be Q. What about situations not ad· employees"? Sec. 802(c)(2). disciplinary control? cause its ideas are unpopular. Free- . . dressed in this exploration? ~ i or state law, teachers'are commonly A. Neither the school, the govern A. Yes. The act emphasizes the "au dom of speech includes ideas the ma A. The groups below are availa!.:te required to be present during stu ment, or its agents or employees thority of the school, its agents, or jority may find repugnant. A "time, for advice: · dent meetings. However, the act may promote, lead, or participate in employees to maintain order and place, and manner" regulation stat American Association of School !)ermits teachers only a custodial a noncurriculum-related student discipline on school premises, to pro ing that all group meetings during Administrators, 1801 N. Moore, Ar role (acting in an emergency or to meeting. Sec. 803(2). The assign tect the well-being of students and the limited open forum must be open lington, Va. 22209; (703) 528-0700, preserve order). In order to avoid ment of a teacher or other employee faculty, and to assure that atten to all students without regard to Bruce Hunter. any taint of state sponsorship of reli to a meeting for custodial purposes dance of students at meetings is vol race, religion, or national origin American Civil Liberties Union, gion, teachers or employees are to be· (that is, in a non participatory capac untary." Sec. 802(0. l By John Buchanan It isn't easy to make silence controversial, but that's just what backers of a so-called "silent prayer amendrrent" to the U.S. Constitution have done. Their proposal, likely to cane to the Senate floor in early April, is both dangerous and unnecessary. The constitutional amendment, which has already passed by a 12-6 vote in the Senate Judiciary Ccmn.ittee because it appears so hannless, says: "Nothing in this Constitution shall be construed to prohibit in dividual or group silent prayer or reflection in public schools. Neither the United States nor any State shall require any person to participate in such prayer or reflection, nor shall they encourage any particular form of silent prayer or reflection." Introduced by Senators Orrin Hatch (R-Utah) and Dennis DeConcini (D-Ariz.), the "silent prayer amendment" is a serious threat to the tradi tional American value of separation of church and state. It goes far beyond merely providing a neutral zocrnent of silence in which the right of students who wishes to pray silently is protected. Let's take a look at the "manent of silence" as envisioned by support ers of the amendment. They aren't calling for a m:rnent of silence, in which students may or many not pray. They want a silent devotional service. The camri.ttee report on the amendment says state and local authorities would have the discretion to "structure a devotional exercise consistent with this amendment." A "devotional exercise" in the public schools is very different fran a neutral m::ment of silence. Adopting an amendment that -2- provides for prayers that are non-vocal does little to guarantee that they will be voluntary and nonintrusive. The -proi:Josed amendment would not prevent students fran distributing prayer cards or other religious materials during the "devotional exercise"; nor would it limit either the number or duration of "devotional exercises" to be scheduled during the school day. The ccmnittee report says that "rninority-religion students" would be allCMed to leave the classroan during the rranent of silence. If a "m::xrent of silence" is truly neutral, why is there a need for any student to feel uncanfortable? l~alter Dellinger, Professor of Law at Duke University, points out another problan with the amendment. It would, he argues, for the first time in American history, invite the federal government to require school districts receiving federal funds to provide a certain type of silent prayer. The ccmnittee report describes as "trivial" the right of every student to pray at will in school. Yet when state or local authorities are allowed to "structure a devotional exercise," the same silent prayer becanes meaningful. Apparently, to proponents of the amendment, government sponsor ship is the difference between a silent prayer to God that is trivial and one that is significant. The amendment not only poses a very real danger to First Amendment rights. It is unnecessary if the overall purpose is to protect mo ment-of-silence laws. While the 1985 SUprerre Court decision in Wallace v. Jaffree did overturn an Alabama law giving a preferred status to prayer during a :rranent of silence in public schools, it did not overturn :rranent of silence laws in 25 states, including a neutral rranent-of-silence law in -3- Alabama. In the Jaffree decision, the Suprerre Court ruled a 1981 law - which added "or voluntary prayer" to a rranent of silence law - was uncon stitutional because it added no legal protections against abuse, and merely created the impression that prayer was an option favored by the state. The crucial distinction in the case was drawn by President Reagan's ap];X)intee, Justice Sandra Day O'Connor, who said: "Nothing in the United States Constitution as interpreted by this Court or in the laws of the State of Alabama prohibits public school students fran voluntarily praying at any time before, during, , or after the school day • • • If a legislature expresses a plausible secular purpose for a rranent of silence statute in either the text or the legislative history, or if the statute disclaims an intent to encourage prayer over alternatives during a rranent of silence, then courts should generally defer to the stated intent." Sup];X)rters of governrnent-s];X)nsored "devotional exercises" claim that the public schools do not allar.·J roan for religion. Public schools, of course, are not churches, and their resf.Onsibilities should not be confused. But, in fact, there are more than adequate opportunities in place nCM for public schools to both accamodate students' religious beliefs and to acknc:Mledge the role of religion in society: ** The school day may open with a m:ment of silence for meditation, prayer or reflection. ** Students may pray aloud at any time during the school day when unsupervised conversation is allowed, such as during lunch period or in between classes. ** Under the 1984 Equal Access Act, student-led religious clubs may meet on school grounds on the sarre basis as other non-curricular clubs such as the chess or bridge clubs. -4- ** Students may learn about the role religion has played in world and Anerican history, study cetrp3Tative religion or study the literary and historj.cal_ elanents of the Bible. The "silent prayer amendment" would add nothing positive to the already existing right of students to pray in school. It would instead create a divisive government-sponsored prayer which would be "non-vocal," but by no means "silent." The true significance of the proposed amendment, as stated in a ranarkable -- and little-noticed -- passage in the Senate Judiciary's CMn carrnittee report, would be the "dismantling of the unbridgeable 'wall of separation"' between church and state. Yet is is only by maintaining that wall of separation that this country has care to be the most religious -- and the most free -- of nations. John Buchanan is Chainnan of People For the Anerican Way, a 200, 000-member citizens organization protecting constitutional liberties. An ordained Southern Baptist minister, Buchanan is a forrrer eight-tenn Republican Congressman from Alabama. - .__.,. ~-, . c'' ,,. c- Ii) ~c~ ~~ hcr! Court AcceptS Appeal L---t. ~~~ ..... 1 '\~ Of 'L~forizent ofSilence' Law ·.: ~: \1' ;·;' . -:;_- By STUART T,AYLOR Jr. • ~.·~~ ·• ~ ~~ • ~.