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children of minority faiths

our children, in other words

who are

injured most severely.

Our opposition to the proposed amendment is based fundamentally

on a deep commitment to religious values and to the principle that such

values must be espoused freely as

an act of individual conscience.


people of all faiths, the purpose of prayer is spiritual communion with


The home, church and synagogue are the proper, time-honored

places which provide the appropriate setting for a communion with God.

There, religious yearning and the needs of the soul can find


Mechanical recitation of prayers in public schools,

particularly prayers composed by government officials with a view

toward popular acceptance, degrades these true religious experiences.

It is harmful to the cultivation of the religious spirit.

Supporters of this Amendment often erroneously complain that the

Supreme Court's decision has banned prayer from the public schools and

thus denies students who wish to pray freedom of religion.


example, Martha Rountree in a letter on behalf of the "Leadership

Foundation" states that "our Supreme Court said children could not pray

in public schools.

In fact, they went so far as

to say that children

could not even be given quiet time so that they could say silent


The White House, which should know better, has issued a

memorandum (hereafter White House Memo) which states

(at p.

21) that

the Amendment is necessary in order to permit, for example "voluntary

prayer before meals." According to a recent Gallup Poll, the single

largest reason why Americans support the amendment is because "people

should have the opportunity to pray when they wish to."

The perception

that prayer is forbidden in the public schools is a distortion of

applicable constitutional principles and what the Supreme Court


the lower courts

have held.

All that is prohibited by the Constitution is officially sanctioned prayer. Purely private prayer, such as saying grace or the

like has always been permitted.

We believe that, unless disruptive of

school routine, such prayer is constitutionally protected.

We are

unaware of any instance in which school officials have attempted to

prohibit such purely private prayer.

In the unlikely event that school

offficials bar private prayer, we would be quick to join in any legal challenge to that practice. The simple fact is that this is a


used to drum up support for an amendment that will destroy

the First Amendment.

The Constitution, Majority Rule

and Minority Rights

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Whether the Constitution shou ld be amended to permit prayer in

the public schools is, without more,

an important issue, meriting the

most careful consideration, particularly since it is a portion of the

Bill of Rights which is in issue. Indeed over 500 constitutional

profic lawyer lawyers have already signed a statement (attached as Appendix B)

circulated by us urging that the Bill of Rights should not be tampered


Here we believe there is an even more important principle at


that of constitutional protection for the rights of


The Bill of Rights was added to the Constitution, in the

now classic words of Justice Jackson:

... to withdraw certain subjects from the
vicissitudes of political controversy, to
place them beyond the reach of majorities
and officials and to establish them as
legal principles to be applied by the
courts. One's right to *** freedom of
worship * * * and other fundamental rights
may not be submitted to vote; they depend
on the outcome of no elections.

West Virginia Bd. of Educ. v. Barnette, 179 U.S. 624, 638 (1943).

Many of the Founders believed that a bill of rights was

unnecessary because the rights protected by those amendments were

natural rights, not subject to defeasance by government.

That view

fortunately did not prevail, and restrictions on the powers of

majorities were written into our fundamental law.

The Bill of Rights, then, are a self-imposed limit on the power of majorities. Proponents of this amendment seem unwilling to

acknowledge that there ought to be restrictions

even self imposed

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on the rights of majorities to do as they please in the public


They seem to be saying "these are our schools. Since we are

the majority, and this is a democracy we will do what we wish in those

schools, athough you may excuse yourself if you wish."

The difficulty we have as a minority group with this argument is

that, no matter how nicely phrased, it means that there are to be

officially recognized "insiders" and "outsiders"

and no matter how

much proponents speak of the Judeo-Christian tradition, we know that we

are outsiders.*

No matter how minimal the penalty for being an

outsider, the fact remains that a person so branded ceases to be an

equal member of society, participating as of right and not by


The willingness of the administration to suggest that only

theists are worthy of constitutional protection (see p. 19, infra)

bears out

our fears.

Surely, there can be tyrannies of a minority.

And surely in a

democracy minorities must ordinarily bow to the will of the majority.

