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Submitted by John M. Murphy

Editorial Comment in August Issue of COLUMBIA, Official Magazine of Knights of Columbus.

Restoring the Freedom to Pray

THE United States Congress has before it a constitutional amendment to permit voluntary prayer in public schools.

Submitted by President Ronald Reagan, the proposed amendment reads: "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 by any state to participate in prayer."

The amendment is designed to overcome a Supreme Court philosophy of hostility to public prayer which goes back to the lote 1940s. The high court's philosophy was spelled out by Associate Justice Hugo Black in 1947. He wrote: "Neither o state nor the federal government can set up a church. Neither con pass lows which aid one religion, aid all religions or prefer one religion over another. ... No tax in any amount, lorge or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion."

In effect the Supreme Court held government may not do anything that would assist religion in any way. Such a stance of "neutrality" regarding religion and irreligion had the practical consequence of developing into hostility to religion. This was a complete break with the past and contrary to the mind of the Constitution's original framers when they drafted the First Amendment: "Congress shall make no low respecting an establishment of religion, or prohibiting the free exercise thereof."

History shows the framers had in mind a benevolent neutrality toward all religions without designating any one as the official religion. From the very beginning Congress opened its sessions with prayer, a practice that persists today. Just four years after the First Amendment wos adopted the Continental Congress passed the Northwest Ordinance, calling for creation of schools in the Northwest Territory on the grounds that "religion, morality and knowledge are necessary to good government and the happiness of man. kind."

Prior to sending the constitutional amendment to con. gress, President Reagon participated in the National Day of Prayer on the first Thursday in May, a tradition which, he pointed out, was begun by the Continental Congress. Addressing those taking part in the prayer observance at the White House, the president said:

"Prayer hos sustained our people in crisis, strengthened us in time of challenge and guided us through our daily lives since the first settlers come to this continent....

"No one will ever convince me that a moment of voluntary prayer will harm a child or threaten a school or state.

"But I think it can strengthen our faith in a Creator who alone has the power to bless America. ...

**No one must ever be forced to take part in any religious exercise. But should government forbid religious practice."

Msgr. Daniel Hoye, general secretary of the U.S. Catholic Conference in Washington, welcomed President Reagon's initiative. The amendment would knock down a 1962 high court decision which declared that voluntary recitation in publie schools of a prayer composed by the New York Store Board of Regenis was unconstitutional, and a 1963 court ruling asserting that voluntary participation by students in

Bible reading or recitation of the Lord's prayer in public schools was likewise unconstitutional.

Msgr. Hoye pointed out that the amendment really should deal with the larger issue of voluntary religious activities such as voluntary religious instruction in public schools, which was declared unconstitutional by the high court in 1948. The court then stated that a program for releasing children, with parental consent, from public school classes so they could receive religious instruction on public school premises from representatives of their own faith was unconstitutional. Msgr. Hoye noted that an amendment specifically reversing the 1948 decision would be "a powerful factor in restoring to all Americans a basic liberty of which they are now deprived."

Repeated polls indicate voluntary prayer in public schools has brood support. From 70 to 85 percent favor a constitutional amendment restoring to children the right to pray in schools. The importance of the amendment is underlined by the fact that only a few months ago the Supreme Court ruled unconstitutional the attempt of a group of high school students near Albany, N.Y., to gather of their school for proyer before classes start.

The traditional anti-prayer groups have voiced opposition to the proposed amendment and threaten vociferous lobbying. Spearheading the drive are the American Civil Liberties Union, Americans United for Separation of Church and State and the National Coalition for Public Education and Religious Liberty.

Passage of the proyer amendment would serve to moderate the current judicial philosophy of hostility to religion. It also would set the stage for other voluntary religious exercises, including religious education under the auspices of parental committees.

Since prayer and discussion of religious values were stopped in the public school by the Supreme Court there has been a serious deterioration of moral standards. To compen. sate for the absence of a religious philosophy some schools have introduced "values clarification" sessions. In these gatherings moderators try to help students disover, clarity and strengthen their own personal values, taking precau. tions not to impose any religious or moral standards on the group. What has evolved, however, has not brought great benefit to either the students or to society. Rather the "values" discovered and strengthened were largely for selfgratification, the opposite of traditional Judeo-Christian ethics. Consequently the American public schools have been propagating a form of paganism, paralleling the philosophy inculcated behind the Iron Curtain.