~t · \ Specla1 to The New York Time~ : ,'WASHINGTON, Jan. 27- Returning prayer and found the statute Invalid, to the contentious Issue of .school saying Its "sole purpose" was to foster prayer, the Supreme Court agreed to- prayer. day to.conslder the constitutionality of But a majority of the Court's mern a 1982 New Jersey law requiring that bers also suggested strongly that they public !lchools permit students to ob- would uphold "moment of silence" serv~ Ol}e minute of silence dally "for Jaws If the evidence showed they quiet e.nd private contemplation and in- served a secular purpose. A decision to ·.t["}spectlon." uphold the New Jersey law could thus Whll~ the New Jersey law was have widespread Impact. · blodted by Federal courts soon after 'Its enactment, today's action could set Question of Jurisdiction the stage for a major test of such "mo- Today's brief order indicated, how- ,ment of silence" laws, which have been ever, that there was some question Fdopted at m;~ time or another In about whether the Court had jurisdiction to :.2;5 statr:s, irv.::ludlng New York and Con-· decide the Jaw's constitt~tioriality. 1'1-e n~c.U:::ut. • state Itself did not appeal, and oppo- ·n1e Court R~ld It would hear an ap- nents of the law have argued that the peal by two state legislators of a Fed- Court lacks jurisdiction because the era! appeals court decision that struck two legislators who sought review of down the New Jersey law as an uncon- the appellate ruling Jacked legal stand- stltutlonal establishment of religion. lng to do so. The Court deferred consideration of .,, , The appeals ~urt held, 2 to 1, that the jurisdictional Issue until the oral tl1e l"."" hRd ~'~· th .• nly dlr.gulsed purpose •arguments In the case this fall. t>f f~·.t.:l.lltati!l:;: prayer, even though the ' . 1 lz.c.'l (!o:;os m-t mention prayer or ex- The Um~ed State~ Court ?f Appea.s The New York Time./ Paul, · piid:ly suggest that students should for the Thtrd Circmt ruled m the Neu1 WASHINGTON STIU~· DIGGING OUT: A worker the city's transit authority after snowstorms para I) use the silent period to pray. ,Jersey c~~:se .that for a state "to direct using a snowblower w clear a path In front of the , the subway system and left thomtands of Federal woa . school prmctpals and teachers to per- United States Supren:\~ Court Building. The Fed(!ral ers ~>tranded. A total of 26 Inches of snow covered th ' LlrrJUi Remain Unclear • · 'mit pupils desiring to do so to observe a Government has oHe;n!d to buy de-Icing equipment for capital In storm~ on Thursday, Sunday and Monda3 ' T:ve Supreme Court, which ·has moment of sile.nce"'violated the pr!nci . b<~;::r::;d or?,'lm!zed prayer In public pie of separatton of church and state ~r.h('~'.s ;;J:l:_s IFG2, has never suggested when the reason was to accommodate ti·c ;t.:,.;~.~ ...... ;...... ~ ... ~- The appeals court applied a three-part test . By Theo Stamos to lHE WASHINGTON TIMES created by the Supreme Court analyze : whether a statute challenged under the estab- 1· The Supreme Court stepped back into the lishment clause passes constitutional muster. : · controversial issue of prayer in public schools That test requires that the law in question . yesterday, agreeing to examine aNew Jersey have a secular purpose, that it neither pro- · law that allows a daily moment of silence for mote nor advance religion and that it not fos- j public school students. · ter excessive govermental entanglement with ' The justices, who postponed a decision on religion. • . · · · . a procedural" matter in the case, will study The New Jersey legislature appealed the whether the -J.aw v.iolates the First decision to the Supreme Court, but when the Amendment's establishment clause, which leadership changed in both the state Senate bars the establishment of religion by govern and General Assembly, the appeal was with ment. drawn. TWo legislators, the former leaders of , The New Jersey law, which was passed in the state Senate and of the General Assembly, . December 1982 over a veto by Gov. Thomas have pressed the appeal ·in the Supreme Kean, requires public school teachers to allow Court. students to observe one minute of silence be The justices yesterday also handed down fore the start of each school day "for private three opinions dealing with criminal proce and quiet contemplation or introspection." dure. A group of parents, students and teachers In the first case, the justices ruled 7-2 that challenged the constitutionality of the statute the Fifth Amendment's protection against in federal court, which ruled in October 1983 ·self-incrimination embraced in the so-called that the law was unconstitutional. Miranda ruling does not require law en TWo years later, a panel of the 3rd U.S. Cir forcement officials to inform suspects of all cuit Court of Appeals agreed with the lower possible crimes for which they may be under court that the statute - despite the fact that suspicion. . the word "prayer" was never mentioned - The case involved John Leroy Spring, who was arrested in March 1979 in Kansas City, Mo., for transporting stolen firearms across A panel of tlre 3rd U.S. state lines. Federal agents arrested Spring on a tip from an informant who also told Circuit Court of Appeals authorities that Spring was involved with the agreed that the statute murder of a man during a hunting trip in Colorado a month earlier. · amounted to a thinly veiled In an opinion for the majority, Justice Lewis Powell said, "This court has never held effort to put prayer back in that mere silence by law enforcement offi ______-£ ______cials as to the subject matter of an interroga public school classrooms. tion is trickery sufficient to invalidate a sus pect's waiver of Miranda rights." amounted to a thinly :eiled effort to put prayer The Colorado Supreme Court, which had back in public school classrooms. overturned Spring's murder conviction, had The Supreme Court in a historic ruling in ruled that police violated Spring's Miranda 1962 outlawed organized prayer in public rights because they did not inform Spring at schools as an impermissible encroachment the time of his March 1979 firearms arrest on the constitutionally required separation that he was also under suspicion for the Colo between church and state. rado murder. Since then, numerous efforts to rein Justice Thurgood Marshall wrote a dis troduce prayer into the classroom have been senting opinion in which Justice William mounted in various states ·and in Congress. Brennan joined. The majority's decision rein President Reagan, along with the fundamen stated the murder conviction. talist Christian movement and others, has re In another 7-2 decision dealing with the newed calls for a constitutional amendment Miranda warning, the justices said the aimed at overturning the 1962 ruling. Miranda rule does not prevent police from TWo years ago, the justices voted 6-3-to reaf questioning suspects who agree to make an .firm that decision by striking down an Ala oral statement without the presence of a law bama law authorizing a daily one-minute pe yer but request an attorney's presence before riod of silence for "meditation or voluntary signing a written statement.· prayer." Chief Justice William Rehnquist wrote for Justice John Paul Stevens, writing for the the majority that New Haven, Conn., police majority in that case, said the law unconstitu did not violate the Fifth Amendment rights of · tionally endorsed religion as a "favored prac William Barrett, who asked for an attorney tice." before giving a writ):en statement but said he · . Still, the justices suggested that another had "no problem" talking to police about his moment-of-silence statute that did not men involvement in a sexual assault. tion "prayer" would not necessarily run afoul The justices reversed a Connecticut Su of the First Amendment. preme Court decision and reinstated Bar In striking down the New Jersey law, the rett's conviction for sexual assault and drug court of appeals said, "The Supreme Court related charges stemming from a 1980 attack has expressly required a secular purpose on a former high school classmate. when considering a constitutional-challenge · · In a third decision, the justices ruled 5-4 under the establishment clause and because that trial judges are free to instruct jurors not the district court made a finding that the to be swayed by "sympathy" or "sentiment" [New Jersey statute] lacks such a secular pur or other emotional· factors in determining _pose, we hold the [statute] to be unconstitu whether or not to impose the death penalty on tional." ~ a convicted killer. ~· ~ . . . Court rejected state-sponsored prayers and Bible readings in pub Justices to Rule on, School lic schools. In 1984, the court threw out an Alabama law