PREPARED STATEMENT OF JAMES M. SMART, JR.

Mr. Chairman and Members of the Committee:

It is my privilege to appear before this committee to discuss S.J. Ses. 199, the "School Prayer Amendment." I come to you as an attorney with experience in litigation related to the First Amendment's "Establishment Clause" and the "freedom clauses" of that amendment.1 I have also been a student of religious freedom and constitutional law because of my personal views on the importance of religious freedom.

I will suggest a perspective on these issues about which this committee can form a consensus, and about which, I believe, the committee can take some practical and constructive action, thereby providing solid leadership for the entire Congress on a very difficult and sensitive issue.

I. THERE IS A SIGNIFICANT PROBLEM

The President and the Senators sponsoring this proposal surely feel that court decisions and administrative actions of school officials in the past twenty years have resulted in a severe decline in national respect for the values which religion has tended to support. Many people believe that passage of this amendment would help to advance respect for authority in school children, and would tend to aid the development of a stronger national consensus on the value of traditional morality. While I am in great sympathy with these motives, I also feel it is most urgent to consider whether or not this amendement would really address the most significant problem.

The 1962 and 1963 Supreme Court cases dealing with schoolsponsored religious activities, 2 which this amendment seeks to overturn, have been the cause of much misunderstanding and misapplication. These cases have, unfortunately, been construed by lower courts, school attorneys, and administrators, in such a way as to cause the State, in some cases, to assume a role of opposition and hostility to religion and religious exercise.

The Religion Clauses of the First Amendment 3 were set as dual sentinels to safeguard the concepts of "private voluntarism" and "governmental neutrality" in matters of religion. Thus, where lawyers and courts construe these clauses in such fashion as to frustrate both concepts (voluntarism and neutrality), a serious constitutional problem exists. The Supreme Court decisions on school prayer, properly understood and limited, never took us that far.5 Instead, it is the lower court decisions since 1962 that have departed from the philosophical underpinnings of the First Amendment. Documented examples of what I am talking about are set out in the appendix.

The subtle message of these decisions, communicated all across America, is that religious freedom is less worthy of protection than other freedoms. Opponents of religious freedom are fond of stating that one should engage in his religion at home, or in church or synagogue. That is certainly true, but it misleads if it is used to justify discriminatory restrictions against religious views and activities where other views and activities are accommodated.

The Supreme Court's 8-1 decision in Widmar v. Vincent6 in December, 1981, certainly went some distance in clearing up this confusion, striking down the regulation of the University of Missouri prohibiting student groups from engaging in "religious teaching" or "religious worship" on campus, where students were allowed to pursue every other special interest without restriction. The Court clearly announced the principle that the government has a duty to protect and accommodate the religious speech of individuals to the same extent as it affords protection and accommodation to speech on other subjects.

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Shortly after announcing the decision in Widmar, however, the Court refused to hear the appeal of the "Students For Voluntary Prayer" in Brandon v. Board of Education, involving similar issues at the high school level. In view of the Supreme Court's reluctance to deal with this issue with regard to public elementary and secondary schools, lower courts simply assume the safest route is to rule against groups asserting any such right for students.8 This only deepens the misunderstanding. this committee waits for the Supreme Court to resolve this problem, many personal rights and liberties may be abridged while the Congress sits idly by.

8

If

The prayer amendment, according to the Administration, is intended to overrule the Supreme Court decisions relating to school prayer, and to allow school districts and state boards of education to prescribe prayers in which students can participate. The amendment does not force states to sponsor prayers or prayer times, but appears to allow states a free hand in doing so. It therefore purports to authorize more governmental religious activity than is necessary to correct the restriction on student rights described above. Since it deals only with prayer and not with other religious activities, it falls short of protecting the rights of students to engage in other religious activities, such as discussing religion or reading religious materials.

If the proposed amendment, 9 on the other hand, were worded so as to protect student-initiated prayer, and were further worded so as to protect other types of self-initiated religious activities as well (by requiring schools to accommodate such activities to the same extent that it accommodates other voluntary student activities), it would serve to correct the existing problem without going so far as to authorize school authorities to prescribe and control prayer activities.

