67. See State ex rel Finger v. Weedman, 55 S.D. 343, 226 N.W. 348 (1929); State ex rel Dearle v. Frazier, 102 Wash. 369, 173 P. 35 (1918); Herold v. Parish Bd. of School Directors, 136 La. 1034, 68 So. 116 (1915); People ex rel Ring v. Board of Educ., 245 Ill. 334, 92 N.E. 251 (1910); State ex rel. Freeman v. Scheve, 65 Neb. 853, 91 N.W. 846 (1902); State ex rel. Weiss v. District Bd., 76 Wis. 177, 44 N.W. 967 (1890). For a discussion of these cases, see Boles, The Bible, Religion, and the Public Schools 108-32 (1965); Harrison, The Bible, the Constitution and Public Education, 29 Tenn. L. Rev. 363. 386-89 (1962); Note, Bible Reading in Public Schools, 9 Vand. L. Rev. 849 (1956). 68. See Comment, The Supreme Court, The First Amendment, and Religion in the Schools, 63 Colum. L. Rev. 73, 87 (1963). 69. See cases and authorities cited in note 67, supra. 70. See, e.g., Kurland, supra note 22; Pollack, supra note 44; Kauper, supra note 38; Cahn, supra note 34; Choper, Religion in the Public Schools: A Proposed Constitutional Standard, 47 Minn. L. Rev. 329 (1963). But see Rice, supra note 31; Griswold, Absolute is in the Dark A Discussion of the Approach of the Supreme Court to Constitutional Questions, 8 Utah L. Rev. 167 (1963). - 71. 72. 73. 74. Administration Statement, supra note 32, at 32. Id., at 34. 370 U.S., at 431. 75. Choper, supra note 70, at 344; see also authorities cited therein. 76. Abington School District v. Schempp, supra, 374 U.S., at 290 (Brennan, J., concurring). 77. People ex rel. Ring v. Board of Education, 245 Ill. 334, 351 (1910). See also Herold v. Parish Board of Education, 136 La. 1034 (1915); State ex rel. Weiss v. District Board, 76 Wisc. 177 (1890); State ex rel. freeman v. Scheve, 65 Neb. 853 (1902); State ex rel. Finger v. Weedman, 55 S.D. 343 (1929). 78. Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 227 (1948) (Opinion of Frankfurter, J.). The point is illustrated in Schempp, where the children's father permitted them to participate in religious activities "which were contrary to the religious beliefs which they held," because he did not want his children to be labeled as "odd balls" and "atheistic" and to "have to stand in the hall outside their 'home room'" as if they were being punished "for bad conduct." 374 U.S., at 208, 208-09 n.3. 79. See Part 3, infra. 80. Cushman, The Holy Bible and the Public Schools, 40 Cornell L.Q. 475, 495 (1955). 84. See Administration Statement, supra note 32, at 33-34. 85. 86. Pollack, supra note 44, at 72-73. See id., at 73; Choper, supra note 70, at 348-50; but see Kauper, supra note 38, at 1062. 87. Administration Statement, supra note 32, at 28. 88. 89. See text at notes 37-39, supra. Lemon v. Kurtzman, 403 U.S. 602, 622 (1971). See Meek v. Pittenger, 421 U.S. 349, 372 (1975); Committee for Public Education v. Nyquist, 413 U.S. 756, 795-96 (1973); Walz v. Tax Commission, 397 U.S. 664, 695 (1970) (Harlan, J., concurring); see also Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680 (1969). For a critical view, see Gaffney, Political Divisiveness Along Religious Lines: The Entanglement of the Court in Sloppy History and Bad Public Policy, 24 St. Louis L. Rev. 205 (1980). 94. Committee for Public Education v. Nyquist, 413 U.S. 756, 796 (1973), quoting Walz v. Tax Commission, 397 U.S. 664, 694 (Harlan, J., concurring). See also Cahn, supra note 34, at 983. 95. See Harris v. McRae, 448 U.S. 297, 319-20 (1980) ("[T]hat the funding restrictions in the Hyde Amendment may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause."). 96. See Lemon v. Kurtzman, 403 U.S. 602, 623 (1971) ("Political fragmentation and divisiveness on religious lines are likely to be intensified" when "successive and very likely permanent annual appropriations . . . benefit relatively few religious groups."). 97. Freund, Statement Relating to School Prayer, Hearings on S.J. Res. 148 Before the Subcomm. on Constitutional Amendments of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. 23, 24 (1966). 98. Larson v. Valente, 102 S.Ct. 1673, 1684 (1982), quoting Everson v. Board of Education, 330 U.S. 1, 15 (1947). See Zorach v. Clauson, 343 U.S. 306, 314 (1952); Epperson v. Arkansas, 393 U.S. 97, 104, 106 (1968). 99. Larson v. Valente, 102 S.Ct. 1673, 1683 (1982). 100. Abington School District v. Schempp, supra, 374 U.S., at 315 (Stewart, J., dissenting). 101. Rice, supra note 31, at 710. 102. Administration Statement, supra note 32, at 32. 103. See text at notes 37-39, supra. 104. Administration Statement, supra note 32, at 28. 105. Ibid. 106. Only three times in our history has the Constitution been amended to "correct" decisions of the Supreme Court. The Eleventh Amendment overturned Chisolm v. Georgia, 2 Dall. 419 (1793), which had held that a State was subject to suit by a citizen of another State; the Fourteenth Amendment overturned Dred Scott v. Sanford, 19 How. 393 (1857), which had held that blacks were not "citizens;" and the Sixteenth Amendment overturned Pollack v. Farmers Loan & Trust Co., 157 U.S. 429 (1895), which had held an unapportioned direct tax on income to be unconstitutional. 107. Kauper, Statement Relating to School Prayer, Hearings on S.J. Res. 148 Before the Subcomm. on Constitutional Amendments of the Senate Committee on the Judiciary, 89th Cong., 2d Sess. 601, 605 (1966). 108. Freund, supra, note 97, at 25. 