calling for a daily period set aside for "volun- 'Moment of Silence' Law . tary prayer and meditation," but several justices said that they. By DAVID G. SAVAGE, Times Staff Writer would look favorably on a "straightforward" and non-reli WASHINGTON-The Supreme over the governor's veto, said that gious state law calling for a daily Court said Tuesday that it will school districts "shall permit stu moment of silence. decide whether a state law calling dents to observe a one-minute Meanwhile, the child custody for a daily "moment of silence" in period of silence to be used solely at case pits two parents, two conflict" the public schools violates the the discretion of the individual . ing state court rulings, a federal Constitution's ban on promoting student, before the opening exer law-and one child. Congress en religion. cises of each school day for quiet acted the Parental Kidnaping Pre The New J2rsey.law does not and private contemplation or intro vention Act in 1980 to halt the mention "prayer." However, two spection." growing number of cases in which lower courts threw it out on The next year, several parents one parent has kidnaped his child grounds that its purpose appeared and students, backed by the Amer and won a custody order in a to be religious. ican Civil Liberties Union, sued in second state. The law said that the The high court must now decide federal court and obtained an order courts in the first state would have if a law, although neutral in its striking down the law. The judge jurisdiction and said federal courts language, is irrevocably tainted if said that the statute "had a reli could assure this result. legislators who supported it did so gious and not a secular purpose." David A. Thompson, a Flintridge because of religious motives. An appeals court in Philadelphia neurosurgeon, charges that his Meanwhile, the justices agreed upheld that ruling. In the interim, ex-wife, Susan, who had been also to try to bring some order to new le:lders took over the New allowed by a California court to the messy business of parental Jersey L...:gislaLure and decided to take their son, Matthew, out of the custody fights that involve cross abandon the appeal. However. at state, then won sole custody of the state kidnapings. In agreeing to torneys representing Alan Karch boy in a Louisiana court. A Califor hear an appeal of a Los Angeles er, the former Assembly Speaker, nia court later granted custody to County man, the justices said that appealed to the Supreme Court. Thompson. they would decide whether parents In a brief order Tuesday, the However, when he sought to may go to federal court to clear up justices said that they will first appeal the issue to federal court, disputes among state courts over decide whether Karcher has the the U.S. 9th Circuit Court of Ap who has legal custody of a child. legal standing to continue this peals said last year that he had no The New Jersey case comes appeal. If so, they will then decide right under the 1980 law to sidestep before the court with a possible whether the law is constitutional the state courts. The justices said in procedural flaw that could abort a (Karcher vs. May, 85-1551). a brief order Tuesday that they decision. The 1982 statute, enacted In 1962 and 1963, the Supreme would review this ruling . !J,• 5, &\'. High court will reVieW moment-of-silence case waahlngtor1 The Supreme Court agreed Wednesday to study the validity of a New Jersey law providing daily moments of silence for public school students. If the court finds it has the proper jurisdiction, it will decide whether the law violates the constitutionally required separation of church and state. The New Jersey law tells school officials to let students use the silent moments "for quiet and private contemplation or intro spection." Two lower courts said the New Jersey law represents an unconstitutional, bs,cl"{door at:t.ernpt to return organ ized prayer sessiofl..s to public sc.bco!z. In 1985, the Supreme court strongly reaffirmed its 1962 ban on organized prayer in public schools by outlawing daily moments of silence if students are en couraged to pray during that time. In that ruling, the court voted 6-3 to strike down an Alabama law that allowed such periods for "meditation or voluntary prayer." But the justices did not say in the Alabama case that all moment-of-silence laws are invalid. They did indicate · t'h~"J.t: if ? \3·.;;7 dc::J :not mention "pn:yer" - and if state le::¢3l:atots aid no~ h'1t:end. the ia?¥ to endorse or promote school prayer - it is valid. Numerous political candidates in 1984, including President Reagan, called for a return of organized prayer in public schools. The Reapn administration told the justiCes deciding the 1985 case that moment-of-silence laws like Ala bama's "enhance the opportunity for students to include silent prayers as part of their activities at schooL" '-. \- wa>NESf:?AY, JANU¥.\f .2B•W87 .I POST Court to Revie~ State RCquireillent ·i ! ' . . . in For''MQment.. . - . .ofSilence' . -. SchOOls By AI Kamen In one Miranda-related case de- questioning a suspect. The ques- washington Post Stall Writer . cided yesterday, Connecticut f1. tion, which has divided several fed- Barrett, the court clarified what po- era! and state courts for nearly- 20 . · The Supreme Court agreed yes- lice must do when a suspect makes years, occurs when police arrest terday to review the constitution- ality of a New Jersey law requiring on 1Y a vague request for a lawyer. . ·::·someone on one :-charge but also a daily "moment of silence" in all · The justices in 1981 ruled that ':question· the suspect about involve- elementary . and ... second'ary when a_ suspect.asks for. a lawyer, _ment in other matters. · . -_.schools...:..entering once -1llore the all questioning ·must cease. But .·The issue came up in 1979 when deoate· over·: religion in public when Wallingford, Conn., police Colorado officers questioned John . schools. · · .. questioned William Barrett about an ' Spring, in jail on flrearms charges, The justices said they would hear alleged sexual,assault, Barrett said about a murder. Spring, thinking he arguments next term over whether he was willing to talk with them, was being asked about the firearms the First Amendment's required but would not make a written state- charges, waived his Miranda rights. separation of church and state al- ment without a lawyer present. An The Colorado Supreme Court said lows for the 1982 law, which man- officer ·read Barrett his Miranda his statements could not be used dates the one-minute silence at the rights three times and Barrett gave against him because he should have . beginning of each school day. · his version of events. been told that police were going to . In other.· action yesterday, the . A judge ruled that Barrett's com- ask about the murder.' . :,,stices issued two decisions nar- ments could be ·used against him; Ju~ti~e L~wis F. Powell Jr., joi11:ed .wing the protections of the 1966 Barrett was convicted and sen- by SIX JUStices, reversed the state Miranda ruling, which requires po- tenced to nine to 18 years in prison. court, s~y~g th:re was ~no ~oubt lice to tell suspects of their right to The Connecticut Supreme Court that Spnng_ s walVer of _hts [~ghts] remain silent and to have the advice 'reversed, saying Barrett's refusal ~as !nowmgly and Intelligently of a lawyer. to give a· written statemerlt without made. . . Both . decisions indicated the a lawyer present in effect meant he _ ~he Constl~ut_IOn does not re court's willingness to continue fine- was asking for a lawyer and that po- qutre that ~ cnmmal suspect know tuning that decision, a p~ocess that. lice should have stopped the inter- ev:ry posst_ble_ consequence _of a has been going on for years. But rogation. watver" of ht~ ~tghts, Powell satd .. neither decision showed any incli- Chief Justice William H. Rehn- Marshall,. JOined by Brennan, ~Is- nation by the justices to tinker with quist, joined by five justices, re- sented, saym_g t?e st~te had f~tled Miranda itself. versed the state court. "To con- to prove Spr~g s wa~ver ~s ~ol- The New Jersey school case, elude that [Barrett] invoked his unta:r, knowmg, a_nd mtelli~ent, as Karchei- v. May, returns the court right to counsel for all purposes," reqUired ~y the l':'lrranda ruling. to a recurring battle over religious Rehnquist said, would be a "broad · In a thrrd ruling yesterda?', t~e exercises in public schools. . · . . court approved 5 to 4 a Califorma The court in 1985 struck down 6 mterpreta~IOn d ~f ~n ambtguous judge's instruction to a jury that it to 3 an Alabama Jaw requiring a st~~ement an . ,! dt;rehgardBof the ~, not be "swayed" by sympathy and moment of silence for "meditation ~~i~nary meanm6 0 w at arrett . other emotional factors in deciding · . or prayer," saying that law was · . - · . . whether to sentence a convicted passed as a means of circumventing Justice ~ilham J. Brennan lr· killer to death ·or to life in prison. i the 1962 decision banning organ- . concurred m the resu_lt, but for dtf- The case was California v. Brown.