Such a proposal would appeal to the conservative (who laments the discrimination against voluntary religious activities because of the negative impact on traditional values), and would further appeal to many liberals (who would recognize that the proposal would address personal freedom of religion, not governmentally sponsored religious activities).

One way to accomplish the objective discussed, without fear of running into the constitutional challenge in the courts, is to propose and enact an amendment to the Constitution. Whether or not ratification would be a lengthy process is not at all clear, although I suggest that an amendment as suggested above would be far less divisive than the language originally proposed and, when properly understood, would more easily secure a consensus of support. An example of language that would seem adequate for such purpose is as follows:

Nothing in this Constitution shall be construed
to prohibit prayer or other religious activity
in public schools.

Neither the United States nor any State shall
require any person to participate in prayer or
other religious activity, nor shall any such
government influence the form or content of any
prayer or other religious activity.

While this language does not authorize the State or the classroom teacher to compose the prayer, it allows the students to compose and recite their own prayers. It would allow the teacher to use classroom time at the beginning of each day for a voluntary prayer time. Students volunteering to lead

the class in prayer could do so, or the teacher could simply set aside time for a moment of silent prayer.

An alternative measure, or companion measure, which this committee should consider is congressional legislation to deal with the improper restrictions on the rights of students to engage in voluntary religious activities. An example of such legislation, which I favor, is that proposed by the Christian Legal Society:

No public secondary school receiving federal
financial assistance, which generally allows
groups of students to meet during non-instruction-
al periods shall discriminate against any meeting
of students on the basis of the religious content
of the speech at the meeting, provided that the
meeting shall be voluntary and orderly and that no
activity which, is in and of itself unlawful need
be permitted.11

By concentrating on treating self-initiated religious activities the same as other self-initiated activities, the concepts of private vountarism and government neutrality are preserved. If properly implemented, such legislation should survive constitutional challenge.12 Such a statute would not supplant the proposed amendment, but would supplement the amendment, and enhance the cause of the amendment in several ways. First, Congressional support of a bill extending the Widmar principle to public secondary schools would demonstrate the resolve of Congress to deal with the loss of voluntary religious activity from public schools. Second, while an amendment would take at least several years to enact, a statute could correct relatively quickly the most recent and perhaps the most extreme of the judicial distortions at which the amendment is aimed. Third, such a bill, within its sphere of impact, could make an affirmative requirement of neutrality, rather than just removing the federal Constitution as the asserted reason for discrimination against religious activity.13 Finally, a statute extending this freedom to public schools focuses attention on those violations of freedom of speech and association that are most offensive to the overwhelming majority of American people.

I support the concept of a truly voluntary prayer amendment. I suggest, however, that this committee can provide constructive leadership by proposing certain changes in the Administration's amendment to make it more effective in dealing with the most urgent problem, and by sponsoring legislation capable of dealing with the problem while still representing the consensus of the American people. I am less concerned about the right of a teacher to lead a class in prayer1 14 I am about the right of the students to engage in truly voluntary, self-initiated religious activities. The rights of students are now being denied.

than

Congressional hearings on legislation such as that suggested could, I would assume, be consolidated with hearings on the prayer amendment. I urge this committee to act as decisively as possible. As this committee deliberates, precious freedoms of speech, association, and religion are being restricted as a result of a faulty apprehension of the meaning of the "Religion Clauses" of the First Amendment.

Thank you for your consideration of these thoughts. Any questions which any committee member may have are welcome.

1.

2.

FOOTNOTES

The witness was lead counsel for the student group in Widmar v. Vincent, U.S. 102 S.Ct. 269 (1981), the decision establishing that public university students are entitled to engage in voluntary religious activities on campus.

Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963).

3.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . .

4.

