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It is my impression that courts may have found some of the offensive introductions to which Dean Sandalow refers. I have not seen the Legislative Reference Service report, but when I looked at a number of cases 3 or 4 months ago, I had the impression that the silent prayer decisions were divided.

It is important, on the fact situation to which Professor Bender refers, to note that while the court did hold in Widmar v. Vincent, that it was not unconstitutional for universities to permit group voluntary prayer after school, on the same terms as they let other groups meet, the Supreme Court has treated universities quite differently than they have treated high schools and elementary schools. They have drawn some theoretically problematic distinctions in the financing cases, and they denied certiorari on an extraordinary case in the second circuit, Brandon v. Guilderland Board of Education, in which the court said that it was a violation of the establishment clause for student groups to be allowed to meet after school during what was called the school day, while the students were still around, on the same terms as other groups.

So I do not think it is as clear as Professor Bender suggests that schools can find ways to accommodate students who desire to pray, under the present decisions.

Senator SPECTER. I had reviewed that legislative—that legislative analysis and my feeling was that it was an open question, and not really clear.

If you would care to submit something further, Professor Rees, we would be pleased to receive it.

Mr. Rees. I will. [Subsequent to hearing Mr. Rees submitted the following article:)

October 4, 1982

From: Grover Rees III
To: United States Senate Judiciary Committee

Re: Silent Prayers and the Federal Courts

Opponents of a constitutional amendment to restore the

right to pray in public schools are fond of observing that

students already have such a right: they can pray whenever they

wish, so long as they pray silently.

On one level, this statement

is both correct and trivial: One can do anything anywhere so long

as one is careful to do it in such a way that nobody notices.

The use of the term "right" to denote the fact that one


pray with impunity so long as one prays silently would entail

a radical reappraisal of the extent to which human rights should be said to exist in authoritarian and totalitarian regimes

around the world.

In this sense of the word, students have the right

to pray in school not only in the United States but also in the

Soviet Union.

Citizens of South Africa and Cambodia have the

right to call for the overthrow of the government, so long as

they do it silently.

At the Senate Judiciary Committee hearing on the school

prayer amendment, several amendment opponents argued that state

or local education authorities have the power to grant or

recognize a right to silent school prayer in a different and more

important sense,

even under the current decisions of the

Supreme Court.

The principal authority for this argument seems

to be Gaines v. Anderson, 421 F. Supp. 337 (D. Mass. 1976), in

which a three-judge federal court upheld a state statute providing

that "a period of silence not to exceed one minute in duration shall

be observed for meditation or prayer" in public schools. So

far as

I am able to determine, Gaines is the only reported federal

case holding that states may allow students even such limited

opportunities for prayer during the school day.

Although I

believe the case to be correctly decided, this belief is based

largely upon my conviction that the Supreme Court's prayer

decisions were incorrect.

Gaines is inconsistent with the

language and the reasoning of the Supreme Court opinions and

other federal decisions on school prayer, and should not be

cited as

a reliable indication of how other federal courts

will treat official endoresement of the opportunity for silent

prayer or meditation in public schools.

The opinion in Gaines relied on Justice Brennan's dictum

in Abington Township v. Schempp, 374 U.S. 203 (1963):

It has not been shown that readings from the speeches
and messages of great Americans, for example, or from
the documents of our heritage of liberty, daily
recitation of the Pledge of Allegiance, or even the
observance of a moment of reverent silence at the opening
of class, may not adequately serve the solely secular
purposes of the devotional activities (that were involved
in Schempp) without jeopardizing either the religious
liberties of any members of the community or the proper
degree of separation between the spheres of religion and

Id. at 281 (Brennan, J., concurring).

It is important to observe,

however, the context in which Justice Brennan's remarks were made.


He was responding to arguments that school prayers served valid

secular purposes, such as "fostering harmony and tolerance among the pupils, enhancing the authority of the teacher, and inspiring better discipline." Id. at 280. He did not even

purport to hold that official provision for silent prayer would

always be permissible; his allusion was designed simply to show

that audible prayers were not necessary to achieve any secular

purposes, since there were other means available that had

"not been shown" to be objectionable.

Moreover, Justice

Brennan's remarks would seem to have no application at all

to an official moment of silent prayer or meditation that

was not intended to serve only secular purposes such as

fostering harmony, inspiring discipline and enhancing the

authority of the teacher.

To the exact extent that opponents

of a "moment of silence" can succeed in convincing the court that its real purpose is to allow students the opportunity to worship God in a public setting, the "solely secular purposes"

rationale will be inapplicable.

Indeed, Justice Brennan pointed

out that one test of the constitutionality of the various

inspirational exercises

to which he alluded was whether they

"do in fact serve religious goals" as well

as secular ones.


at 281.

While it is true that courts are often de ferential

in their approach to legislative motive, reliance on such

deference as

a means of upholding the constitutionality of

official opportunities for silent prayer amounts to saying

that courts will permit legislatures to accomplish by

subterfuge what they will not be permitted to do overtly.

Such an approach can be expected to be as distasteful to

supporters of school prayer

many of whom wish to make

precisely the point that the United States is "a nation under

God" in which it is permissible to prefer religion over

nonreligion in ways that do not violate the free exercise

[blocks in formation]

Even if the courts were to find that a moment of

silence had a secular purpose

either by overlooking

the real purpose of the law, or by defining that purpose

as the accommodation o

free exercise rights, an approach

followed in Gaines but rejected in other federal decisions

it could be held unconstitutional either for having a

"primary religious effect" or because of the risk of

"entanglement" between the state and religion.

See Lemon

v. Kurtzman, 403 U.S. 602 (1972); Committee for Public

Education v. Nyquist, 413 U.S. 756 (1973).

A primary

religious effect might be established by evidence that

(whatever the motives of the legislature in passing the

law) students overwhelmingly regarded the moment of

silence as

a time during which they were expected to


"Entanglement" might be the supervision of the

exercise by the teacher, or perhaps the teacher's announcement

that the students were to meditate "or pray."


the Court has held that a law involving religion may

entail impermissible "political entanglement" if political

division over the wisdom or unwisdom of the law tends to

be along religious lines, or even tends to demarcate a religious



a nonreligious faction.

Lemon, supra.

No other federal court seems to have faced the problem

addressed in Gaines, but decisions in related areas suggest

that federal courts are increasingly impatient with laws

designed to permit even unobtrusive and attenuated breaches

of the court-created "wall of separation" between schoolchildren

and religion.

See, e.g.,

Stone V. Graham, 441 U.S. 39


("The pre-eminent purpose for posting of the Ten

Commandments on schoolroom walls is plainly religious in


and no legislative recitation of a supposed

secular purpose can blind us to that fact."); Nyquist, supra

(where the United States Supreme Court held that tuition

vouchers and tax credits available to students at religious and

nonreligious schools were unconstitutitonal, since most of

the vouchers and credits would in fact be used at religious

schools); Brandon v. Board of Education of Guilderland

Central School District, 635 F.2d 971 (2d Cir. 1980) (public

school need not allow a student group to meet after

school for voluntary prayers on the same terms as other

student groups are allowed to meet, since such meetings by

the student prayer group would violate the Establishment

Clause); Lubbock Civil Liberties Union v. Lubbock Independent

School District, 669 F.2d 1038 (5th Cir. 1982) (the Establishment

Clause forbids a school board to permit students "to gather

at the school with supervision either before or after regular school hours on the same basis as other groups

. . for any educational, moral, religious or ethical purposes," since such a provision "has the primary effect of advancing religion.").

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