· · ized prayer in public schools. fere~~ reaso~s. ~e satd Barrett had In other action yesterday, the But a majority of the justices in . testified at _hts t?al that ~e fully un- _justices: - that case .. indicated 'in _!)eparate derstood hts Mt~anda nghts when • Agreed to decide next term in statements that they might uphold a -be ta~ked to _pohce_, a?d therefore· Thompson v. Thompson whether I law that did not mention prayer or knowt~gly watved hts nghts. . -. parents embroiled in child custody that was not intended to promote Justtc~ John Paul Stevens, JOm~d ··battles may use federal courts to ·eJigion. A decision on the issue is b~ Justtce_ Thurgood Marshall. m resolve conflicting state court rul- cxpected next term if certain pro- dtssent, satd the court was wastmg ings. . ce~ural problems do not block a it~ time r~viewi~g cases, such as • Said they would review an 'appeal ruhng. thts one, m whtch the facts are by the Church of Scientology of a The New Jersey law, which was unique and there are no general is- lower court ruling ·that made it easi struck down by lower courts before sues at stake. er for the Internal Revenue Service it was to take effect, requires a The second Miranda-related to withhold information under the "one-minute period of silence to be case, Colorado iJ. · Spring, , asked Freedom of Information Act. The ?se_d. solely at the discretion of the whether police must specify what case, Church of Scientology 11. IRS, mdlVldual student." crime they are investigating before is expected to be argued next fall. I FOR RELEASE: Thursday, 1Ebe ®allup l9oll September 8, 1983 Since 1935 8 ln 10 Favor Amendment Permitting Voluntary Group Prayer In Schools By George Gallup PRINCETON, N.J. - An overwhelming m~ority of Here are the national fmdings: Americans favor a Constitutional Amendment that would pennit voluntary group prayer in public schools. Voluntary School Prayer Among the 8 in 10 who have followed the pros and (Based on aware group) cons of the debate over prayer in public schools, 81% say Favor- Total 81% they favor the proposed Amendment while 14% oppose it Very strongly 48% and 5% are undecided. Fairly strongly 29 Public support for such an Amendment has remained Not at all strongly 4 firm over the 15 months since President Reagan first Oppose - Total proposed it A May 1982 survey showed 78% of the 14 Not at all strongly 2 aware group (also 82% in that survey) in favor of the Fairly strongly Reagan proposal, 16% opposed and 6% with no opinion. s Very strongly 7 Many Express Strong Support No opinion s Nearly half of the aware group ( 48%) say they --100% - ---~-- strongly favor the proposed Amendment, while 33% express mild support. On the disapproval side, 7% say Here are the results by key population ifOUPS: they strongly oppose the Amendment, while 7% express mild opposition. Voluntary School Prayer (Based on aware group) The Reagan Proposal Favor Oppose No opinion The President's proposed Amendment states: % % % Nothing in this Constitution shall be construed to NATIONAl, 81 14 s prohibit individual or group prayer in public schools or Men 79 16 s other public institutions. No person shall be required by Women 83 12 s the United States or by any state to participate in prayer. Whites 79 15 6 Non-whites Organized group prayer in public schools effectively 91 7 2 came to an end in 1962 after the Supreme Court ruled it 18-29 years 77 18 s violated the First Amendment. 30-49 years 79 IS 6 All persons in the current survey were first asked this SO & older 85 10 s question: College education 72 21 7 Have you heard or read about a proposed Amend High school 84 11 s ment to the U.S. Constitution that would allow voluntary Grade school 94 s 1 prayer in the public schools? Catholics 84 10 6 Protestants 84 11 s Eight in 10 (82%) replied in the affirmative. This Baptists 91 6 3 "aware" group was then asked: Methodists 82 11 7 Do you favor or oppose this proposed Amendment? Republicans 85 10 s How strongly do you favor (oppose) this proposed Democrats 81 14 s Amendment- very strongly,fairly strongly, or not at all Independents 77 16 7 strongly? East 81 16 6 Midwest 85 10 s South 86 9 s West 67 2S 8 Home Is Seen As Key Training Ground Although the public overwhelmingly favors permit ting voluntary prayer in schools, the prevailing opinion ~- among all groups and faiths is that the home is more 'l important than either the church or schools in the religious training of children. Currently 80% say the home is most important in the religious and spiritual development of a child while 15% name the church and only 2%, the schools. Which one ofthe following do yc>u think is the most important in the religious and spiritual development ofa child - the home, schoo~ or the Church? Home .•...•...•...•.•••.•....••..•••••.•••. 8096 Church ....•.....•.•..••....•..•...•...... •. 15 School . . . • . . . . . • • . . . • . . • . . • • . • . • • • . • • ...... 2 No opinion ...•..•.•.•...... •.•••...... ~ 100% The results reported today are based on in-person interviews with 1,567 adults, 18 and older, conducted in more than 300 scientifically-selected locations across the nation during the period July 22-25. For results based on a sample of this size, one can say with 95% confidence that the error attributable to sam pling and other random effects could be 3 percentage points in either direction. II Calendar No. 641 98TH CONGRESS 2D SESSION J RES 212 s• • • [Report No. 98-347] Proposing an amendment to the Constitution of the United States relating to voluntary silent prayer or meditation. IN THE SENATE OF THE UNITED STATES JANUARY 24 (legislative day, JANuARY 23), 1984 Mr. THURMOND (for himself, Mr. HATCH, and Mr. GRASSLEY) introduced the fol lowing joint resolution; which was read tw'ice and referred to the Committee on the Judiciary JANUARY 24 (legislative day, JANUARY 23), 1984 Reported by Mr. THURMOND, w'ithout amendment and without recommendation JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to voluntary silent prayer or meditation. 1 Resolved by the Senate and House of Representatives 2 of the United States of America in Congress assembled 3 (two-th,irds of each House concurring therein), That the fol- 4 lowing article is hereby proposed as an amendment to the 5 Constitution of the United States, which shall be valid to all 6 intents and purposes as part of the Constitution if ratified by 2 1 the legislatures of three-fourths of the several States within 2 seven years from the date of its submission to the States by 3 the Congress: 4 "ARTICLE - 5 "SECTION 1. Nothing in this Constitution shall be con- 6 strued to prohibit individual or group silent prayer or medita- 7 tion in public schools. Neither the United States nor any 8 State shall require any person to participate in such prayer or 9 meditation, nor shall they encourage any particular form of 10 prayer or meditation. 11 "SECTION 2. Nothing in this Constitution shall be con- 12 strued to prohibit equal access to the use of public school 13 facilities by all voluntary student groups.". SJ 212 RS . Calendar No. 641 98TH CONGRESS 2D SESSION se Je RES • 212 [Report No. 98-347] JOINT RESOLUTION Proposing an amendment to the Constitution of the United States relating to voluntary silent prayer or meditation. JANUARY 24 (legislative day, JANUARY 23), 1984 Reported without amendment and without recommendation ·l' .