Fifth, the unintended but inevitable result of current judicial interpretations of the Establishment Clause is not state neutrality but a complete exclusion of religion which is, in effect, state discouragement of religion. The governmental "neutrality" mandated by the Supreme Court on matters of religion has proven in fact to be unachievable. Finally, the amendment is needed because it would allow decisions of essentially local concern to be made by states and localities rather than the federal judiciary. For over 170 years, school prayer issues were resolved at the state and local levels by the residents of the affected communities. Their choices regarding school prayer reflected the desires and beliefs of the parents and children who were directly and substantially affected. III. The proposed constitutional amendment is essentially intended to restore the status quo with respect to the law governing prayer in public schools that existed before Engel v. Vitale and Abington School District v. Schempp were decided, i.e., when prayers such as the Regents' prayer and readings from the Bible without comment were not thought to be unconstitutional. However, the proposed amendment affirms the fundamental right of every person to reject any religious belief, as he or she deems fit, and not participate in the expression of any religious belief. By establishing that "Nothing in this Constitution shall be construed to prohibit individual or group prayer," the proposed amendment would make clear that the Establishment Clause of the First Amendment could no longer be construed to prohibit the government's facilitation of individual or group prayer in public schools. The amendment also would foreclose reliance upon the "implied coercion" theory advanced by the courts, which presumes that any group prayer by consenting students has a coercive effect upon the objecting students in violation of their right to free exercise of religion, and that therefore no prayer is constitutionally permissible. However, as discussed below, the proposed amendment expressly protects the right of objecting students not to participate in prayer. This provision is sufficient to protect the rights of those who do not wish to participate without denying to all others who desire to pray an opportunity to do so. The intent of the proposed amendment is to leave the decisions regarding prayer to the state or local school authorities and to the individuals themselves, who may choose whether they wish to participate. The proposed amendment would not require school authorities to allow or participate in prayer, but would permit them to do so if desired. Group prayers could be led by teachers or students. Alternatively, if the school authorities decided not to take part in a group prayer, they would be free to accommodate the students' interest in individual or group prayer by permitting, for example, prayer meetings outside of class hours or student-initiated prayer at appropriate, nondisruptive times, such as a brief prayer at the start of class or grace before meals. School authorities could, of course, develop reasonable regulations governing the periods of prayer, in order to maintain proper school discipline. - If the school authorities choose to participate in a group prayer, the selection of the particular prayer subject of course to the right of those not wishing to participate not to do so-- would be left to the judgment of local communities, based on a consideration of such factors as the desires of parents, students and teachers and other community interests consistent with applicable state law. Thus, the proposed amendment would restore the practice maintained throughout most of this nation's history, in which the determination of the appropriate circumstances of prayer was made by state and local authorities. The amendment does not limit the types of prayer that are constitutionally permissible and is not intended to afford a basis for intervention by federal courts to determine whether or not particular prayers are appropriate for individuals or groups to recite. Because the proposed amendment merely would remove the bar of the Establishment Clause as construed by the Supreme Court, state laws regarding the availability of prayer in public schools would not be affected. The amendment by its terms is not limited to public schools, and would apply to prayer in other public institutions as well. The intent of this language is to make the remedial provisions of this amendment coextensive with the reach of the First Amendment's Establishment Clause as construed by the Supreme Court. Although most questions relating to public prayer arise in the context of public schools, the proposed amendment is drafted to apply to prayer in other public institutions, including prayers in legislatures. The second sentence of the proposed amendment guarantees that no person shall be required to participate in prayer. This prohibition assures that the decision to participate in prayer in public schools and other public institutions will be made without compulsion. Those persons who do not wish to participate in prayer may sit quietly, occupy themselves with other matters, or leave the room. Reasonable accommodation of this right not to participate in prayer must be made by the school or other public authorities. Thus, the exercise of the right to refrain from participating cannot be penalized or burdened. The guarantee against required participation in prayer parallels and reaffirms the protection already afforded by the Free Exercise Clause of the First Amendment. Thus, the second sentence of the proposed amendment assures that students and others will never have to make a forced choice between their religious beliefs and participation in a state-sponsored prayer. Indeed, the second sentence of the proposed amendment provides greater protection than the Free Exercise Clause, because a person desiring not to participate in prayer need not show a religious basis for his belief. Accordingly, there would be no need for an inquiry into the religious basis for a person's decision not to participate in prayer. The fact that one or more students do not wish to participate in prayer, however, would not mean that none of the students would be allowed to pray. The provision forbidding required participation in prayer is intended to be sufficient to protect the interests of those students. As the Supreme Court stated with respect to the Pledge of Allegiance, "the refusal of these persons to participate in the ceremony does not interfere with or deny the rights of others to do so. 14/ This would be the proper rule to apply with respect to school prayer: persons who do not wish to participate in prayer should be excused or may remain silent, but that should not interfere with or deny the rights of others who do wish to participate. " IV. For these reasons, we strongly urge prompt action on this proposed amendment, so that the process of state ratification can begin. We began our national history with an unforgettable Declaration that governments were instituted in order to secure to the people those inalienable rights, including life, liberty and the pursuit of happiness, with which people were "endowed by their Creator." Those rugged and inspired individuals who 14/ West Virginia State Board of Education v. Barnette, 319 U.S. 624, 630 (1943). 39-015 0-84--3 founded this nation understood the importance of recognizing the source of our blessings. It is time that we restore the ability of our schoolchildren to do so as well. Mr. Chairman, I shall be glad to answer any questions you or members of the Committee might have. Senator HATCH. Our next witness will be Ms. Bonnie Bailey, a senior student at Lubbock High School in Lubbock, TX. Monterey High School was, of course, involved in the notorious Lubbock decision, one of the Federal court decisions toward which this hearing is directed. Ms. Bailey delivered such an outstanding piece of testimony yesterday on the equal access bill sponsored by Senator Denton that I asked her if she would be good enough to stay 1 more day and share her perspectives with this committee. We are happy to have you here, Bonnie, and we will take your testimony at this time. STATEMENT OF BONNIE BAILEY, STUDENT, MONTEREY HIGH SCHOOL, LUBBOCK, TX Ms. BAILEY. Thank you. I would like to submit my Senator HATCH. Could you pull your microphone up closer? Senator HATCH. And we will put your complete statement in the record, OK? Ms. BAILEY. OK, thank you. I am very pleased to be here today, and thank you for inviting me. I am in Washington just to try to get people to understand what is happening in Lubbock and across the Nation in different public schools and to understand that the freedom of religious speech is being denied to students thus discrimination is practiced against students. Senator Hatch referred to the Lubbock case which has been going on for a few years. Until last year the Lubbock Independent School District allowed groups to meet on school property before or after regular school hours for educational, ethical, moral or religious purposes. We can no longer do that because the Lubbock Civil Liberties Union brought a suit against our school district and such meetings were held unconstitutional. We have been taught in school for years that the Constitution guarantees the freedom of speech to all citizens. Americans can picket, demonstrate, curse and use God's name in vain, but when we want to get together to talk about God reverently, then we are not permitted to do so. A lot of students, including myself, do not understand the inconsistency here that we can talk about anything else, but we cannot talk about religion. During my sophomore year in high school, I participated in a group called "Morning Watch," which met before school. It was |