PREPARED STATEMENT OF GEOFFREY R. STONE Twenty years ago, in Engel v. Vitale,1 the Supreme Court invalidated the practice of government sponsored prayer in the public schools. In 1951, the New York Board of Regents, "aware of the dire need to pass on America's Moral and Spiritual Heritage to our youth," devised a prayer to be recited at the opening of classes each day to "strengthen . . the belief in a Supreme Being."2 "Almighty God, we acknowledge our The prayer: dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country." The Board of Education for the New Hyde Park school district directed that the Regents' prayer "be said daily in our schools."3 The prayer was said Students aloud at the beginning of classes each day, led by the teacher or a student singled out by the teacher for this purpose. who did not wish to participate were excused from participation or permitted to leave the classroom. The Court, in a six-to-one decision, held that "by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause."4 Justice Black, speaking for the Court, explained that "this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America."5 As a result, Black noted, the framers of the First Amendment "knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval," and the First Amendment "was added to the Constitution" in part to assure "that the people's religions [would] not be subjected to the pressures of government for change each time a new political administration is elected to office."6 Thus, Black concluded, "the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official NOTE.--Footnotes appear at end of article. prayers for any group of the American people to recite as a part of a religious program carried on by government."7 Moreover, Black maintained, "[n]either the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of students is voluntary can serve to free it from the limitations of the Establishment Clause... 8 On the coercion issue, Black suggested that "laws officially prescribing a particular form of religious worship [may in fact] involve coercion," for "[w]hen the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain."9 Ultimately, however, Black found it unnecessary to rule on coercion, for "[t]he Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate 10 directly to coerce nonobserving individuals or not." The Establishment Clause, Black explained, was premised upon two central assumptions: "that a union of government and religion tends to destroy government and to degrade religion," and "that governmentally established religions and religious persecution go hand in hand."11 Black concluded that, wholly apart from any coercion, "[t]he New York Laws officially prescribing the Regents' prayer" were "inconsistent" with these assumptions.12 In answer to the argument that the Regents' prayer "does not amount to a total establishment of one particular religious sect to the exclusion of all others," and that "the Regents' official prayer is so brief and general [that] there can be no danger to religious freedom in its governmental establishment," Black called forth "the words of James Madison, the author of the First Amendment: "[I]t is proper to take alarm at the first experiWho does not see that the same ment on our liberties. authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other [s]?'"13 A year after Engel, the Court, in Abington School District v. Schempp, 14 considered the constitutionality of a Pennsylvania law requiring all public schools to begin each day with readings from the "Holy Bible." Pursuant to this statute, the Abington Senior High School broadcast "opening exercises" while pupils attended their homerooms or advisory sections. These "exercises" included readings by selected students of ten verses from the "Holy Bible." The student reading the verses was permitted to select the passages and to read from any version he chose, although only copies of the King James version were furnished by the school. The reading of the verses was followed by recitation of the Lord's Prayer, likewise over the intercommunications system. Students were asked to stand and join in repeating the prayer in unison. Students who wished not to participate were permitted to leave the classroom or simply to remain silent. Building upon Engel, the Court, in an eight-to-one decision, held this practice unconstitutional. Justice Clark, speaking for the Court, recognized that "[w]e are a religious people whose 15 institutions presuppose a Supreme Being." Indeed, Clark noted, our religious background "is evidenced today" in our oaths cf office and in the prayers with which we traditionally begin our legislative and judicial sessions.16 Clark emphasized, however, that "religious freedom is [likewise] strongly embedded in our public and private life."17 Thus, Clark explained, if either the purpose or primary effect of a law "is the advancement or inhibition of religion then the enactment [violates the First 18 Amendment]." Clark added that this "wholesome 'neutrality'" does not reflect any hostility to religion but, rather, is designed to prevent "a fusion of governmental and religious functions or a concert or dependency of one upon the other. 19 Applying the "purpose or primary effect" standard in Schempp, Clark noted that the "exercises are prescribed as part of the curricular activities of students who are required by law to attend school," and that "such an exercise is a religious ceremony and was intended by the State to be so."20 Clark thus concluded that the exercise violated "the command of the First Amendment that the Government maintain strict neutrality, neither aiding nor opposing religion."21 22 The decisions in Engel and Schempp triggered heated debate. Not surprisingly, the reaction divided sharply along denominational lines: Catholics tended to condemn the decisions; Jews were generally supportive; Protestants were divided. Since 1962, critics of the decisions have attempted to overturn them by constitutional amendment. Within three days of Engel, more than fifty proposed constitutional amendments had been introduced, and by the end of the 88th Congress, after Schempp, more than one hundred fifty such amendments had been offered. Proposed constitutional amendments seeking to overturn these decisions have been introduced in Congress in every year since 1962. The Senate has voted twice on such proposals, the House once. In each instance the measure was defeated. 23 On May 17, 1982, President Ronald Reagan proposed a Nothing in this Constitution shall be This amendment should not be enacted. 1 Engel and Schempp are founded upon a perfectly reasonable understanding of the Establishment Clause. They are in accord with the Court's precedents, 25 and they are consistent with the language, purposes, and history of the First Amendment. Although the practice of government sponsored prayer in the public schools may not in itself amount to the formal "establishment" of a state religion, "the First Amendment, in its final form, did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion."26 Moreover, the practice of government sponsored prayer in the public schools directly implicates the most fundamental values underlying the First Amendment. Unlike other Establishment Clause questions, the school prayer issue does not involve the neutral provision of wholly secular government services, such as fire and police protection, to both religious and secular institutions.27 Nor does it involve the neutral and essentially passive acquiescence of government in the conduct of both religious and secular activities on government property, such as the distribution of leaflets on public streets.28 Rather, government sponsored prayer in the public schools involves direct and active government involvement in the encouragement and structuring of perhaps the most basic form of religious activity For government to compose, select, or promote prayers to be recited by children in a setting dedicated specifically to the inculcation and "preservation of 29 prayer itself. values" would seem necessarily to threaten the constitutionally compelled separation of Church and State and to undermine the fundamental principle that "religion is too personal, too sacred, too holy, to permit its 'unhallowed perversion' by [civil authority]."30 Three arguments are most commonly offered in opposition to Engel and Schempp. First, it is sometimes said that Engel and Schempp are predicated upon a misguided notion of "neutrality." Under this view, the Establishment Clause "command [s] impartiality [onlyl as among the various sects of theistic religions, that is, religions that profess a belief in God. But as between theistic religions and those nontheistic creeds that do not acknowledge God, the precept of neutrality [does] not obtain.-31 Accordingly, so-called "nondenominational" prayers, such as the Regents' prayer invalidated in Engel, pose no Establishmnent Clause issue. At the outset, it should be emphasized that the proposed constitutional amendment cannot be defended on this basis, for as the Administration itself concedes, "[t]he proposed amendment does not . . . limit prayer in public schools to |