• ' . . . Opinions .and i;rscho6l: &~~~- : '.1. Di~sent~· ~·.· _____.._____ I c . li . ! ! . · · · ...... Special to Tbe New York Ti"!'ll -right to select any-rengiouslaiffior none at all. This conclusion derives ,•· ;' WASHINGTON, June 4- Following are excerpts from the Supreme , . support not only from the interest in Court's decision today invalidating Alabama's moment-of-silence law. Associ-.. . respecting the individual's freedom fl._ , ate. Justice John Paul Stevens wrote the opinion. Associate Justice Lewis F .. . of conscience, but also from the con 1PraY.er CaS~) -~ ! ' '· .--~--- ·-!-!--~-.~-· -·. . . ' . ' ~ ((D . ' Powell Jr. joined the opinion and filed a concurring opinion. Associate Justice i viction that religious beliefs worthy of respect are the product of free and \ Sponsor Gives Purpose. · Sandra Day O'Connor did not sign the opinion, filing a concurring opinion. Dis , · The sponsor of the bill, Senator . sents wer:-e filed by Chief Justice Warren E. Burger and by Associate Justices · 1 voluntary choice by the faithful, and . 1 Donald Holmes, inserted· into the H. . · · 1 from recognition of the fact that the Byro~ ,R. ~te and W~lliam Rehnq~st. ·. political interest in forestalling intol- legislative record, apparently with- .•,.'' 1 .erance extends beyond intolerance 1 out dissent, a statement indicating ~~L.; .. ·, .. 1 among Christian sects, or even intot-· that the legislatio:t was an "effort to \!_:·. ~.:. r:·· .. · .From the. Opinion erance among "religions," to en com- return volWitary prayer~· to the pub I. pass intolerance of the disbeliever lic schools. The state did not present .;·· . ByJusticeStevens .. 1 andtheWicertain.AsJusticeJackson · evidence of any secular purpose. · . " , .,.. ., . , . . . . . , · eloquently stated in Board of Educa- There are only three textual differ •· ences between Sec. 16-1~20.1 and Sec .. . · ; · · · . · · · __.,.'prayer '' is~a law resP,ecting tlleeS= tion v. Barnette, (1943): · 1 . At an early stage, the constitution- • . tablistUnent of religion within .the "If there is any fixed star in our 16-1-20: (1) the earlier statute applies . ' alit)' of three Alabama statutes was ·meaning of the First Amendment. . constitu!ional.constellation, it is that only to grades one ,through six, . ·. questioned: (1) Sec. 16-1-20, enacted Appellee Ishmael Jaffree is a resi- no official, high or petty, can pre- whereas Sec. 16-1-20.1 applies to all · in 1978, which authorized a one- dent of Mobile-CoWity Alabama. On scribe what shall be orthodox in poli- grades; (2) the earlier statute uses .. JDinute period of silence in all public . May 28 1982 he filed ~ complaint on tics, nationalism, religion or other 1 the word. "shall" whereas Sec. 16- . schools "for meditation"; (2) Sec. 16- '· 'behalf ~f thr~ of his minor children. matters of opinion or force citizens to. 1-20.1 uses the word "may"; (3) the ... ··1-20.1, ena~ted in .1981; which au~or- , . The complaint alleged that the ap~l- conf~s ,?Y word or. act their faith earlier statute refers only to '.'medita · ized a penod of sllence ~·for medxta- ·· , lees brought the action "seeking pnn- therem. tion" wh~reas Sec.• 16-1-20.1 refers to ' · tion or volWitary prayer" and (3) Sec, · · . cipally a declaratory judgment and The State of Alabama, no less than 16-1-20.2, enacted in 1982, which au- . an injWiction restraining the defend- the Congress, of the United States, -·-- .. -~~·· .. ~ thorized teachers to lead "willing stu- . , ants from maintaining· or allowing , must respect that basic truth. .·"meditation or volWitary· prayer." . de.nts" in a prescribed prayer to "AI· ., ~·the maintenance of regular religio~ :. When the Court has been called The first difference is of no rele- · mighty God the Creator and S1Jpreme · - upon to construe the breadth of the vance in this litigation. The second · •Judge•of world." ·-- --Establishment Clause it has exam would also have no impact. The only:· ·· At the preliminary injWiction stage - prayer services or oth~r forms of n:u- U · ' • significant textual difference is the of this case, the District Court distin- gious observances m th~ Mobile . . . addition of "or volWltary prayer." :. guished sec. 16-1-20 from the other . CoWity Public Schools in viOlation of. m~ the cntena developed over a Appellants have not identified any : · . two statutes. It then held that there, the First Amendment as made appli- penod of many years. Thus, ·in secular purpose that was not fully . · was "nothing wrong" with Sec. 16- cable to states by the 14th .Amend- Lemon v. Kurtzman; (1971), we serVed by Sec. 16-1-20 before the '1-20, but that Sec. 16-1-20.1 and 16- · ment." . ' wrote: enactment of Sec. 16-1-20.1. Thus, ·1-20.2 were both invalid because the . j Just as the ~ght to speak ~d the "First, the statute· must have a only two conclusions' are consistent sole purpose of both was "an effort on · . right to refram from speakmg are . secular legislative purpose; second, with the text of Sec .. 16-l-20.1: (1) the the part of the State of Alabama to en- complementary · co~po!l":nts of a . its principal or primary effect must statute was enacted to convey a mes ·.. ~courage a religious activity." After broader concept of mdiV1d~~ .fr~ be one that neither advances nor in- sage of state endorsement and the trial on the merits, the District. . dom of mind, so also ~e indiVI=l is hibits religion; finally, the statute promotion of prayer; or (2) the stat-; Court did not chflnge its interpreta- · · freedom to choose !Us. own cr s must not foster 'an excessive govern- ute was enacted for no purpose. No . tion of these two statutes, but held the coWiterp_art of his nght to re_frain . ment entanglement with religion. • " . one suggests that the statute was : • that they were constitutional be- from acceptmg the creed ~tab.hshed It is the first of these criteria that iS · .nothing but a meaningless act. · cause, in its opinion, Alabama has the by the majority_. A~ one ti~e xt was. most plainly implicated by this case. . We must, therefore, conclude that power to establish a state religipn if it tho?ght that this nght mf erelyChPr:t>: In applying the purpose test it is ~ chooses to do so. · scnbed the preference o one ns . .. • the Alabama Legislature intended to · . tian sect over another, but would not . appi'l!pnate to ask w~ether govern- . change existing law and that it was . · Qu.estion Is Narrowed · 1 _ . uire equal respect for the con-·I ~ent s actual purp~se I~ to en~orse or motivated by the same purpose that' I The Court of Appeals agreeA with / ~nee of the infidel, the atheist, or disapprove of rebg10n. . In~~ case, · Senator Holmes's testimony frankly·. ; · the District Court's initial interpreta- · ~~ adherent of a non-Christian faith \ ~e answer to that question IS dts~si- described. The Legislature enacted· tion of the purpose of both Sec .. 16- such as Mohammedism or Judaism. ! txve. _For the recor? not only provi~es . Sec. 16-1-20.1 for the sole purpose of · 1-20.1 and Sec. 16-1-20.2, and held . BUt when the Wlderlying principle i us With an Wlambtguous afftrmative. expressing the state's endorsement of · I them both Wtconstitutional. We have has been examined in the crucible of , answer, but it also reveals that the prayer activities for one minute at the already a!firm~ the Court of A~ , Uti ation, the Court has" Wla~bigu- i enactment of Sec. 16-1-20.1 was not . beginning of each school day. The peals holdmg With respect to Sec. 16-. . ousiy concluded that the individual i motiv~ted by any clearly secular pur- addition of "or .volWltary prayer" in-, 1-20.2: Moreover, a~pellees have not · ; . freedom of conscience protected by \pose, mdeed, ~e statute had no secu- . questioned the holding that Sec. 16- 1 · the FirSt Amendment eJDbraces the lar purpose. · · ... --.._, 1-20 is v· · < Thus, the narrow ques- ' - • ·· - •· · • · · ~·, tion for lion is whether Sec. 16- I (o\~\ ~{" ~ 1 / 1-20.1, wh. __ .. authorizes a period of si- ·. ;· · ! lence for "meditation or volWltary · . From tlie~ Dissents .;~:.: I ... .•• ·, . I- f dicates that the state intended to ...... By Chief,J ustice Burger ·..- . o: . ;, :·~ . . ,. 1characterize prayer as a favored ment-of-stlence laws in other states . + .. · practice. Such an endorsement is not' do ~ot necessarily manifest the sam~ ·Somewhotroubletoreadtheopin-·' v ··. •·-.' '· · ;·.