The Declaration of Independence, which led to establish. ment of the United States, began with an appeal to God as the origin of all rights. If the prayer amendment is adopted, it will restore to children the right to pray to and discuss the Supreme Being without a suffocaring velo by the Supreme Court. All interested in restoring this right should write to their congressman, House of Representatives, Washington, D.C. 20515. and to their senators, U.S. Senote, Washington, D.C. 20510, uiging support for the amendment to permit voluntary prayer in schools.

Elmer Von Feat



The National Association of Evangelicals appreciates this opportunity to testify in support of S.J. Res. 199. NAE is an association of some 36,000 churches included within forty member denominations and an additional thirty-five nonmember denominations. We serve a constituency of 10-15 million people through our commissions and affiliates, such as World Relief and National Religious Broadcasters.

On behalf of the National Association of Evangelicals, I want to applaud the President for initiating the effort to restore religious freedoms which have been eroded by the courts. My testimony will (1) focus on the need for a constitutional amendment to return to the original meaning of the First Amendment by restoring a balance between the Establishment and Free Exercise Clauses, (2) support the basic concept of S.J. Res. 199, and (3) offer for the consideration of this Committee a suggested change in language to strengthen the proposed amendment. Before proceeding to the body of my testimony, I would like to associate my remarks with the excellent legal analysis of the amendment prepared by the Justice Department's Office of Legal Policy dated May 14, 1982.

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Americans are generally united on the subject of school prayer. By majorities of 75% and more, they endorse the concept of voluntary group prayer in the nation's public schools. Why?

In Engel v. Vitale, 370 U.S. 421 (1962) and Abington School District v. Schempp, 374 U.S. 203 (1963), the Supreme Court banned from public schools as unconstitutional both government-sponsored prayers and the devotional reading of the Bible. If interpreted narrowly, those decisions would not necessarily have proven harmful, but in practice the lower courts and school administrators have carried the spirit of those decisions further than was warranted. Those who categorically oppose prayer in schools have been successful in virtually eradicating any kind of religious reference in many public schools.

Let me cite just a few examples. In Lubbock Civil Liberties Union v. Lubbock Independent School District, 669 F. 2d 1038 (5th Cir. 1982), the court held that a school system's permission for students to conduct voluntary meetings for educational, religious, moral, or ethical purposes on school property before or after regular class hours violated the Establishment Clause. See also Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980), cert. denied, 102 S. Ct. 970 (1981). In another case, a school district's decision to allow student initiated prayer at voluntary school assemblies unsupervised by teachers was struck down on Establishment Clause grounds. Collins v. Chandler Unified School District, 644 F.2d 759 (9th Cir.), cert. denied, 102 S. Ct. 322 (1981). And in Stein v. Oshinsky, 348 F.2d 999 (2d Cir.), cert. denied, 382 U.S. 957 (1965), a school principal's order forbidding

kindergarten students from saying grace before meals on their own initiative was upheld.

These cases, as well as a host of others, reveal a propensity of the courts to view every form of religious activity solely in Establishment Clause terms. The President's proposed amendment recognizes the urgent need to return to the original meaning of the First Amendment by restoring more of a balance between the Establishment and Free Exercise Clauses.

Opponents of the President's initiative have been quick to observe that the responsibility for religious training rests with the home and the church. We couldn't agree more. But their truncated analysis fails to address the problem of millions of school-age young people who, for lack of any meaningful acknowledgment of God in the public schools, are left to conclude that the state recognizes no power higher than its own. Creation of such an impression is not in keeping with the religious heritage bequeathed us by our Founding Fathers, with longstanding national tradition, and with the desire of the great majority of our citizens today.

This Committee faces a grave responsibility to respond to the wishes of the American people, who in their inherent wisdom realize the need for change,


S.J. Res. 199 would constructively amend the Constitution by adding an Article reading as follows:

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 by any State to participate in prayer.

This amendment steers a wise course by not conferring an affirmative right to prayer in the public schools. It would simply remove any constitutional obstacle to voluntary prayer. In doing so it would meet the problem we have indicated the need to shift the focus from the Establishment Clause to the Free Exercise Clause in order that the public schools be permitted to accommodate the free exercise of religion.

