« AnteriorContinuar »
Establishment Clause is historically correct
and it is not
surely does not follow that the Establishment Clause should be so
limited in an America vastly more complex than that of two hundred
In expounding a constitution, history has its place; it
cannot be controlling:
[T]he Constitution is meaningful only as a
(Rep.) Schwengel, The Prayer Amendment:
A Rebuttal, 24 s. C. L. Rev.
It is true that the amendment does not permit religious
favoritism in areas of public life other than prayer.
But even in that
context it would mean that public officials could permit only favored
religious groups, offering approved prayers, to meet in the public
schools or use public buildings or to allow government officials to
censor prayers in public schools with which they
or the community
More fundamentally, the damage done to the principle that
government should remain neutral as between sects would be irreparably
And, we might add, there were far fewer religious groups in this country than there are today. Indeed, even if Professor Rice is right about the purpose of the Establishment Clause, this amendment must be rejected because it would permit, indeed encourage, clashes between various Christian sects.
** And it would mean that a church could conduct its regular services in public buildings for extended periods of time, serving as substitute for synagogues and churches.
damaged in the public mind, and hence as a viable principle for
ordering our society.
This bedrock principle, one to which almost all citizens profess
allegiance, is frequently subject to intense pressure when one or the
other unpopular group appears on the scene.
Today it is some of the
Not so long ago it was the Seventh Day Adventists and the
Before that it was Jews, Catholics and Mormons.
In each of these cases,
the principle, sometimes battered and bruised,
has survived because the principle is accepted in the public mind as
But if this amendment passes, Congress and the state
legislatures will have authoritatively concluded that this principle is
not so inviolate after all.
The courts, too, will take note of this
determination and will no doubt be less willing than they are
enforce this principle in the face of popular clamor.
And the people,
too, will no longer recognize this principle as being a necessary
minimum for the survival of a religiously pluralistic society.
More broadly, it may be said that no controversy in human
history has caused more persecution, oppression and bloodshed than the
question of what is the true word of God and which is the correct way
to worhsip him.
The victims of the Inquisition were persons who
worshipped the same God as the Inquisitors; they suffered only because
they worshipped in a different way.
It has been a tragedy of history that these differences have
divided adults into hostile and rival camps.
It would be doubly tragic
if these divisions were
to be visited upon the public schools, which in
our Republic should unite children rather than divide them.
The portion of the President's Questions and Answers that refers
to the Lord's Prayer also contains an ambiguous statement which
suggests that those Americans who do not adhere to a faith that
includes a personal God are beyond the pale and deserving of no
This reduces to second-class status not
11-323 O-83 - 15
only atheists and humanists but also adherents of nontheistic
religions, despite the fact that the latter constitute a substantial
part of the population of one of our states
Some school officials may seek to avoid these pitfalls by
seeking acceptable non-denominational prayers
ones that have no
roots in any deeply held faith.
Thus, the secular members of the New
York State Board of Regents, after consultation with clergymen of
various religions, wrote its own prayer and recommended its use in the
schools of the state.
It read as follows:
Almighty God, we acknowledge our dependence
It was the recitation of this prayer that the U. S. Supreme
Court struck down in Engel v. Vitale, 370 U.S. 421 (1962), saying (at
in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by the government.
An extreme example of the trivialization brought about by the
effort to avoid offending any one is the so-called "cookie prayer"
which even omitted reference to any deity.
We thank you for the
flowers so sweet
birds that sing
De Spain v. DeKalb County School District, 384 F.2d 836 (7th Cir. 1968).
In sum, if we sanction the composing of religious exercises by
secular authority, we invite the creation of a new religion, designed solely for the classroom, and shaped not by any system of religious
beliefs but by a desire to avoid offense.
The expression of this "public school religion" is that of the
lowest common denominator which can be found among the formulations of
Jews reject references to Jesus, the Trinity and countless
other concepts peculiar to Christianity. Christians will be unhappy if
these formulations omit Jesus as the Messiah, and thus violate the very
essence of Christianity.
It is thus impossible to have a meaningful
prayer accept able to all religions
even to all theistic religions.
Inevitably, the "public school" prayer is a sterile rite, stripped of
all the vital elements that give meaning to a genuine communion with
Allowing public officials to select existing prayers which they
believe are acceptable to all rather than to compose their own is no
better. Existing prayers arise out of specific faiths and reflect
Supporters of the pending proposal deal with this fact
by ignoring it. Thus, the President's Questions and Answers say:
The Lord's Prayer and the Ten Commandments
This ignores the fact that the Ten Commandments are expressed, and even
numbered, differently by various sects.
And the Lord's Prayer, in
addition to appearing in different versions within the Christian
community, is entirely unacceptable to Jews for reasons stated in a
resolution adopted by the Synagogue Council of America in 1963:
The prayer is taken from the New Testament,
Accordingly, this prayer is of a sectarian
Prayer and Public Buildings
The proposed amendment also attempts to overrule those decisions
of the lower state and federal courts which prohibit the use of school
facilities for the conduct of student Bible and prayer clubs.
Lubbock Civil Liberties Union v. Lubbock Ind. School Dist., 669 F.2d
1038, rehearing and rehearing en banc denied,
1982); Brandon v. Bd. of Educ., 639 F.2d 971 (2nd Cir. 1980).
cases have determined that, in the context of the elementary and
secondary schools, such efforts, even if otherwise voluntary,
inevitably carry the imprimatur of the state, and thus establish
While we believe these cases are correctly decided, the Supreme
Court has yet to speak to this issue.
To amend the Constitution to
overturn decisions of the lower federal and state courts, is
inappropriate, particularly since the Supreme Court will undoubtedly
soon have an opportunity to pass on the Lubbock case.
Finally, the amendment seeks to guarantee the right to pray in
The White House memorandum is unable to cite a
single case in which a court has held that such prayers, in and of
themselves, are unconstitutional.
Indeed, the Courts have consistently
held to the contrary.
See Jaffee v. California Dept. of Motor
Vehicles; O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979); Marsa v.
Wernik, 86 N.J. 232, 430 A.2d 888 (1981).*
The Supreme Court decisions barring official prayer in public
schools do not prevent children from offering whatever prayers are
prompted by their consciences or the teachings of their parents.
20 years of experience shows that those decisions have not undermined
America's religious faith.
On the contrary, they have stood as a
reminder and symbol of the freedom of conscience that is America's
Even Chambers v. Marsh, F.2d petition for cert. pending, # 81-23, cited in the White
at 19, n.50, as out lawing prayer in public buildings, held only that the legislature could not favor one religion by selecting, over an extended period of time, a chaplain of one denomination, and that the legislature could not pay the chaplain.* The latter holding would not be affected by this amendment, since it does not deal with government subsidies of religion. The former holding might well be overturned by this amendment, which as we have noted, would permit government officials to favor one religion over another. But it is precisely in this respect that the amendment is most radical -- and most dangerous.