-;.,:_,,.::r .. ,•:: .' •.: .. consistent with the established princi-. infirmity• .-. . · . . . · ions in this case will find it ironic, per- which I do not ~lieve it ~· because·bf ,; , .·., pie that the Government must pursue . . A state-sponsored . moment pf si~ . haps even bizarre, that on the very its peculiar legiSlative his~ry._ ·."'·~: a course {)( complete neutrality to- . lence in the public schools is different. day we heard arguments in this case, · · · •· R · ·. ·· •: _·• ward religion. . · · . from·state-sponsored vocal prayer or the Court's session opened with an in- By Justice ehnqwst · ·~ : The importance of that principle: , Bible r_eading. First, a moment of st-· · vocation for divine protection. Across . · · · · l;:. '-; does not permit us to tteat this as an' ' lence lS not inherently religious~ 51- the park a few hundred yards away, ..Thirty-etght years ago this Court, .. ~ . ·.; inconsequential case involVing noth-: ~ lence, unlike prayer or Bible reading, the House of Representatives and the · m Everson v. Board of Education, .. :' . ing more than afew words of sym-' ! . n~ not be associated with a· reli Senate regularly open each session · (1947) summarized i~ exegesis of Es- · · bolic speech on behalf of the political \. , gtou:' ~xercise. Second, a. pupil. who with a prayer. These legislative · tablishment Clause doctrine thus! majority. Keeping in mind, as we · · parttctpates in a moment of silence prayers are not just one minute in "In the .words of Jefferson,• the_ d~tion, ~ut are extended, thought- c~ause agatnst es~ablishment of reli- must, "both the fundamental place ·1· ~eed no~ C4?~promise. his or her be held by th_e Establishment Clause in . hefs. It ts dtfft~~t to dtscern a se.rlous ful mvocattons and prayers for divine gton by law was Intended to erect •a · our constitutional scheme and ·the ·threat to reltgtous liberty from •·a ·guidance. They are given, as they wall of separation between church · . . ... --'· . -~~-- c.~ . room of silent, thoughtful schoolcliil- , , have been since 1789, by clergy ap- . and ~~te. "" · ·' . dren.,. . ·' · pointed as official chaplains and paid It ts Impossible to build sound 'COn~ I ·\ '!lyriad, subtle ways ui which Estab- 1 By mandating a moment of silence, · from the Treasury of the United stitutional doctrine upon a mistaken · · hshment Clause values can be erod · i a state does not necessarily endor!le States. Congress has also provided understanding of constitutional his to-· .. I chapels in the Capitol, at public ex- ry, but unfortunately the. Establish · ~·" we conclude that sec. 16-1•20 l 1 any act~ty that might occur dining ytolates the First Amendment :. :the penod. The crucial question is pense, where members ·and others ment Clause has been expressly : , · .~The judgment of the· Court ~f Ap2 whether the state has conveyed or· at- may pause for prayer, meditation, or freighted with Jefferson's misleading , ; : f peals is affirmed .. , . tempted'to convey the message·that a moment of silence. metaphor for nearly. 40 years. · · .:. '·'o· •. '. · children should use the moment of si- · Whether due to its lack of historical · - · · It makes no sense:to say that Ala- support or its practical unworkabil- · · · lence for prayer. . - ~ ·~ ByJustice Powell,· 1 bama has "~ndorsed prayer". by ity, the Everson "wall" has proven ~ The Court does not hold that the Es merely enactmg a new statute "to all but useless as a guide to sound con~ . . ' ··concurring :: · :::: ~ ta~li~hment ~lause · is so hostil~ to specify expressly that voluntary stittitional adjudication. It should be · religton that It precludes the States . prayer is one of the authorized activi- frankly and explicitly abandoned: ... My Concurrence' is prompted. by~.; ; from a_ffording schoolchildren an P,p-, ties during a moment of silence." To The true meaning of the Establish,:. .•: · J Alabama's persistence in attempting, . portumty for voluntary silent prayer.· suggest that ~ moment-of-silence· mentClause can only .be s~ .in-Jts '· '· to institute state-sponsored prayer in 1 The Court holds only that Alab~ma statute that m~lu~es the word · history. . • . . • ' .; ,, ·• · the public schools by enacting three 1\ •has intentionally crossed the line' be "prayer"unconstituttonallyendorses .. The Framers intended tha E:rta~r successive statutes. .. . · ·i tween creating a quiet moment dnr- religion, while one that simply pro- . liehment Clau:se 1;<> pronlbit the desig~ · . · · I would-vote fo uphold the Alabama l . . ing whic~ thos«: so inclined may pray, · vi des for a moment of silence doelf nation of any church as a "pational'! .~ statute if it also had a clear secular . and afftrmattvely endorsing •the ·not, manifests not neutrality bathos- one. The Clause was atso·desfgnedto"" · . ,. . ,purpose. Nothing in the record before ' particular religious practice of tility toward reJigion~ · stop the Federal Government fr.,om us, however, identifies a clear secular· i prayer. This.line may be a fine one, .. . · asserting a preference for one reli- purpose, and the state also has failed ' . ' but our precedents and the principles For decades our opinions have gious denomination ·or sect over ·( to identify any nonreligious reason 1 • of religious liberty require that we stated that hostility towan;t any reli- others. As its history abundantly for the statute's enactment. ': draw it. · \ ~ gion_or toward all relig~ons.ts as ~uch shows, however, nothing in the Estab for~n.dden by f:be Constttuti~n .as 1s an lishment Clause requires government ··-·--'!-~ ~. L . , By Justice O'Connor,: .· . offiCial establ~shment of rebgion. The to be strictly neutral between religion ... Alabama },egts~a~ure has no more · and irreligion, nor prohi,bit Congress- · · · · · Concurring ·. . -·1 "endorsed rehgton ttlat a stat~ or or the states from pursuing legiti. the Co~gre;os .does w~en it provtd~ mate secular end& through nondi&'. · I agree With th,:l judgment of the · ~ for legislative chaplams, or than t!lls criminatory sectarian means. ~ • · Court that, in light of the findings of · ·~ . Court does when it opens each sesston . The Court strikes down the· Ala-· the Courts below and the history of its · ~ with an invocation to God. bama statute because the state· enactment, Sec. 16-1-20.1 of the Ala bama Code violates the EstaiDlish-. By Justice White wished to "endorse prayer as a~·fa•· ment Clause of the First Amenclment. vored practice!' It would come as· As I read the filed opinions,_ a rna much of a shock to those who drafted In my view, there can be little doubt the Bill of Rights as it will to a large· that the purpose and likely effec~ is to , jority of the Court would approve ·.endorse . and · sponsor voluntary I· statutes that provided for a moment number of thoughtful Americans to- · · prayer in the public schools. I write ' of silence but did not mention prayer. day to learn that the Constitution,.as separately to identify the peculiar But if a student asked whether he ·construed by the majority, prohibits·.. features of the Alabama law that ren could pray du'ring that moment, it is the Alabama Legislature from 'ten-"· der it invalid, and to explain why mo- difficult to believe that the teacher dorsing" prayer. · ~·· •· ' could not answer in the affirmative. Nothing in the ·· Establishmen~· ...... · .•.c.... ,;, ··~··· ,___...... ~ ---··~·- ___..::_..-.;_, If that is the case, I would not invali- Clause of the First Arilendment, ·prop.;· .. date a statute that at the outset pro erly understood, prohibits any such •' vided the legislative answer to the generalized "endorsement" , ·of'· estion "May I pray?" This is so prayer. I would therefore reverse. the . en if the Alabama statute is infirm, judgment of the Court of Appeals. •. ':l'i '/ -·.. " · 'T~ti~ voiei'Ot~Taml "' ....