These concepts are derived from the concurring opinion of Justice Harlan in Walz v. Tax Commission, 397 U.S. 664 (1969). See also Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Goldberg, J., concurring). "Private voluntarism" as used in this paper is nothing more than individual freedom of choice in matters of religion. We are talking about the freedom of choice of private individuals, not governmental entities. The government's duty is one of neutrality and benevolent tolerance toward religion and religious exercise. These two concepts private voluntarism and governmental neutrality state the essence of the principles underlying the First Amendment Religion Clauses. If the Establishment Clause had been intended to restrict individual liberties, it would seem strange to have included it in the "Bill of Rights." History well reflects that the "neutrality" concept was intended by the framers as primarily a neutrality between different religions it was never intended to be a "cold shoulder" to religion in general. See Kurland, The Supreme Court, Compulsory Education, and The First Amendment's Religion Clauses, 75 West Virginia Law Review 213; Corwin, The Supreme Court as National School Board, 14 Law and Contemp. Prob. 3; Schwarz, No Imposition of Religion, The Establishment Clause Value, 77 Yale L.J. 692; T. Cooley, Principles of Constitutional Law (1890).

Therefore, if we remain true to history, we must recognize that the drafters of the First Amendment never sought to discourage religion in any way, but rather to provide a benevolent accomodation for religious exercise, while carefully safeguarding against allowing a particular denomination to gain control of the govern

ment.

5. Engel (supra) and Schempp (supra) struck down religious activities which were promoted and sponsored by the schools. These cases never dealt with self-initiated, voluntary, student religious activities.

7. 635 F.2d 971, 977-79 (2d Cir. 1980), cert. denied, 102 S.Ct. 970 (1981).

8.

9.

For example, see the case of Lubbock Civil Liberties Union v. Lubbock Independent School District, 669 F.2d 1083 (5th Cir. 1982), described in the appendix.

Courts could still construe the provision of the state constitution to be religious activities on school property. All the amendment does is to remove the Establishment Clause as a justification for restricting religious activities.

The text of the proposed amendment: "Nothing in this Constitution shall be construed to prohibit individuals 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."

10. This language is almost identical to the proposal made by Robert P. Dugan, Jr., in his testimony on July 29, 1982, speaking in behalf of the National Association of Evangelicals. The concepts of the two proposals are identical. According to information at my disposal, Dean Kelley of the National Council of Churches indicated in his testimony on July 29, that he also would support this type

of an amendment, while opposing the language of the original proposal. Certainly there are others who oppose the present proposal but would be sympathetic to a reworded proposal as suggested above. I have removed the words "or other public institutions" from the amendment because I feel there is presently little need for the amendment to extend beyond schools. Further, there is the possibility that the restriction upon the government could be construed so as to prohibit chaplains in legislatures or other public places from serving as they do presently.

11. The Christian Legal Society, of which I am a member, also suggests an alternative proposal which removes the word "religious" from preceding the word "content", making the proposal more of a free speech bill generally. I personally prefer to limit the reach of the bill, leaving to secondary school administrators some remaining discretion (whatever the courts will leave them) with regard to excluding certain activities and viewpoints from the school grounds. The following observations are submitted as to this proposed legislation:

1. The legislation is restricted to secondary schools.

2.

3.

4.

It would apply only to those schools receiving federal
financial assistance.

It applies to schools that "generally" allow student
meetings, thereby conforming to the language of the
Supreme Court in Widmar.

It is limited to the rights of students, and does not
address itself to the rights of faculty, staff, or
outsiders.

12. The Fourteenth Amendment's due process and equal protection clauses incorporate several individual constitutional rights as binding on the states, including the freedom of speech, Fiske v. Kansas, 274 U.S. 380 (1927), freedom of assembly, DeJonge v. Oregon, 299 U.S. 353 (1937), and free exercise of religion, Cantwell v. Connecticut, 310 U.S. 296 (1940). Section Five of the Fourteenth Amendment provides that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Therefore Congress has general authority to enact legislation requiring states to respect such constitutional rights. In addition, of course, Congress has power to attach conditions to grant programs, as long as those conditions are themselves constitutional. E.g. Fullilove v. Klutznick, 448 U.S. 448 (1980). 13. It is conceivable that a state or federal court opposed to permitting such religious activities could construe a provision of the state constitution to forbid the accommodation of religious activities. The amendment would not preclude such a result, since the amendment seeks primarily to correct the erroneous assertion that the federal constitution requires discrimination against religious activity.

14. While I find Justice Stewart's dissent in Engel and Schempp to be compelling and appropriate, I nevertheless feel that the unfortunate results from the "school prayer cases" can be minimized, and am therefore less concerned about directly overturning these decisions. My primary concern is with personal freedom in matters of religion.

ENCLOSURE.