But until now we as

a society have accepted the notion that amongst

those areas where the minority need not submit to the rule of the

majority is the non-establishment of religion.

No compelling need has,

or can, be shown to justify a change in that wise and beneficient

policy which has served this country so well.

of course, a majority of Americans say they support "voluntary"


We doubt that most of those Americans would support the

present amendment if they understood all of its implications. And we

recognize that members of this Committee will be under heavy pressure

to support this proposal

although we are certain that the pressures

will not be one sided.

But we believe that the public and members of

this Committee will recognize that this amendment will imperil one of

See, for example, the quote from Justice Story cited at p. 16.

this society's most glorious traditions

government neutrality toward


Teaching Morality

It is sometimes argued that prayer recitation and Bible reading

some how encourage a state of national and personal morality.* This

argument was described as "false both in theory and practice"

testimony given to this Committee 18 years ago by Rabbi Joachim Prinz.

He said in that at that time:

Religion is not a device to be used by the
government for the advancement of its ends.
It is against the interests of religion itself
when it is manipulated by government in order
to maintain and propagate specific, and often
transitory, societal codes. The truths of
religion grow out of profound faith and convic-
tion, not of the needs of a particular society.

This argument for the amendment re

rests on the fact
that the teachings of religion include ethical
values and that religion has played an essential
part in heightening and strengthening moral
responsibility. This is true. Religion provides
moral and ethical education. I question, however,
whether "public school religion" can or ever has
had that effect. Indeed, there is good evidence
that state-sponsored religion does not increase
the public morality of a country that endorses it.

When I was educated in German public schools,
they provided as part of the regular curriculum
separate religious instruction for children of
the three major faiths. At that time, all
children in public schools from the ages of 6
to 18 were required not merely to recite a
prayer at the beginning of each school session
but to receive religious instruction twice a
week. That system continued in the following
decades. In the 1920's and 1930's, I myself
taught Jewish public school children as part
of the state-sponsored program of religious

Did that program effectively teach morality

to the German people? If it did it would be For example, the "Leadership Foundation," referred to above at p. 4, has urged its supporters to write Congress as follows in upport of school prayer:

We need to get drugs, sex, immorality and disrespect for laws out of our schools and God back in our schools.

Then maybe our schools will be able to once again teach our children how to read, write and spell.

difficult to explain the rise of Hitler and
the total moral collapse and even depravity
of the German people, which resulted in the
torture and death of millions of Jews and

I might add, though not from personal
experience, that similar regular religious
instruction in the public schools of Russia
was given for decades prior to the Bolshevik
revolution on 1917. In Russia, as in Germany,
the concept of separation of church and state
was not recognized as it has been in this
country That concept has long seemed to me
to be part of a broader concept of total
freedom of thought and conscience that has
preserved the liberties of Americans through-
out our history.

The Myth of "Voluntary" School Prayer

The arguments in support of this proposal, by President Reagan

and others, depart in many ways from reality. Perhaps the most

egregious error is the assumption that it is possible to make prayer a

matter of free choice for school children when it is written, chosen,

organized, conducted or sponsored by teachers, other school officials,

or even the state legislature.* Sponsors of the proposal recognize,

of course, that any proposal that expressly permitted school

authorities to require pupils to participate in a particular form of

worship would impair freedom of religion. However, they give this hard

fact only token recognition. They say that the second sentence of the

proposed amendment effectively bars any such coercion.

In the words of

the "Questions and Answers on the President's Proposed Voluntary School

Prayer Amendment," issued by the White House on May 6, any pupil "can

simply refuse to participate."

The State of Alabama recently enacted as law which permits "willing" students to offer the following prayer:

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We acknowledge you as the Creator and Supreme
Judge of the world. May your justice, your
truth and your peace abound this day in the
hearts of our countrymen, in the counsels of
our government, in the sanctity of our home s
and in the classrooms of our schools. In the
name of our Lord amen.

The reference to prayer "In the name of our Lord" makes this prayer, which would be permissible under the proposal before this Committee, unacceptable to Jews.

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