~,.,.. __,., "It's - ..... · · : · , The House last May narrowly de said ReanaWfui t?ugh voteto~I;un;;. feated a 'similar but more stringent Cal'f ~resentatiVe Don Edwards th I orrua Democ ' e "equal access" measure, by a vote of successful o . :at who led the U."l· 270 to 151, 11 votes short of the two- "Th h PPDSitlon to the measure . e p ones have been rin . . -· J . thirds needed .. The bill's sponsors hook in all our off ., __ gmg o~f the \ brought it to the floor under the two S ICes...... , i tiJ!.rds rule because it precluded efforts • upporters of th /· · < • • : 1 was passed b th e measure, which to amend the bill. They said that they vote of 88 t y e Senate last June on a . feared that more than 500 such amend strength 0 ll, argued that it would ments wo?-Id be offered by the bill's op. students enh the constitutional rights of ponents, m an effort to filibuster by in th w o sought religious meetings ·. ai1lendment. - • e schools. Althou h r . . ~e initial House bill provided for a philosophi 1 . g po Itical and b. ca rneetmgs are cited in th cutoff of Federal aid to any school dis- Ill, such meetings, al d . . e trict that violated the "equal access" ·• .. ,··.. - in public schools. -r:;:a Jlltake J>lace provision. The Senate-paSsed bill had scribed b · 1 was _de no such provision, and its sponsors said Bill Now Going to President, provide .~~~ponso.rs as designed to that they expected the measure to be groups.· access" to religious enforced through civil lawsuits brought by those denied access to the schools. .. an Enthusiastic Backer, "TI:is is a constitutiomil is5~e a question of free speech and f • , ; "The , bil! was considerably im bl"'''o t d ree assem- proved, Said Representative Don Ed ·~. :for His Consideration . J '"' r s u ents,' said Representat· -1 wards, California Democrat a leading -~· Marge Rouk: N Ive .. ' '".·': ·., can. . ema, ew Jersey Republi- opponent. • ' ByMARTINTOLCHIN . •"· ~ He.said that Representative car1 D. ~ Representative Don,~onker, W~h--- • Per~, Kentucky Democrat and Special to The New York Times chau~an of the Education and Labor WASHINGTON, July 25-The House ington Democrat, and sponsor of the committee, a supporter of the bill had of Representatives today overwhelm- legislation, which would apply to all I Yfageda strong lobbying effort. · '- 1 ingly approved a Senate-passed bill federally financed schools that receive , • --', I permitting students to hold religious Federal money, noted afterward that 1"1P.etings in public high schools beiore · although the Senate version adopted by 'ter regular school hours. the House had included assurances on ,nder the bill, all religious meetings political and philosophical meetings, vould have to be voluntary and initi- "It's not political or philosophical aed by students, without sponsorship groups now being discriminated b) a school or its teachers, who could against." · · be kesent only as nonparticipat'lts. Mr. Bonker · predicted that the bill · It also assures the right of high "will inhibit future efforts at passing ar schoo.,\students to hold political school prayer amendment," and said i -and, that he expected, and hoped for, a court ~rt and roll-call, page Al . challenge to the legislation. ·· ~ 6 "The court ultimately has to make philosoph\aJ meetings. The measure the determination," he said. was a ppm~ by a vote of 337 to ·77, 61 • Opponents of the bill argued that it more votes ;han needed under~ special _ was an attempt to circumvent the court procedure nquiring a two,thirds vote . prohibition on organized school prayer,. dfor passage. lh_e bill now goes t. 0 Presi- andtiona! said separation that it violated of church the and constitu- state. ent Reagan, ~n enthusiastic support- They also feared that the law would · er,forhissignattre. . .-. . . lead to the coercion.of peer-conscious · Assertions\,y Both Parti~ teen-agers, and lead to the influx of The lopsided carne both.-:p-a''r- proselytizing cult groups in the public ' t . v~. as schools. Opponents also argued that the ~es assert their adherence to tradi- bill would· open the schools to fringe t10n~l values: family, patriotism and political and philosophical groups, in· rehgiOn. Lawmakers have been U!lder · eluding the Ku Klux Klan. , . ~ressure .rron:: some fOnstituenu'\ to / "This bill reverses a 200-year tradi- fmd a legislative way~ ease the.Fed-_, __ tion in this country, the separation of_ eral courts' prohibition\ of organiz'ed ~~ - __ ,_churcn and state," said Representative ~chool prayer, after tl:i:! Sepa'te r'e- .'1 Charles E. Schumer, Democrat of Jected a proposed ¥titutiorult' .I Broo. klyn. "We'll be adding a fourth 'r'' 1 amendment to allow sue~ prayer in_t.i):e · to our schools.- reading, 'riting, 'rith- 1 schools. . \. ~-:: , "'~· ., metic and religion." " . , The courts have found that'.organiied - ' ;: · Adopted as Amendment · · ; prayer in public schools vici.lates · the ' The measure approved today was •titutional principle of seMration of - adopted as an amendment to a bill that . .rch and state; and many' sChool di~ would approve programs worth nearly tri~ have int~rpreted this as' ba.nnipg'-· $1 ;_billion to improve instruction in religious meetmgs on school property.~_-·· mathematics, science and foreign Ian- Some lawmakers attributed .the lop.· guages, which was adopted by a vote of i sided vote to the difficulty of exi>lalning 393 to 15.· a "no" vote to constituents, becausu of the complexity of Fhe arguments_ · ·. -- ...... •· -~a~- ".Jt_,." •• ,..-"'> ... r."-·- ' ..... -- -,~·~ .... ';""..---:-·-:-;~ .Ro~l-Call Vote on Religiqus .MeetingS·· ~t -sch6b1s . . : . .. ~ I . !: I . ' ~· \ I I Republicans - Broomfield, Republlcana - Boehlert, yes; " · SOUTH DAKOTA . , WASHINGTON, July 25 (APi- Following is the roll-call vote of 337 to 77 by ves; Davis,· yes; Pursell, yes; Carney, yes; Conable, yes; Fish, which the House voted to allow student religious meetings in public high schools. Sawver, yes; Slllander, yes; va~ no; Gilman, no; Green, no; Hor· Democrat- Daschle, yes. der Jagt, yes. · ton, yes; Kemp, yes; Lent, yes; TENNESSEE A "yes" vote is a vote to allow the meetings. A "no" vote opposed the idea. Vot MI-NNESOTA Martin, yes; McGrath, yes; Moll· , . narl, yes· Solomon yes· Wortley Democrats-Boner, yes; Coop- ing "yes" were 181' Democrats and 156 Republicans. Voting "no" were 72 Demo Democrats - Oberstar no' yes. ' · ' ' ' er, yes; Ford, ·yes; Gore, yes; :penny, yes; Sabo, yes; SlkMskl: NORTH CAROLINA ; : Jones, xxx; Lloyd, yes. crats and 5 Republicans. An "xxx" denotes those not voting. There is one va- yes; Vento, no. · : Republicans - Duncan, yes; • cancy in the 435-member House. ·· : . . · · . , ' , ' Republicans -. Frenzel, yes; Democrats - Andrews, yes; . Quillen, yes; Sundquist, .YeS. · · Stangeland, yes; Weber, yes. , Britt, yes; Clarke, yes; Hefner, TEXAS 1 1 ·: . Republicans -.JOhnson, yes;. IOWA MISSISSIPPI ' ves; Jones, yes; Neal, yes; Rose, I . ~LABAMA ves; Valentine, yes; Whitley, yes. Democra~ - Andrews, yes; " Democrats - Bevin." yes; Er-. ,McKinney, ves. Democrats- Bedell, yes; Har· ·Democrats - Dowdy, xxx; Republicans ..,. Broyhill, yes; Brooks, ves, Brvant, yes; Cole- . drelch, yes; Fllppa, yes; Nichols, ' ' • . . DELAWARE : · kin, yes; Smith, ves. Montgomery, yes; Whitten, yes. Martin, yes. · • man, ves; de Ia Garza, yes; Frost, . Republicans - Evans, yes; ves; Shelby, ves. · Dem' ocret- carper ves. Republicans- Franklin, yes; · NORTH DAKOTA :! vses; G1onzalez, xxx; R. Hall, yes; RepUblicans- Dickinson, yes; • Leach, yes; Tauke, yes. Loti, .yes. . · .. 1 , • Hal , ves; Hance, yes; Hlght- MISSOURI · . Democrat...:. Dorgan, yes. , ! ower, ves; Kazen, yes; Leath, Edwards, xxx. · FLORIDA KANSAS .. yes; Leland, no; Ortiz, yes; Pat- · ALASKA Democrats - Bennett, yes; Democrats - Glickman, yes; Democrats .-. Clay, xxx; Ge- OHIO ' man, yes; Pickle, yes; Stenholm,": Republican- young, yea. Chappell, ves; Fascell, no; Slattery, yes. phardt, yes; Skelton, yes; Volkm- Democrats - APPlegate, yes; yes; Vandergriff, yes;' Wilson, Republicans - Roberts, yes; er, yes; Wheat, no; Young, xxx • .'Eckart, yes; Felohan, no; Hall, xxx; Wright, ves. 'ARIZONA ' : . ' ' ~~u1rl!