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of the church, while others reject them entirely;
and some in the literal truth of the scriptures,
while others believe them to be allegorical, teach-
ing spiritual truth alone or chiefly. ..." State
ex rel. Weiss V. District Board od School Dist. No.
8, supra, at 972.

Adoption of the Prayer Amendment would open the way for each of

these issues, and manifold others that divide religious groups,

to become the subject of political dispute.

It would invite the

adherents of each of the many religions represented in our nation to seek official sanction for its version of religious truth, if

only to ward off the efforts of others.

Testimony before the Committee, even by those who are generally supportive of the amendment, reveals that the problem

cannot be avoided.

It inheres in any attempt to formulate prayer

through a political process.

Thus, a spokesman for the National

Association of Evangelicals objected to the supposedly "non

denominational" prayer involved in Engel v. Vitale.

"That kind

of prayer, routinely repeated every school day, is far removed

from the kind of meaningful religious expression that should be permitted in the public schools." Statement of Robert P. Dugan,

July 29, 1982. Yet, it is apparent that prayers acceptable to the membership of the National Association of Evangelicals, prayers they would regard as a "meaningful religious expression," would contradict the deeply-held beliefs of many others.2/


if the Prayer Amendment were to be adopted, it is not obvious what alternative evangelicals would have to seeking modes of

prayer that would, in their view, offer their children an

opportunity for "meaningful religious expression."

The success with which the United States has managed its unique religious pluralism is in substantial part attributable to its having been able to avoid pitting religio's groups against


It should be noted, to the credit of Mr. Dugan and the Association he represents, that they are sensitive to this difficulty and urged revision of S.J.Res. 139 to preclude ary governmental influence on the content of prayers in the public schools.

one another in the political arena.

No doubt, the good will that

our traditions have fostered would lead many to act with restraint

even if the Prayer Amendment were adopted.

But the risk is none

theless great that adoption of the amendment, by inviting the establishment of official prayer, would lead to a significant increase in religious dissension.

The removal of a constitutional restraint upon the establish

ment of official prayers is not the only objectionable feature of the proposed amendment. In recent years, a number of school dis

tricts have authorized teachers to lead their classes in


at the beginning of the school day or to select students to do so.

Courts that have considered the practice have uniformly held it an

impermissible establishment of religion.

Karen B. v. Treen,

653 F.2d 897, affid 102 S.Ct. 1267 (1982); Kent v.


of Education, 402 N.E.2d 1340 (Sup.Jud.Ct. of Mass. 1980).


also, Collins v. Chandler Unified School Dist., 644 F.2d 759

(9th Cir. 1981), cert. denied 102 S.Ct. 322 (1981).

Adoption of

the Prayer Amendment would overturn these decisions and render

the practice permissible, almost certainly leading to its institution in some school districts. Although a policy permitting

students and teachers to lead prayers would avoid the need to compose official prayers, and the political divisiveness that would attend that activity, it would increase the risk of

religious activity in the nation's classroom that would be

deeply offensive to many parents and children.

Many, perhaps

most, teachers and students might be expected to act with sensi

tivity toward the diversity of beliefs represented among the

student body, but it seems hardly open to doubt that among the tens of thousands of teachers and millions of students in the

nation's public schools there would also be many who would regard

the opportunity to lead prayer as an opportunity to proselytize or who would merely act with insufficient sensitivity to the

beliefs of others.

The record in Kent v. Commissioner of Education,

11-323 0 - 83 - 27

supra, demonstrates that such concerns are not fanciful.

It dis

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closed that among the prayers offered by students were some that were clearly denominational, such as the Lord's Prayer and Hail Mary, and others that would undoubtedly be regarded by some as offensive because directed toward trivial secular objectives,

such as victory in a volleyball game.

Reliance upon the admini

stration and governance processes of the schools to avoid such

problems would place school officials in the intolerable position

of censoring prayers.

In brief, the offering of public prayers as part of the daily

routine of public schools cannot be accommodated within a society

as religiously varied as ours,

A constitutional amendment that

would remove all constitutional restriction on such prayers risks

both a significant increase in religious discord and daily affront to the religious sensibilities of large segments of the population. Nevertheless, the interests of those whose beliefs require such

prayer ought not to go unrecognized.

Opponents of the Prayer

Amendment have frequently suggested that those interests are suf

ficiently recognized by the opportunity for silent prayer and for

prayer in settings other than the schools.

Yet, the beliefs of

many parents and children appear to require more, an opportunity for a public profession of faith and for public prayer as part of the daily routines of life. Although the schools may not, as the courts have held, have a constitutional obligation to accommodate these beliefs, respect for the parents and children who hold them

ought, in my judgment, to lead us to do so as a matter of policy

if a suitable means

can be found for doing so.

As least, there

ought not be a constitutional obstacle to a school board's power

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In a number of school districts, children have sought per

mission to

use schoolrooms, before or after the commencement of

the school day, for voluntary prayer or devotional Bible-reading. Several lower courts have held that the establishment clause denies the schools authority to confer such permission. See

Brandon v. Board of Education of the Guilderland Central School

Dist., 635 F.2d 971 (2d Cir. 1980), cert. denied 102 S.Ct. 970 (1981); Johnson v. Huntington Beach Union High School Dist., 137 Cal. Reptr. 43 (Ct. App.), cert. denied 434 U.S. 877 (1977); Trietley v. Board of Education, 65 A.D.2d 1 (1978). Although

the concerns that have led the courts to this conclusion,

especially the risk that the imprimatur of the schools would be

placed upon religious activities and the fear that children might

be coerced into attendance, are matters that require serious atten

tion, one wonders whether a solution for them might not be found

that would more fully recognize and accommodate the needs of

families whose beliefs do require an opportunity for their children to open the day with public prayer. This is not an appropriate

occasion for a full constitutional analysis of the issue, but I

may say that I am far from persuaded that a carefully designed

policy would not pass judicial muster.

Cf., Widmar v. Vincent,

102 U.S. 269 (1981).

A careful study of the issues by the

Judiciary Committee might greatly assist local school districts

that wish to consider such a policy and lead the way toward a

resolution of the school prayer issue that is more sensitive to

the contending interests than S.J. Res. 199.


Twenty years ago, in Engel v. Vitale, 1

the Supreme Court

invalidated the practice of government sponsored prayer in the

public schools.

In 1951, the New York Board of Regents, "aware

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Heritage to our youth," devised a prayer to be recited at the opening of classes each day to "strengthen ... the belief in a Supreme Being..2

The prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our

parents, our teachers and our country." The Board of Education for the New Hyde Park school district directed that the Regents' prayer "be said daily in our schools.

- 3

The prayer was said aloud at the beginning of classes each day, led by the teacher or

a student singled out by the teacher for this purpose.


who did not wish to participate were excused from participation or permitted to leave the classroom.

The court, in a six-to-one decision, held that "by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. -4 Justice Black, speaking for the Court, explained that "this very practice of

establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious Freedom in

As a result, Black noted, the framers of the First


Amendment "knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval," and the First Amendment "was added to the Constitution" in part to assure "that the people's religions (would) not be subjected to the pressures of government for change each time a new political administration is elected to office. - 6 Thus, Black concluded, the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official

NOTE. --Footnotes appear at end of article.

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