In an effort to live up to the severe constraints of court-imposed "neutrality," our public schools have avoided even acknowledging the existence of God. This public school environment, which in effect makes God irrelevant, is weighted with unspoken values. It subtly makes man the measure of all things the very definition of secular humanism. The distressing irony is that the Supreme Court has recognized Secular Humanism as one of the nontheistic religions. Torcaso v. Watkins, 367 U.S. 488, 495 (1961). If we are to avoid establishing humanism in the public

schools, there has to be some opportunity for opposing views to be heard. Today government "neutrality" is a myth.

Justice Stewart has proven to be a prophet. As he said in his powerful dissent in Abington School District v. Schempp, 374 U.S. at 313:

(A) compulsory state educational system so structures a child's life that if religious exercises are held to be an impermissible activity in schools, religion is placed at an artificial and state-created disadvantage. Viewed in this light, permission of such exercises for those who want them is necessary if the schools are truly to be neutral in the matter of religion. And a refusal to permit religious exercises thus is seen, not as the realization of state neutrality, but rather as the establishment of a religion of secularism, ***.

Opponents of the proposed amendment, in asserting that religion belongs only in the home and church, overlook this reality. The proposed amendment would redress the present lack of neutrality by permitting voluntary prayer in our public schools.

While endorsing the proposed amendment, we would like to submit for the Committee's consideration some language we believe would strengthen it. The substance of the changes we suggest is indicated by underscoring in the following version of the amendment:

Nothing in this constitution shall be construed to prohibit prayer or other religious activity in public schools or other public institutions. Neither the United States nor any State shall require any person to participate in prayer or other religious activity, or influence the form or content of any prayer or other religious activity.

This version of the proposed amendment would expand its scope by permitting a variety of voluntary religious activity prayer, Bible reading, religious clubs, religious instruction, and so forth. But it would restrict the potential operation of the President's amendment by prohibiting government influence on the form or content of any prayer or other religious activity.

Let me elaborate on our reasons for these changes.

The 22 word prayer struck down as a violation of the Establishment Clause in Engle v. Vitale, 370 U.S. 421, 422 (1962), reads as follows: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our country."

That kind of prayer, routinely repeated every school day, is far removed from the kind of meaningful religious expression that should be permitted in the public schools. Hence our expansion in the proposed amendment to include "other religious activity."

Our version of the amendment would (1) treat persons of every belief or unbelief equally by prohibiting the government from influencing the form or content of the religious activity, and (2) overrule McCollum v. Board of Education, 333 U.S. 203 (1948), to the extent that case was based on the physical location of the program of released time religious instruction in the public schools.

I would like to expand on these two points in terms of Zorach v. Clauson, 343 U.S. 306 (1952) and the McCollum case, supra.

In Zorach, released time programs of religious instruction off the school premises were held constitutional. The only factual difference of any consequence between Zorach and McCollum, which struck down a released time program of religious instruction in the public schools, is the physical location of the religious instruction. The location of such activity should not be the conclusive determinant of constitutionality. Yet, as interpreted by the Supreme Court, that is the law of the land. It needs to be changed.

The mere physical use of a public school building is not the functional equivalent of state sponsorship or entanglement. (Many public schools are presently being used as meeting places for churches or synagogues on weekends.) Physical proximity does not automatically make church and state one. The use of public school buildings for religious activity should be permitted as an accommodation to the free exercise of religion.

The First Amendment does not bar cooperation between church and state. of course the state must do no more than cooperate in making its physical facilities available for the religious activity on the same basis as it would for any other activity, including any arrangement for financial reimbursement. Such a lack of entanglement would be constitutionally guaranteed by the language that we suggest be added to the proposed amendment, for it would prohibit the states from influencing the form or content of any prayer or other religious activity.

We have used the word "influence," rather than "prescribe," in order to make it clear that the state cannot, directly or indirectly, have anything to do with the form or content of the religious activity. This would not preclude school authorities from scheduling the school day as they see fit and from assuring that such matters as fire regulations are observed. However, it would permit our public schools, at the discretion of the school authorities, to cooperate with the people of the community in making the school building available for religious activity.

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