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a common accord among the disciplines in the school population of New York.

Senator SPECTER. Mr. Rees, do you have a comment?

Mr. REES. What this signifies to me, the alleged offensiveness not only of the words of the prayer, but of the other details-whether the prayer is said standing up and so forth-is that somebody can be found who will object to any prayer or to any accommodation of prayer. It is important to remember that not everyone on this panel would accept even the moderate and very thoughtful proposal that Dean Sandalow has made.

And it is crucial to remember that-although there is nobody on this panel representing this position-you have some constituents, and I have met some people, who are offended in very much the same way by the absence of prayer in the school today. They believe that that is not a neutral position. They believe that when schools treat everybody, Brezhnev and Reagan and George Washington, as real and important, except God who is not mentioned at all, that this is not a form of neutrality; that a subtle or not-sosubtle message about God is being conveyed to their children.

This puts the Government between a rock and a hard place. It does not, I think, compel the conclusion that the opponents of the amendment are suggesting, which is that there has to be one solution for every school district and that the solution has got to be no prayer at all.

Now, what does compel that conclusion is, I think, another underlying assumption, which is a double standard for evaluating decision making that happens in courts and decision making that happens in communities.

When it comes to the Supreme Court, we are told, well, certainly you might not agree with this decision or that decision, but if the courts are generally doing a good job then we must leave the courts alone and not resort to such radical measures as constitutional amendments. When it comes to communities, however, we are told that if even a few communities are likely to do something offensive, something that we here at this table would not want them to do, then we should deprive all communities of the power to choose among the different solutions.

I do not care whether you call having a prayer and not forcing anyone to participate in it merely offensive, or whether you call it a certain kind of coercion. If you call it coercion, you have to give me another word for real coercion. But whatever it is, you have to remember that it is not going to offend or coerce anyone any more than the people who are not allowed to begin their school day with a prayer now feel offended and coerced.

Senator SPECTER. Thank you very much, Mr. Rees.

[The prepared statements and submissions of Messrs. Sandalow, Stone, Redlich, Bender, and Van Alstyne follow:)


I want to thank the members of the Committee for inviting me to testify regarding Senate Joint Resolution 199, which pro

poses a constitutional amendment relating to prayers in public

schools and other public institutions.

Because of the limited

time available, I shall confine my testimony to the most important and most controversial feature of the proposed amendment, the abandonment of virtually all constitutional restric

tions on prayer in the public schools.

In Engel v. Vitale, 370 U.S. 421 (1962), the Supreme Court invalidated a local school board's policy requiring students at the beginning of each school day to recite a prayer composed by

the New York Board of Regents.

One year later, in Abington

School District v. Schempp, 374 U.S. 203 (1963), the Court

invalidated a requirement that public schools open each day with a selection and reading of verses from the Bible, followed by

student recitation, in unison, of the Lord's Prayer.

In both

cases, the Court rested upon the establishment clause of the

first amendment, which under prevailing constitutional doctrine is made applicable to the states by the fourteenth amendment.

S.J. Res. 199 seeks to overturn these and several decisions by

lower courts, both state and federal, that have restricted prayers

in the public schools in a number of other settings.

It would do

so by the simple and forthright expedient of amending the Consti

tution to provide that "Nothing in this constitution shall be con

strued to prohibit individual or group prayer in public schools.

The only qualification to this sweeping renunciation of

constitutional authcrity is contained in the pro; osed her ment's

second sentence:

"No rer' on shall be required by the United

States or by any State to participate in prayer."

Before discusing the merits of the proposed amendment, it

may be useful to consider briefly the nature of the question that the congress must decide in determining whether to adopt S.J.Pes.

199. Proponents of the amendment often seem to argue, if only obliquely, that a constitutional amendment overturning Engel, Schempp, and related decisions is justified because those decisions rest upon (what are asserted to be) erroneous interpreta

tions of the first and fourteenth amendments.

An examination of

the question whether the courts did err in those cases would carry us very far into constitutional theory and is, in my view,

unnecessary and perhaps irrelevant to the issue that the Congress

must now decide.

Our constitutional tradition does not impose

upon Congress responsibility for reviewing the courts' constitutional decisions and proposing an amendment whenever it concludes that the courts have strayed from the Constitution's true meaning. Neither the processes nor the resources of Congress are adequate

to that task.

