Establishment Clause is historically correct - and it is not - it 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 (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 or the community censor prayers in public schools with which they generally - disagree.** - 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. or the This bedrock principle, one to which almost all citizens profess allegiance, is frequently subject to intense pressure when one other unpopular group appears on the scene. Today it is some of the cults. 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 inviolate. 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 - Hawaii. 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 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 DeSpain 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 acceptable 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 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 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. See e.g. 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). These 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 religion. 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. CONCLUSION 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. And 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 outlawing 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. |