109. Ibid. 110. It should be noted that the Administration has significantly overstated the likely impact of the proposed amendment. In describing "judicial rulings restricting school prayer," for example, the Administration notes that, "[i]n one case, for example, a school principal's order forbidding kindergarten students from saying grace before meals on their own initiative was upheld." Administration Statement, supra note 32, at 14, 16. The implication is that the proposed amendment would preclude such a decision. Nothing could be farther from the truth. The issue in Stein v. Oshinsky, 348 F.2d 999 (2d Cir. 1965), was not whether the school's decision to allow a prayer violated the Establishment Clause, but, rather, whether its decision to exclude the prayer violated the Free Exercise Clause. The latter issue is not affected in any way by the proposed amendment. Indeed, the Administration's apparent criticism of Stein is especially ironic, for the Administration professes that a central purpose of the amendment is "to allow diversity of state and local approaches" and to accord deference to the decisions of "state and local authorities." Administration Statement, supra note 32, at 30, 29. That, of course, is precisely what Stein did. The Administration's criticism of Stein thus suggests that its real goal is not to foster local control, but to promote prayer. The Administration's analysis of several other decisions is similarly ill-considered. See, e.g. the Administration's discussion of Karen B. v. Treen, 653 F.2d 897 (5th Cir. 1981), aff'd mem. 102 S.Ct. 1267 (1982). Administration Statement, supra note 32, at 17. 111. See, e.g., Abington School District v. Schempp, supra, 374 117. See Congressional Research Service, supra note 23, at 9 n.24. 118. 1981), aff'd mem. 102 S. Ct. 1267 (1982); Kent v. Commisioner of Education, 402 N.E. 2d 1340 (Sup. Jud. Ct. Mass. 1980); State Board of Education v. Board of Education, 108 N.J. Super. 564, 262 A.2d 21, aff'd, 57 N.J. 172, 270 A.2d 412 (1970). 121. Id., at 278. The Court explained that, "[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups," and "to justify discriminatory exclusion from a public forum based on the religious content of a group's intended speech, the University must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Id., at 273-74. 125. Prior to Widmar, the lower federal courts were divided. Compare Reed v. Van Hover, 237 F.Supp. 48 (W.D. Mich. 1965) (holding that such organizations can meet on school property) with Brandon v. Board of Education, 635 F.2d 971 (2d Cir. 1980) (holding that such organizations cannot meet on school property). 126. The essence of Widmar is "equality." Any grant of special benefits to religious organizations would thus pose a very different problem. See 102 S. Ct., at 276 n.13. 127. Tribe, American Constitutional Law 825 (1978). 128. 102 S. Ct., at 276 n.14. 129. In Lubbock Civil Liberties Union v. Lubbock Independent School District, 639 F.2d 1038 (5th Cir. 1982), the court, despite Widmar, invalidated a school board policy authorizing "students to gather at the school with supervision either before or after regular hours on the same basis as other groups. . . to meet for any educational, moral, religious or ethical purposes so long as attendance at such meetings is voluntary." In reaching this result, however, the court emphasized the unusual factual background of the case and the fact that the "explicit authorization of religious meetings" arose not out of a general policy concerning student activities, but out of a specific "policy setting forth guidelines on religion in the school." Id., at 1048. 130. See e.g., Reed v. Van Hoven, 237 F.Supp. 48 (W.D. Mich. 1965), which sets forth a series of guidelines governing the permissible activities of religious organizations in public schools. See generally Toms & Whitehead, The Religious Student in Public Education: Resolving a Constitutional Dilemma, 27 Emory L.J. 3 (1978); Comment, supra note 111, at 457-62. 131. 374 U.S., at 225. 132. I have not addressed the question of prayer in "public institutions" other than public schools because the courts have consistently upheld prayers in all other contexts in which the issue has arisen. See, e.g., O'Hair v. Andrus, 613 F.2d 931 (D.C. Cir. 1979); Marsa v. Wernik, 86 N.J. 232, 430 A.2d 888 (1981). Thus, it is not clear what purpose the proposed amendment might have. Although the Administration cites Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982), that decision focused, not on prayer as such, but on the state legislature's funding of only one chaplain, of one denomination, to offer legislative prayers for sixteen consecutive years. The funding issue presumably would not be affected by the proposed amendment. 11-323 0 - 83 - 29 PREPARED STATEMENT OF NORMAN REDLICH My name is Norman Redlich. I am Dean and Professor of Presently, I serve as co-Chairperson of the Commission on Law and Social Action of the American Jewish Congress and I am a member of the Board of Overseers of the Jewish Theological Seminary. I also served on that Seminary's special commission to study the question of the ordination of women in the Conservative Rabbinate. I mention the latter affiliations because while I appear here as a student of constitutional law, and in that capacity oppose the enactment of S.J.R. 199, my views on the subject are motivated in large part by a firm religious commitment. I consider myself a civil lib ertarian, and have been active in civil liberties and civil rights causes for many years. My opposition to this amendment, however, stems not only from my concern for civil liberties, but my abiding concern for the survival of religious freedom as we have known it in this country. I recognize that in considering a constitutional amendment, such as is proposed by S.J.R. 199, the issue is not necessarily whether the Supreme Court's school prayer decisions have correctly interpreted the First Amendment, but rather whether, quite apart from that Amendment, religious exercises should be permitted in the public schools. The question, therefore, is not simply correctness of the interpretation of the Establishment Clause, but whether that interpretation, as set |