The question that congress must decide, to put the

point somewhat differently, is not a question of law, but a

question of policy: whether the welfare of the nation would be served by removing from the Constitution all restrictions upon prayer in the public schools? I turn now to that question.

President Reagan, in proposing the amendment contained in

S.J.Res. 199, wrote that it would merely "restore the simple

freedom of our citizens to offer prayer in the public schools.

With deference, I submit that the disarming simplicity

of the President's characterization cloaks the real issues that

the proposed amendment raises, issues that are considerably more

complex than his statement suggests.

To begin with, no constitutional amendment is required to

restore the freedom of children to pray in school.

As reported

in a recent study by the Congressional Research Service, 21

states have adopted statutes requiring or permitting schools to observe periods of silence during which students may meditate or

pray. Ackerman, Legal Analysis of President Reagan's Proposed Constitutional Amendment on School Prayers 9 (Cong. Res. Serv. 1982). The only courts that have considered the practice have sustained its constitutionality, id., at 8-9, a conclusion that is

undoubtedly consistent with the Supreme Court's decisions in

Engel and Schempp.

See Abington School District v. Schempp,

supra, at 280-21 (Brennan, J., concurring).

The courts have

[blocks in formation]

Res. 199 would, thus, not be simply to permit prayer in public

schools, for prayer in public schools is not now generally for

bidden by the Constitution, but to permit it in the forms and

in the circumstances in which it is currently impermissible. The position of the amendment's proponents is that, so long as individuals cannot be compelled to participate, any form of

prayer in the public schools should be permitted in any circum


In their view, the content of and circumstances for

prayer in the public schools should become the subject of

political decision or, failing political decision, should be

left to school officials and teachers in each of the tens of

thousands of classrooms in the United States.

I hold a very

different view.

Although I am inclined to believe that several

lower courts have been unduly restrictive in the limits they

have imposed upon prayer in public schools, I think that the

removal of all constitutional limitations invites a mixture of

politics and religion threatening to the body politic and

inconsistent with our traditions of religious freedom and

tolerance. An analysis of the varying practices that would become constitutionally permissible if the proposed amendment were to be adopted offers a framework for developing the reasons

for these concerns.

The Prayer Amendment was deliberately drafted to permit desi

sions regarding the content of prayers to be prescribed by ordinary political processes. A state might thus prescribe a prayer or it

might leave communities free to do so.

It is a truism, but one

that bears repeating, that Americans worship God in many ways.

If the amendment is adopted, the question that must arise in

each state and each school district is which of the ways should

be prescribed.

One need not suppose that that issue will be

divisive in every community to recognize that it will be the sub

ject of intense, perhaps bitter conflict in many. Prayers often begin with a recitation of a biblical verse. Is the King James Version or the Douay to be used. 1/

Shall the New Testament be avoided

in deference to the beliefs of Jewish children?

Shall the

Bible be avoided in deference to the beliefs of the increasing

number of Americans who are neither Christians nor Jews?

Differences about the place of the Bible in prayer are

merely illustrative of the broad range of disagreements with

which the political process would be required to contend if the

proposed amendment were

to be adopted.

The forms and content of

prayer, for the many millions of Americans who regard it seriously,

are matters of vital importance, for prayer is an expression of their profoundest beliefs. Yet the beliefs that are expressed in

prayer are the source of deep divisions among our people, at times

even among the adherents of what might generally be regarded as a

comon religious tradition.

As the Supreme Court of Wisconsin

observed many years ago, among Christians some

believe the doctrine of predestination, while
others do not; some the doctrine of eternal punish-
ment of the wicked, while others repudiate it; some
the doctrines of the apostolic succession, and the
authority of the priesthood, while others reject
both; some that the holy scriptures are the only
sufficient rule of faith and practice, while others
believe that the only safe guide to human thought,
opinion, and action is the illuminating power of
the divine spirit upon the humble and devout heart;
some in the necessity and efficacy of the sacraments


See, e.g., State v. District Board of School Dist. No. 8 of
Edgerton, 44 N.W. 967 (Wisc. 1890), a suit by Catholic
parents to prohibit devotional readings from the King James
version of the Bible.

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