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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

years ago.

In expounding a constitution, history has its place; it

cannot be controlling:

[T]he Constitution is meaningful only as a
living document. It must be interpreted in
order to offer meaningful guidance in new
and modern situations. If it needs no legal
interpretation today, the Supreme Court
should not be doing so, and we should select
a group of historians to simply search the
documents and explain the framers' intent,
which we should then follow absolutely. The
absurdity of supposing that the framers'
intent should override our Court's interpre-
tation can be fully realized when we consider
the fact that the framers could not possibly
have even imagined the problems of prayer in
the public schools. There were no public
schools as we know them when the framers lived;
education was carried on almost completely in
church-related schools where religious exercises
were accepted without question.*

(Rep.) Schwengel, The Prayer Amendment:

A Rebuttal, 24 s. C. L. Rev.

723 (1972).

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

Jehovah's Witnesses.

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

now to

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

constitutional protection.

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
upon Thee, and we beg Thy blessings upon us,
our parents, our teachers and our country.

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

p. 425):

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
We thank you for the food

we eat
We thank you for the

birds that sing
We thank you for


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

all faiths.

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

our Creator.

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

their tenets.

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
are reflections of our Judaeo-Christian
heritage that could not fairly be described
as instruments for the imposition of narrow
sectarian dogmas on school children.

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,
the basic source of Christianity. The
designation "Lord" used in the title refers
to Jesus, whom Christians regard as "Lord."
Eminent Christian authorities, both Catholic
and Protestant, insist on the distinctively
and uniquely Christian character of this prayer.

Accordingly, this prayer is of a sectarian
nature and should not be recited by Jews.

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.

See e.

Lubbock Civil Liberties Union v. Lubbock Ind. School Dist., 669 F.2d

1038, rehearing and rehearing en banc denied,

F. 2d

(5th Cir.

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

public buildings.

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

House Memo

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.

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