~~d~~~teh~~~u:1 Whittaker, ves; Wlnn, yes. MacKay, yes; Mica, yes; Nelson, R9PUbllcens- Coleman, yes; yes; Kaptur, yes; Luken, yes; Republicans - Archer, yes; Democrats - McNulty, yes; KENTUCKY Emerson, yes; Taylor, yes, I Oakar, no;. Pease, yes; Seiber· BGartlett, yes; Fields, yes; Udall, yes. · '· ' . yes; Pepper, no; Smith, no. MONTANA ling, yes; stokes, no. : ramm, xxx; Loeffler, yes;' Paul, i Republicans - Blllrakls, ves; Democrats - Hubbard, yes; ' . Republicans - DeWine, yes; yes. ' Republicans - McCain, yes; Lewis, ves; Mack, yes; McCol Mazzoll, yes; Natcher, yes{ Per RUdd. yes; stump, xxx. lum, yes; ShaiN, ves; Young, yes. kins, yes. Democrat- Williams, yes. 1 Gredlson, vas; Keslch, yes; Kind- \ ARKANSAS . GEORGIA . Republicans - Hopkins, yes; ·Republican - Marlenee, ves. ness, ves·; Latta, yes; McEwen, UT ~H Rogers, yes; Snyder, yes. NEBRASKA ves; Miller, ves; Oxley, yes; , Democrats -Alexander, yes; ··. Democrats - Barnard, yes; Regula, ves; Williams, yes; Republicans - Hansen, yes; , Anthony, yes. Darden, yes; Fowler, yes; Hatch LOUISIANA Republicans - Bereuter, yes;· wvne, yes. .f·i · Marrl~, ~~ Nielson, yes. · · ! , 1 Republicans- Bethune, ves; Daub, yes; Smith, yes. , OKLAHOMA ':1 .i···.: , VERMONT ' •. . Hammerschmidt, ves. . · &r, yes; Jenkins, yes; Levit as, Democrats - Boggs, yes; ves; Rav, yes; Rowland, yes; Breaux, ves; Huckaby, yes; NEVADA Democrats - English,· yes;.; · Republican - Jeffords, yes. i. ·.. · CALIFORNIA. · ' Thomas, yes. Long, yes; Roemer, yes; Tauzin, f Republican - Gingrich, yes. Democrat - Reid, yes. ' Jones, ves; McCurdy, vas; Synar,. · • ' · VIRGINIA · · ' Democrats- Anderson, ves; yes. Republican-Vucanovlch, yes ' yes; watkins, yes. · : , D . Bates, no; Bellenson, no; Bar· HAWAII' Republicans- Livingston, yes; Republican .,.. Edwards, yes. · ·· emocrats - Boucher, vesi Moore, yes:. NEW HAMPSHIRE 1 man, no; Bosco, no; Boxer, no;_ Democrats- Akaka, .no; Het- ' OREGON . · · , ~.~~lei, ves; Olin, yes; Slslsky, Democrat'- D'Amours, yes.'. ~~~J'8etY~~s~::r:ogix::, ~a:'~~: tel, xxx. . ' , 1 ' MAINE Democrats - AuCoin, yes; RePVbllcans - Bateman, yes·; Republican - Gregg, yes., Weaver, yes; Y'/Yden, yes ·, Bllley, ves; Parris, yes; Robin- mally, no; Edwards, no; Fazio, IDAHO . Republicans-McKernan,yes; NEW JERSEY . ' .yes; Hawkins, no; Lantos, no; Republicans-Craig, yes; Han- Snowe, yes. Republican-D. Smith, yes; R.· son, yes; Whitehurst, vas; Wolf< Lehman, yes; Levine, no; Marti~ Democrats - Dwyer, yes• , Smith, ves., ' · , : · ves. , .·. · · nez. ves; Matsui, yes; Miller, yes; nn,xxx. MARYLA~D Florio, no; Guarini, yes; Howard, . : '1 . , WASHINGTON Mlneta, no; Panetta, yes; Patter· Democrats - Barnes, no; yes; Hughes, yes; Mlnlshf no; · PENNSYLVaNIA.. ; '! . · D ·son, ves; Rovbal, no; Stark, vas; ..'· ILLINOIS Rodino, yes; Roe, yes; Torr celll, , "' · 1 : •· • emocrats - Bonker, ve!i; Byron, yes; Dyson, yes; Hover, no. Democrats - Borski ito; Dtcks, yes; Foley, yes; Lowry, To~~:ubY~n~~,~~h~; ves; ·. I ., Democrats - · Annunzlo, ·no;. yes; Long, no; Mikulski, yes; Republicans - Courter, yes; Coyne, no; Edgar, no; Focilletta · no; Swift, yes: · : Chapple, yes; Dannernever, yes; Collins, no; Durbin, yes; Evans, Mitchell, no. Rinaldo, yes; Roukema, yes; no; Gaydos, ves; Gray, no; Harrl: MRepubllcans - Chandler, ves; Dreier, yes; Fiedler, yes; Hunter, ves; Haves, no; Lipinski, yes; Republican- Holt, yes. Smith, yes. · · . so~, yes; Kolter, yes; Kostmayer, . orrtson, yes; Pritchard, yes. vas; Lagomarsino, yes; Lewis, Price, ves; Rostenkowskl, xxx; MASSACHUSETTS NEW MEXICO wno't Murphy, yes; Murtha, Yes; .WEST VIRGINIA yes; Lowery, yes; Lungren, ves; Russo, yes; Savage, no; Simon, t a oren, no; Yatron,. yes. 1 McCandless, yes; Moorhead, yes; xxx; Yates, no. Democrats-Boland, yes; Don· Democrat- Richardson, yes. Republicans - Clinger, yes· Democrats - Mollohan, yes; Packard, yes; Pashayan, ves; Republicans- Corcoran, yes; nelly, yes; Early, yes; Frenkt Republicans - Luten, vas; Coughlin, no; Gekas, yes; God- Rahal!, v•s; staggers, ves; Wise, Shumway, yes; Thomas•. yes; D. crane, ves; P. Crane, yes; Er· . yes; Markey, no; Mevroules, ves; Skeen, yes. • dllng, yes; McDade, ves; Rldoe yes•. ' ZSChau, yes. , \ · . ' lenborn, yes; Hvde, yes; Madl· Moakley, yes; O'Neill, xxx; Shan yes; Ritter, yes; Schulze, yes) , ·, ·. COLORADO · ; ' " gan, ves; Marlin, ves; Michel, non, xxx; Studds, no. Shuster, ves; Welker, yes. 1, WISCONSIN . . · , ' yes; O'Brien, yes; Porter, no. Republican - Conte, vas. ; NEW YORK RHODE ISLAND , ! ': Democrats- Aspln, yes; Kas-', Democrats - Kogovsek, no; .I · Democrats - Ackerman, no; tenmeler; no;' Kleczka, ·yes; MICHIGAN Addabbo, no; Blagg!, xxx; Dow Democrat- St Germain, yes. Sc~~=rea':s ~rt~r~Wn, yes; INDIANA ney, yes; Ferraro, xxx; Garcia, Republican - Schneider, yes. Moody, no; Obey, ves. Kramer, yes; Schaefer, yes. Democrats- Hall, no; Hamil- Democrats - Albosta, ves; no; LaFalce, yes; Lundlne, yes; Republicans-Gunderson, ves; ton, ves; Jacobs, yes; McCloskey, Bonlor, no; Carr, yes; Cohvers, McHugh, no; Mrazek, yes; SOUTH CAROLINA Petri, yes; Roth, vesi Sensen CONNECTICUT ves; Sharp, ves. · xxx; Crockett, no; Dlngell, ves; Nowak, yes; ottlnger, no; owens, Democrats - Derrick, yes· brenner, ves. · Demofrats - · Geldenson, no; Republicans - Burton, yes; Ford, no; Hertel, yes; Klldee, no; Rangel, no; Scheuer, no; Spratt, ves; Tallon, ves. " WYOMING Coats, ves; Hiler, yes; Hillis, ves; yes; Levin, no; Traxler, yes; Kennelly, no; Morrison, yes; Schumer, no; Solarz, no; Strat Republicans- campbell, v.es· Republican- Cruiney, yes. · .RI!,tchtord, yes. Mvers, yes. · Wolpe, yes. to!!_.'ye~;. Towns, xxx; Weiss, no • J-tartnett, ves; Spence, yes. · ' \ '•. --~--======'~.--- Text ofKey ProvisiOns .On Religious Meetings Special to The New York Times WASHINGTON, July 25- Following are the key provisions of the Equal Access Act, approved by the House today as Title VIII of a bill providing money to improve the teaching of science and mathematics.:: · · i Sec. 802. (a) It shall be unlawful for formly provides that-- , any public secondary school which re (1) the meeting is voluntary and ceives Federal financial assistance , student-initiated; ~ . · and which has a limited open forum to ' (2) there is no sponsorship of the deny equaL access or a fair oppor meeting· by the school, the govern- . tunity to, or discriminate against, ment, or its agents or employees; ! any students who wish to conduct a (3) employees or agents of the ,meeting within that limited open school or government are present at . forum on the basis of the religious, religious meetings only in a nonpar- ; political, philosophical, or other con ticipatory capacity; tent of the speech at such meetings. · ( 4) the meeting does not materi- ally and substantially interfere with ' (b) A public secondary school has a the orderly conduct of educational ac limited open forum whenever such tivities within the school; and school grants an offering to or oppor (5) nonschool personS may not di tunity for one or more noncurriculum rect, conduct, control, or regularly at related student groups to meet on tend activities of student groups. school premises during noninstruc tional time. (d) Nothing in this title shall be con strued to authorize the United States (c) Schools shall be deemed to offer or any state or political subdivision a fair opportunity to students who thereof _ ~s~ to conduct a n:teeting within it;s (1) to influence the form or con limited open forum 1f such school unl- tent of any prayer or other religious t activity; . (2) to require any person to par ticipate in prayer or other religious activity; (3) to expend public funds beyond the incidental cost of providing the space for student-initiated meetings; ( 4) to compel any school agent or 1 employee to attend a school meeting if the content of the speech at the meeting is contrary to the beliefs of the agent or employee; (5) to sanction meetings that are otherwise unlawful; (6) to limit the rights of groups of students which are not of a specified numerical size; or (7) to abridge the constitutional rights of an~ perst??· (e) Notwithstanding the availabil ity of any other remedy under the Constitution or the laws of the United · States, nothing in this title shall be construed to authorize the United States to deny or withhold Federal financial assistance to any school. - (f) Nothing in this title shall be con- 1 ! strued to limit the authority of the .~ school, its agents or employees, to maint'ain . order and discipline on school premises, to protect the well being of students and faculty, and to assure that attendance of students at meetings is voluntary. ' ...- ..... '--